IN THE CASE OF:	  

		BOARD DATE:	  14 June 2012

		DOCKET NUMBER:  AR20110023404 


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 that his reason for separation be changed to a medical retirement.

2.  He states he was diagnosed with anxiety disorder/post-traumatic stress disorder after being released from the military.  The disorder was diagnosed by the Department of Veterans Affairs (VA).  He had several visits with the mental health office while in the military but was never diagnosed with this disorder by the military.  He was also diagnosed with bilateral pes planus (commonly known as flat feet) by both the Army and the VA. 

3.  The applicant provides two VA rating decision documents.

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.  His military records show he enlisted in the Regular Army on 17 October 2007.  He was awarded the military occupational specialty of 11B (Infantryman).

3.  A Medical Command Form 4038 (Report of Behavioral Health Evaluation), dated 10 July 2008, shows he was fully alert, fully oriented, clear thinking, with normal thought content, and good memory.  The staff psychiatrist found him to have an adjustment disorder with depressed mood.

4.  A DD Form 2808 (Report of Medical Examination), dated 1 August 2008, completed in conjunction with his separation proceedings shows he was diagnosed with flat feet.  This document shows his physical profile as all "1's," i.e., he was found to have a high level of medical fitness and was found qualified for separation.

5.  His records maintained in the interactive Personnel Electronic Records Management System contain his separation documents.  Headquarters, 2nd Battalion, 27th Infantry Regiment, 3rd Infantry Brigade Combat Team, Memorandum for the applicant, subject:  Separation Under the Provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), Chapter 5, Paragraph 5-17, Other Designated Physical or Mental Conditions, dated 12 August 2008, indicated his commander initiated separation action against him because he was diagnosed with an adjustment disorder with depressed mood.  On the same date, the applicant acknowledged receipt of the memorandum of notification and that he had been advised of his right to consult with counsel prior to making any election of rights.

6.  On 13 August 2010, he acknowledged that he had been advised by his consulting counsel of the basis for the contemplated action to separate him under Army Regulation 635-200, Chapter 5 and its effects; of the rights available to him; and the effect of any action taken by him in waiving his rights.  He chose not to submit a statement on his own behalf. 

7.  His record is void of any additional medical documents from his active duty service.

8.  His record contains a DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 19 September 2008 that shows he was discharged under the provisions of Army Regulation 635-200, paragraph 5-17 (condition, not a disability) with an honorable discharge.  This form shows he completed 11 months and 3 days of active service.



9.  He provided a copy of his VA rating decisions showing that effective 7 October 2009, he was assigned:

* a 50 percent disability rating for anxiety disorder 
* a 30 percent disability rating for bilateral pes planus
  
10.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 5 of this regulation provides for separation for convenience of the government.  A command-directed mental health evaluation performed in connection with separation under paragraph 5-17 will be performed by a psychiatrist, doctoral-level clinical psychologist, or doctoral-level clinical social worker with necessary and appropriate professional credentials who is privileged to conduct mental health evaluations for the Department of Defense (DOD) components.

11.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System according to the provisions of Title 10, U.S. Code, chapter 61, and DOD Directive 1332.18.  It sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  It states 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.

12.  Army Regulation 635-40 further provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him/her and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board (MEB).  Those members who do not meet medical retention standards will be referred to a physical evaluation board (PEB) for a determination of whether they are able to perform the duties of their grade and military occupational specialty with the medically-disqualifying condition.

13.  Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-36, adjustment disorders, 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.

14.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade, or rating because of disability incurred while entitled to basic pay.

DISCUSSION AND CONCLUSIONS:

1.  His records show he was discharged under the provisions of Army Regulation
635-200, paragraph 5-17.  The reason given for separation was that he was diagnosed with an adjustment disorder.

2.  Medical documents completed in conjunction with his separation show he was diagnosed with flat feet.  However, a document completed in conjunction with his separation showing his physical profile indicated he was found to have a high level of medical fitness.

3.  Competent military medical authority found the only limiting condition he had was an adjustment disorder.  As such, there is no evidence he had an unfitting diagnosis that would require an MEB.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20110023404



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110023404



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1