IN THE CASE OF:	  

		BOARD DATE:	  9 August 2012

		DOCKET NUMBER:  AR20120002365 


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:

* she be sent before a medical evaluation board (MEB) and a physical evaluation board (PEB)
* correction of her DD Form 214 (Certificate of Release or Discharge from Active Duty) to show she was medically retired by reason of a disability

2.  The applicant states when she was discharged from the Army, she had a permanent medical profile for her ankles.  She could no longer run, wear boots or combat gear, fire her weapon, and she took a modified Army physical fitness test (APFT).  She wore sneakers and was unable to participate in any training requiring her to wear combat gear.  Her injuries are still active and have severely deteriorated over the years. 

3.  The applicant provides her DD Form 214 and 417 pages of medical records, dated between June 1993 and December 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.  The applicant's records show she enlisted in the Regular Army on 24 June 1993 and she held military occupational specialty 75D (Personnel Records Specialist).  She was assigned to the 90th Personnel Support Battalion, Germany.

3.  Her records are void of the specific facts and circumstances surrounding her discharge action.  However, she provides a Standard Form 600 (Chronological Record of Medical Care), dated 2 July 1997, wherein it shows she was treated on that date at the Psychiatry Clinic, Landstuhl Regional Medical Center (LRMC), Germany, on a walk-in basis as a self-referral.  The examining psychiatrist noted the applicant stated she desired to get out of the Army and had submitted her chapter paperwork.  He also noted that she appeared to have depressive symptoms due to difficulty adjusting to a miscarriage that occurred in May 1997. 

4.  On 11 July 1997, the applicant underwent a mental status evaluation at LRMC, Germany.  The examining psychologist diagnosed her with a "personality disorder, not otherwise specified" and stated she did not have a psychiatric condition that warranted disposition through medical channels, met the retention requirements of Army Regulation 40-501 (Standards of Medical Fitness), and did not require a medical board.  He also stated her condition was a deeply ingrained, maladaptive pattern of behavior of long duration.  

5.  The examining psychologist cleared the applicant for any administrative action the command deemed appropriate.  He also stated the severity of her condition resulted in significant impairment in her ability to function in a military environment. 

6.  A Standard Form 88 (Report of Medical Examination), dated 15 July 1997, shows she underwent a medical examination on that date.  The examining physician noted the applicant had bilateral chronic plantar fasciitis and chronic depression/personality disorder.

7.  A DA Form 3349 (Physical Profile), dated 25 July 1997, shows she was given a permanent profile of "2" on that date for the lower extremities due to chronic plantar fasciitis.  The profile indicated she was able to wear combat gear, fire a rifle, lift up to 25 pounds, and walk/run at her own pace and distance.  It also indicated she was able to perform the APFT except for the two-mile run, but could bike, walk or swim as an alternate event.

8.  She was honorably discharged from active duty on 8 August 1997.  She completed 3 years, 11 months, and 6 days of creditable active service.

9.  The DD Form 214 she was issued confirms she was discharged under the provisions of Army Regulation 635-200, paragraph 5-13, by reason of a personality disorder.

10.  The applicant provides numerous medical records that show she was treated for a variety of illnesses/injuries while serving on active duty.  She also provides numerous medical records that show she received treatment from several different Department of Veterans Affairs (VA) medical centers for a variety of illnesses/injuries since her discharge from the Army.

11.  Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel.  Paragraph 5-13 provides that a Soldier may be separated for a personality disorder which interferes with assignment to or performance of duty.  The regulation requires that the condition is a deeply ingrained maladaptive pattern of behavior of long duration that interferes with the Soldier’s ability to perform duty.  It further specifies that the service of Soldiers separated under this provision will be characterized as honorable unless it is an entry-level status separation, in which case it will be uncharacterized.  

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It also states MEB/PEBs 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, chapter 3.  It does not state that Soldiers who receive a permanent profile of "2" are required to be medically boarded.

13.  Army Regulation 635-40, paragraph 25-1, 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 member reasonably may be expected to perform because of his or her office, rank, grade, or rating.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before that service member can be medically separated or retired.
14.  Army Regulation 40-501, paragraph 3-35, states a personality disorder may render an individual administratively unfit rather than unfit because of physical disability.  Interference with performance of effective duty in association with this condition will be dealt with through appropriate administrative channels.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's record is void of the specific facts and circumstances surrounding her discharge.  However, the evidence of record shows she was diagnosed by a psychiatrist with a personality disorder that was sufficiently severe enough to impair her ability to effectively perform her military duties.  Her DD Form 214 shows she was honorably discharged under the provisions of Army Regulation 635-200, paragraph 5-13, by reason of a personality disorder. 

2.  Although she received a permanent profile of "2" for the lower extremities due to chronic plantar fasciitis while she was on active duty, the profile indicated she was able to wear combat gear, fire a rifle, lift up to 25 pounds, walk/run at her own pace/distance, and perform an alternate APFT.  It did not require her to be referred to an MEB/PEB.  

3.  There is no evidence in her available record and she did not provide any evidence to show her condition or any other medical condition warranted a referral to an MEB or a PEB or that she could not perform her duties as a personnel records specialist due to her ankle condition.  The mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.

4.  In the absence of evidence to the contrary, it is presumed her separation processing was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized her rights.  

5.  In view of the foregoing, there is insufficient evidence to support the 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)                                         AR20120002365





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ABCMR Record of Proceedings (cont)                                         AR20120002365



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