IN THE CASE OF:	  

		BOARD DATE:	  17 April 2012

		DOCKET NUMBER:  AR20110023359 


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 his honorable discharge be changed to a medical retirement.

2.  The applicant states he was discharged without the benefit of a military occupational specialty (MOS) Medical Retention Board (MMRB)/Medical Evaluation Board (MEB).  He is currently rated at 70 percent service connected disabled by the Department of Veterans Affairs (VA) including 50 percent for post-traumatic stress disorder (PTSD).

3.  The applicant provides his VA medical records for the period from July 2004 through 2009.  

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2.  He enlisted in the Regular Army on 5 November 2002 for a period of 3 years.  He had previously served 3 years of active service in the Regular Army.  

3.  Two DA Forms 4187 (Personnel Action) show he was absent without leave from 6 - 13 January 2004.

4.  There are no DA Forms 2627 (Record of Proceedings Under Article 15, UCMJ) in his official military personnel file (OMPF).

5.  A DA Form 4856 (Developmental Counseling Form), dated 11 March 2004, advised him he was being recommended for separation under paragraph 5-17 of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations).  

6.  A DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)) flagged him effective 12 March 2004 for elimination action.  

7.  On 23 March 2004, his commander notified him that he was initiating action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 5-17 (Other Designated Physical or Mental Conditions).  The commander stated the reason for his proposed separation action was he was diagnosed with an adjustment disorder (not otherwise specified).  He was recommending his service be characterized as honorable.

8.  The commander also advised the applicant of his right to: 

* consult with legal counsel prior to completing his acknowledgement
* a hearing before an administrative board if he had 6 or more years of active and reserve military at the time of separation
* submit a statement in his own behalf 
* obtain copies of documents that would be sent to the separation authority
* waive any of these rights
* withdraw any waiver at any time prior the separation authority approving her separation

9.  The applicant consulted with counsel and he waived his rights on the condition he receive an honorable discharge.

10.  The applicant's commander recommended him for separation under the provisions of paragraph 5-17 of Army Regulation 635-200.  The commander stated the applicant had been diagnosed with an adjustment disorder (not otherwise specified).

11.  The appropriate authority approved the recommendation for discharge and directed he be furnished an Honorable Discharge Certificate.

12.  On 26 April 2004, he was discharged by reason of a physical condition, not a disability.  He completed 1 year, 5 months, and 15 days of active service this period that was characterized as honorable.  He completed a total of 8 years, 
1 month, and 15 days of active and inactive service.

13.  His service medical records were not available for review.

14.  His VA medical records included medications, radiological reports, lab results, consult requests, and progress notes.

	a.  He has a combined VA disability rating of 70 percent and his rated disabilities include:

* PTSD rated 50 percent disabling
* lumbosacral or cervical strain rated 20 percent disabling
* paralysis of median nerve rated 20 percent disabling

	b.  According to the consult requests and progress notes he is being treated for PTSD.  The earliest diagnosis of PTSD was in September 2004.

15.  Army Regulation 600-60 (Physical Performance Evaluation System) covers the Physical Performance Evaluation System (PPES) AND requires active Army Soldiers with a permanent profile containing a 3 or 4 in one of the profile serial factors to be evaluated by an administrative screening board designated as the MMRB.  

	a.  This evaluation is to determine if Soldiers can perform satisfactorily in their primary occupational specialty or specialty code in a worldwide field environment. This regulation gives the duties and procedures of the MMRB.  

	b.  It also gives the procedures for processing the decision of the MMRB convening authority to recommend a Soldier for medical reclassification or to refer the Soldier into the Physical Disability Evaluation System (PDES) or the Reserve Component medical disqualification process, as applicable.  Soldiers will appear before an MMRB within 60 days from the date the DA Form 3349 (Physical Profile) is signed by the appropriate approving authority.

16.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, stated the medical treatment facility commander with the primary care responsibility evaluated those referred to him and would, if it appeared as though the member was not medically qualified to perform duty or failed to meet retention criteria, refer the member to an MEB.  Those members who did not meet medical retention standards were referred to a physical evaluation board (PEB) for a determination of whether they were able to perform the duties of their grade and military specialty with the medically-disqualifying condition.

17.  Army Regulation 40-501 (Standards of Medical Fitness), in effect at the time, provided information on medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures.  Paragraph 3–36 (Adjustment disorders) stated 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 635-200, paragraph 5-17, provides commanders with the authority to approve separations under this paragraph on the basis of other physical or mental conditions not amounting to disability and excluding those personnel who did not meet procurement medical fitness standards and those diagnosed with a personality disorder.  A recommendation for separation must be supported by documentation confirming the existence of the physical or mental condition.

DISCUSSION AND CONCLUSIONS:

1.  His service medical records were not available for review.  Therefore, in the absence of evidence to the contrary, it must be presumed his commander's recommendation for his discharge was supported by a diagnosis of an adjustment disorder (not otherwise specified).

2.  Due to the non-availability of his service medical records, there is no evidence he was diagnosed with or treated for PTSD prior to his discharge.  There is no evidence in his military personnel records that he was not medically qualified to perform his duties or that he failed to meet medical retention criteria because of condition amounting to a disability.  Therefore, there was no reason to refer him to an MEB.  The VA diagnosed him with PTSD in September 2004, 5 months after his discharge.

3.  The MMRB is an administrative screening board charged with the responsibility to evaluate a Soldier's ability or inability to physically perform duties required of his/her MOS in a worldwide field environment.  The MMRB is not part of the PDES but is a feeder into it.  There is no evidence he was assigned a permanent profile containing a 3 or 4 in one of the profile serial factors.  It appears the applicant has confused the requirements to appear before an MMRB with MEB proceedings.

4.  In the absence of evidence to the contrary, the available evidence shows that the applicant was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

5.  In view of the above, there is an insufficient basis to change his honorable discharge to a medical retirement.

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)                                         AR20110023359



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ABCMR Record of Proceedings (cont)                                         AR20110023359



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