IN THE CASE OF:	   

		BOARD DATE:	  17 May 2012

		DOCKET NUMBER:  AR20110020821 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, correction of Item 28 (Narrative Reason for Separation) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 18 December 2009 to show he was discharged by reason of physical disability.  

2.  The applicant states he was not given a medical evaluation board (MEB) at the time of his discharge.  It has now been proven that his condition was a disability and he has been rated at 40 percent (%) which is supported by the included paperwork from the Department of Veterans Affairs (VA).

3.  The applicant provides 

* Crestwood Medical Center documentation pertaining to shortness of breath, hives, and anxiety attack (48 pages)
* Standard Forms 600 (Health Record - Chronological Record of Medical Care) (27 pages pertaining to his diagnoses and treatment for anxiety attacks)
* Report of Mental Status Evaluation, dated 22 July 2010
* DD Form 2808 (Report of Medical Examination), dated 29 July 2010
* DD Form 2807-1 (Report of Medical History), dated 27 July 2010
* DD Form 214 and Honorable Discharge Certificate
* two VA Rating Decisions

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP) on 30 June 2009.  He was discharged from the USAR DEP on 28 September 2009 and he enlisted in the Regular Army (RA) on 29 September 2009 in pay grade E-1 for a period of 4 years.  He did not complete advanced individual training for award of a military occupational specialty.

2.  He was presented to the Crestwood Medical Center Emergency Department, Huntsville, AL on 22 April 2010 due to shortness of breath and hives and was admitted.  He was placed on medication and discharged from the medical center on 23 April 2010.

3.  He was presented to the Crestwood Medical Center Emergency Department on 2 May 2010 due to pain at multiple sites (no known injury).  It was noted he left without receiving treatment.

4.  He was again presented to the Crestwood Medical Center Emergency Department on 8 July 2010 due to an anxiety attack.  He was evaluated and medically cleared for discharge from the medical center on the same day.

5.  A Report of Mental Status Evaluation, dated 22 July 2010, shows the applicant's behavior was bizarre.  He was fully alert and fully oriented.  His mood was anxious and depressed, thinking process was clear, thought content was normal, and his memory was good.  The examining medical doctor, a psychologist, stated:

	a.  The applicant had the mental capacity to understand and participate in the proceedings and he was mentally responsible.

	b.  The applicant had been evaluated at his command's request because of his depression, anxiety, and frequent medical appointments.  The evaluation was a mental health evaluation and consisted of a review of autobiographical documents, psychometric assessment, a review of notes by his therapist, and two face-to-face interviews.  The applicant's anxiety and depression had not improved in spite of the fact that he had received counseling and medication for both.

	c.  The applicant was experiencing no thoughts of self/other harm.  His depression and anxiety would probably worsen the longer he stayed in the military.  His personality style and limited coping skills prevent him from making 

an adequate adjustment to the military at that time.  Consequently, he had experienced a claustrophobic reaction, depression, and panic attacks.

	d.  He recommended the applicant be chaptered out of the Army in accordance with Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-17 (Other designated physical or mental conditions).  The applicant was cleared by the Behavioral Medicine Department (BMD) for separation and he would continue his follow-up at BMD.  The applicant stated he was eager to get out of the military and return to his home.

6.  His separation DD Form 2807-01, dated 27 July 2010, shows he was found qualified for service.  The form noted that he had been diagnosed with severe allergies and received treatment for an anxiety attack.

7.  On 19 August 2010, the applicant's company commander notified the applicant of his intent to initiate action to separate him under the provisions of Army Regulation 635-200, paragraph 5-17, due to a diagnosis of depression and anxiety, with an honorable discharge.

8.  On 19 August 2010, after consulting with counsel, the applicant acknowledged he understood the basis for the contemplated separation action under the provisions of Army Regulation 635-200, chapter 5-17, the rights available to him, and its effects.  He elected not to submit a statement in his own behalf.

9.  On 20 August 2010, the applicant's battalion commander recommended the applicant be separated under the provisions of Army Regulation 635-200, chapter 5-17.  On 23 August 2010, the appropriate separation authority approved the applicant’s separation action and directed the issuance of an Honorable Discharge Certificate.

10.  On 2 September 2010, the applicant was honorably discharged from active duty in pay grade E-2 under the provisions of Army Regulation 635-200, paragraph 5-17.  He was credited with 11 months and 4 days of creditable active service with no time lost.

11.  Item 25 (Separation Authority) of his DD Form 214 shows he was discharged under the authority of Army Regulation 635-200, paragraph 5-17.  Item 28 shows the narrative reason for his separation as a condition, not a Disability.

12.  On 21 July 2011, the VA awarded him a 40% service-connected disability rating for anxiety disorder (not otherwise specified) and allergic rhinitis.

