IN THE CASE OF:	  

		BOARD DATE:  3 January 2013

		DOCKET NUMBER:  AR20110024598 


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 her discharge be voided and that she be retired by reason of permanent disability.

2.  The applicant states that she was discharged without a medical board and that she suffers from multiple traumatic brain injuries from two improvised explosive devices (IEDs), post–traumatic stress disorder (PTSD) chronic, panic anxiety disorder, patellofemoral syndrome, and shrapnel.  She states she was sexually assaulted by two Soldiers and received both in and out-patient treatment.  She also states her medical processing was stopped and she was unjustly discharged because she was openly transgendered.

3.  The applicant provides a one-page letter explaining her application, a copy of her Social Security Administration award of benefits, and copies of her Department of Veterans Affairs (VA) Progress Notes that are all dated subsequent to her discharge. 

CONSIDERATION OF EVIDENCE:

1.  The applicant’s records appear to be somewhat incomplete but show that the applicant was a single male when he enlisted in the Regular Army on 25 August 2005 for a period of 3 years and 17 weeks, training as an infantryman, and a $20,000 enlistment bonus.  He completed his one-station unit training at Fort Benning, Georgia and was transferred to Fort Riley, Kansas for his first duty assignment. 

2.  He deployed to Iraq on 5 February 2007 and was wounded on 17 May 2007.  He was promoted to the pay grade of E-4 on 25 August 2007 and departed Iraq on 20 April 2008 for return to Fort Riley.  His records show that at that time he was married with three dependents. 

3.  On 20 February 2009, he completed training as a CH-47 Helicopter Repairer and was awarded military occupational specialty 15U1O.  Upon completion of his training he was transferred to Katterbach, Germany for assignment to an aviation company.

4.  After his arrival in Germany it appears that the applicant decided to “come out” in terms of his transgender identity.  When off duty, he started to dress in typical female attire and went to local taverns.  He was taking Activan and became intoxicated and two Soldiers took advantage of him and proceeded to rape him.  The applicant was sent for further treatment at Walter Reed Army Medical Center (WRAMC) for 1 month and then to Fort Meade, Maryland for further psychiatric treatment.

5.  The applicant’s commander referred the applicant for a mental status evaluation because he started wearing earrings and make-up. On 25 November 2009 he underwent a mental health evaluation and was diagnosed as having:

* AXIS I:  Gender Identity Disorder, Anxiety Disorder, NOS 
* AXIS II:  Histronic Personality Disorder

6.  The examining psychologist opined that the applicant suffered from a         pre-existing psychiatric disease that is incompatible with further military service and that there was insufficient evidence to make a confident diagnosis of PTSD.  The psychologist recommended that he be discharged under the provisions of Army Regulation 635-200, paragraph 5-17 for a condition that is not a disability.

7.  On 17 December 2009, the commander of the Warrior Transition Unit at Fort Meade notified the applicant that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200, paragraph 5-17 for other designated physical or mental conditions based on his recent diagnosis of gender identity disorder and anxiety disorder.

8.  On 11 January 2010, officials at the Patient Administration Division indicated that the applicant was not enrolled in the Medical Evaluation Board process due to pending administrative actions.

9.  After consulting with counsel the applicant elected not to submit a statement in his own behalf.
10.  On 27 April 2010, the appropriate authority approved the recommendation for discharge and directed that he be furnished an Honorable discharge Certificate.

11.  The record is silent as to when the applicant received a name change. However, on 4 June 2010 when he was honorably discharged under the provisions of Army Regulation 635-200, paragraph 5-17, due to a condition that is not a disability, he was discharged under a female first and middle name of “Nicole Amber.”  The applicant had served 4 years, 9 months, and 10 days of active service. 