13.  On 16 August 2011, the VA awarded him a 10% service-connected disability rating for mild asthma.

14.  Army Regulation 635-200, paragraph 5-17, provides for the separation of enlisted Soldiers for other designated physical or mental conditions.  A commander may approve separation under this chapter on the basis of other physical or mental conditions not amounting to disability and excluding conditions appropriate for separation processing under Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 5-11 or 5-13, that potentially interfere with assignment to or performance of duty.  The commander will refer the Soldier for a medical examination and/or mental status evaluation. 

15.  Army Regulation 635-40 sets forth policies, responsibilities, and procedures in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.

	a.  Paragraph 3-1 (standards of unfitness because of physical disability) of this regulation, in pertinent part, provides that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  The regulation states there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying.  Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.

	b.  MEBs are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualification for retention based on the criteria in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a Physical Evaluation Board (PEB).

	c.  Paragraph 4-17, provides that PEBs are established to evaluate all cases of physical disability equitably for the Soldier and the Army.  The PEB is not a statutory board.  Its findings and recommendations may be revised.  It is a fact-finding board for the following:
* 
investigating the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board
* evaluating the physical condition of the Soldier against the physical 1equirements of the Soldier's particular office, grade, rank, or rating
* providing a full and fair hearing for the Soldier as required under Title 10, U.S. Code, section 1214
* making findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability

16.  Army Regulation 40-501, paragraph 3-33, provides guidance for anxiety disorders.  It states the causes for referral to an MEB as are follows:

	a.  persistence or recurrence of symptoms sufficient to required extended or recurrent hospitalization; or

	b.  persistence or recurrence of symptoms necessitating limitations of duty or duty in protected environment; or

	c.  persistence or recurrence of symptoms resulting in interference with effective military performance.

17.  Army Regulation 40-501, paragraph 3-36, provides guidance for adjustment disorders.  It states that situational maladjustments due to acute or chronic situational stress do not render an individual unfit because of physical disability, but may be the basis for administrative separation if recurrent and causing interference with military duty. 

18.  Army Regulation 40-501, paragraph 3-41 provides guidance for allergic manifestations.  It states the causes for referral to an MEB are Allergic rhinitis, chronic, severe, and not responsive to treatment, Asthmas, and Allergic dermatoses.

19.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  The VA has neither the authority nor the responsibility for determining physical fitness for the military service.  It awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability.  



DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant was seen in the Emergency Department on 8 July 2010 with a chief complaint of an anxiety attack.  He was medically cleared for discharge on the same day.  He underwent a Mental Status Evaluation in July 2010 and his behavior was found to be bizarre.  The examining medical doctor, a psychologist, stated:

	a.  The applicant's anxiety and depression had not improved in spite of the fact that he had received counseling and medication for both.  His depression and anxiety would probably worsen the longer he stayed in the military.  His personality style and limited coping skills prevent him from making an adequate adjustment to the military at that time and consequently he had experienced a claustrophobic reaction, depression, and panic attacks.

	b.  He recommended the applicant be chaptered out of the Army in accordance with Army Regulation 635-200, paragraph 5-17.  The applicant was cleared by the BMD for separation and he would continue his follow-up at BMD.  The applicant stated he was eager to get out of the military and return to his home.

2.  The evidence of record supports the fact the applicant had not required treatment for depression and had an adjustment disorder with mixed emotional feelings.  There was not diagnosis of depression or anxiety disorder and he did not have any compensable Axis I diagnosis that would have merited an MEB referral.  Therefore, he was appropriately discharged for a condition, not a disability.  

3.  On 19 August 2010, he was advised of the contemplated basis for his separation action.  He consulted with counsel and acknowledged that he understood the basis for the separation action and its effects.  He was discharged accordingly on 2 September 2010.

4.  No medical evidence has been presented by the applicant to demonstrate an injustice in the medical treatment he received during his period of active duty.  The evidence of record confirms his separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

5.  There is no evidence of record and he has not provided any sufficient evidence that indicates he had a medically unfitting disability that was incurred or aggravated during his service in the Army which required physical disability processing.  Army Regulation 635-40 provides, in pertinent part, that the Army rates only conditions determined to be physically unfitting that were incurred or aggravated during the period of service.  He did not fail to meet medical retention standards and should not have been referred to an MEB/PEB.

6.  The VA rating decisions provided by him was also carefully considered.  However, the award of a VA rating does not establish entitlement to a medical discharge and/or medical retirement.  Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected.  In this case, he was properly evaluated and is being compensated for his service-connected medical conditions by the VA; however, there is no indication he suffered a disabling condition while in a qualifying duty status that would have supported his processing for retirement through medical channels.

7.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x___  ____x___  ____x___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      ___________x____________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20110020821



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ABCMR Record of Proceedings (cont)                                         AR20110020821



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