12.  In the processing of this case a staff advisory opinion was obtained from the Office of the Surgeon General (OTSG) which indicates that the applicant was diagnosed with a boardable condition that required a referral to a Medical Evaluation Board (MEB) in accordance with Army Regulation 40-501 for determination of fitness status at the time of separation.  OTSG officials further indicate that the applicant was referred to a MEB on 15 May 2009 and on 4 June 2010 the MEB was involuntarily terminated so that administrative separation for misconduct could be initiated.  However; on 17 December 2009 separation action was initiated under Army Regulation 635-200, paragraph 5-17, under other designated physical or mental conditions based on Gender Identity Disorder and Anxiety Disorder NOS.  On 12 April 2012 the separation was approved.  Officials at the OTSG go on to state that in accordance with paragraphs 1-33a and 1-33b of Army Regulation 635-200, disposition through medical channels takes precedence over administrative processing.  Accordingly, the applicant was denied appropriate consideration of his/her medical conditions.  The applicant was provided the advisory opinion for comment and responded to the effect that she has been rated 100% service-connection for post-traumatic stress disorder which has not been addressed.

13.  Army Regulation 635-200 provides the basic guidance for the separation of enlisted personnel.  Paragraph 5-17 provides for the separation of Soldiers who have a physical or mental condition that potentially interferes with assignment to or performance of duty; however, the physical or mental condition does not amount to a disability or qualify for disability processing under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).

14.  Army Regulation 635-40 states that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  

15.  Army Regulation 635-40 also provides that the medical treatment facility commander will provide a thorough and prompt evaluation when a Soldier's medical condition becomes questionable in respect to physical ability to perform duty. 

16.  Army Regulation 40-501 (Standards of Medical Fitness) states personality disorders and adjustment disorders may render an individual administratively unfit rather than unfit because of physical disability.  Interference with performance of effective duty in association with these conditions will be dealt with through administrative channels.

17.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has an impairment rated at least 30% disabling.

18.  Title 38, U.S. Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

19.  There is a difference between the VA and the Army disability systems.  The Army’s determination of a Soldier’s physical fitness or unfitness is a factual finding based upon the individual’s ability to perform the duties of his or her grade, rank or rating.  If the Soldier is found to be physically unfit, a disability rating is awarded by the Army and is permanent in nature.  The Army system requires that the Soldier only be rated as the condition(s) exist(s) at the time of the PEB hearing.  The VA may find a Soldier unfit by reason of service-connected disability and may even initially assign a higher rating.  The VA’s ratings are based upon an individual’s ability to gain employment as a civilian and may fluctuate within a period of time depending on the changes in the disability.

20.  Army Regulation 635-40 states that 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.   

DISCUSSION AND CONCLUSIONS:

1.  Given the evidence provided by the applicant and the advisory opinion from the OTSG, it appears that action should have been completed  by the MTF to evaluate the applicant’s medical condition before administrative separation proceedings were finalized.

2.  To determine if any of the applicant’s conditions warrant a disability rating, the applicant should be afforded the opportunity to be properly evaluated by appropriate medical personnel and systems designed to determine the degree of disability a Soldier may have prior to separation.

3.  Accordingly, the Department of the Army Office of the Surgeon General should take appropriate action to issue the applicant invitational travel orders for the purpose of undergoing the appropriate medical processing and evaluations at an appropriate medical facility that has the capability to properly evaluate the applicant’s medical condition.

4.  Once a determination has been made as to the appropriate disposition of the applicant’s medical condition under the PDES, the applicant will be separated in accordance with the applicable laws and regulations, with entitlement to all back pay and allowances due him/her.

5.  In the event that a determination is made that the applicant should have been discharged under the PDES, these proceedings will serve as the authority to void his original discharge and to issue the appropriate separation retroactive to his/her original separation date.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ____X___  ___X__ _  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by the Office of the Surgeon General contacting the applicant to arrange, via appropriate medical facilities, a physical evaluation through the use of invitational travel orders to the applicant.  In the event that the applicant requires a medical evaluation board and physical evaluation board, the applicant will be afforded all of the benefits normally afforded individuals on active duty who are undergoing a medical evaluation board and/or a physical evaluation board.  Should a determination be made that the applicant should have been separated under the Physical Disability Evaluation System, these proceedings will serve as the authority to void his/her administrative separation and to issue him/her the appropriate separation retroactive to his/her original separation date, with entitlement to all back pay and allowances, less any entitlements already received. 

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to voiding his/her release from active duty and discharge and granting her retirement without undergoing evaluation under the physical disability evaluation system.




      _______ _  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)                                         AR20110024598





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ABCMR Record of Proceedings (cont)                                         AR20110024598



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