IN THE CASE OF:	  

		BOARD DATE:	  24 April 2012

		DOCKET NUMBER:  AR20120003169 


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) on her DD Form 214 (Certificate of Release or Discharge from Active Duty), ending on 18 December 2009, to show she was discharged due to physical disability.  She also requests that she be assigned a disability rating for post-traumatic stress disorder (PTSD) and military sexual trauma (MST).

2.  The applicant states, in effect, she did not complete medical evaluation board (MEB) processing during her assignment to the Warrior Transition Unit.  Instead of being allowed to complete the process she was given a general discharge.  Therefore, her medical conditions were never fully evaluated even though she attempted to go through the process multiple times.  She was not rehabilitated so that she could return to her occupation, reclassified, or medically boarded.  

3.  She provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military record shows she enlisted in the Delayed Entry Program on 18 July 2002 and enlisted in the Regular Army on 3 July 2003.  She completed training and was awarded military occupational specialty 15Q (Air Traffic Control Operator).



2.  On 23 March 2009, she accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) for physically controlling a vehicle on or about 22 February 2009 while the alcohol concentration on her breath was equal to or exceeded .10 grams of alcohol per 210 liters of breath.  Her punishment included a reduction to pay grade E-4, a forfeiture of $1,063.80 pay for 2 months (suspended), and 45 days of extra duty and restriction.

3.  She received counseling for the following on:

   a.  26 March 2009 for restriction relating to an Article 15;
   
   b.  16 April 2009 for violation of 45 days of restriction; and
   
   c.  27 April 2009, she was counseled concerning her primary mission while assigned to the Warrior Transition Battalion Europe, and for driving while intoxicated (DWI).  She was advised that she was required to disclose all medication she was prescribed to her chain of command and that she should take her own medication as prescribed.  Additionally, she was counseled concerning the command's policies to restrict alcohol consumption by those individuals determined to be in a high-risk category and told that she was not allowed to consume alcohol or take over-the-counter medications.  

4.  A Report of Mental Status Evaluation, dated 13 May 2009, shows the applicant's behavior was normal.  She was fully alert and fully oriented.  Her mood was depressed, thinking process was clear, thought content was normal, and her memory was good.  The examining medical doctor, a psychiatrist, stated:

	a.  The applicant had been evaluated at the Schweinfurt Behavioral Health Clinic, Germany on 11 May 2009 and she was recommended for an administrative discharge in accordance with Army Regulation 635-200, paragraph 5-17, due to a diagnosis of adjustment disorder with depressed mood.

	b.  Based on the severity of the illness, the applicant was not likely to improve and could worsen significantly in the future.  She could prove to be a liability to a deploying unit.

	c.  The applicant met the retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, and there was no psychiatric disease or defect which warranted disposition through medical channels.

	d.  The problems presented by the applicant were not in his opinion amenable to hospitalization, treatment, transfer, disciplinary action, training, or reclassification to another type of duty within the military.  It was likely that efforts to rehabilitate or develop the individual into a satisfactory member of the service would be unsuccessful.  Nonetheless, they would continue to follow her in their clinic for treatment as long as she was in the area.

	e.  The applicant was psychiatrically cleared for any administrative action deemed appropriate by the command.  There was no diagnosis of PTSD or MST.

5.  She also received counseling for the following on:

* 4 June 2009 – command policies
* 14 and 23 July 2009 – missing appointments and restriction
* 22 July 2009 – separation under the provisions of Army Regulation
635-200 (Enlisted Administrative Separations), paragraph 5-17
* 31 August 2009 – monthly counseling
* 2 September 2009 – consideration and non-selection for promotion

6.  On 15 October 2009, she was convicted by a summary court-martial of one specification of wrongful use of marijuana between on or about 8 March and 7 April 2009.  She was sentenced to reduction to pay grade E-3 and confinement for 30 days.

7.  In a Memorandum for Record (MFR), dated 9 November 2009, the applicant's company commander stated:

	a.  the purpose of this MFR was to confirm the command's recommendation to separate the applicant under chapter 5-17 "(Personality Disorder)."

	b.  During his time as the applicant's commander he had not seen any potential for advancement or retention for the applicant.  Based on clinical recommendations it was unlikely that efforts to rehabilitate or develop the applicant into a satisfactory Soldier would be successful.

	c.  The applicant had been reduced in rank due to UCMJ action stemming from a drug-related incident.  She had shown zero desire to rehabilitate herself, despite being given multiple chances.

	d.  He believed it would be in the best interest of both the applicant and the Army for the applicant to be separated from the military.

8.  On 2 December 2009, the applicant's commander notified the applicant of his intent to initiate action to separate her under the provisions of Army Regulation 635-200, chapter 5, paragraph 5-17, Other Designated Physical or Mental Conditions, due to a diagnosis of an adjustment disorder with depressed mood, with an honorable discharge.  

9.  On 2 December 2009, after consulting with counsel, the applicant acknowledged she understood the basis for the contemplated separation action for Other Designated Physical or Mental Conditions under the provisions of Army Regulation 635-200, chapter 5-17, the rights available to her, and its effects.  She also indicated that she was a victim of sexual assault for which an unrestricted report was filed within the past 24 months and that she did not believe the separation action was a direct or indirect result of the sexual assault itself or of the filing of the unrestricted report.

10.  On 3 December 2009, the applicant's commander recommended that the applicant be separated for Other Designated Physical or Mental Conditions under the provisions of Army Regulation 635-200, chapter 5-17.  On 9 December 2009, the appropriate separation authority approved the applicant’s separation action and directed that she be issued a general discharge.

11.  On 18 December 2009, she was discharged, under the provisions of Army Regulation 635-200, paragraph 5-17.  She was credited with completion of 6 years, 5 months, and 16 days of net active service.

12.  Item 25 (Separation Authority) of her DD Form 214 shows "Army Regulation 635-200, paragraph 5-17."  Item 28 on her DD Form 214 contains the entry “Condition, Not a Disability.”  

13.  On 17 November 2010, the Army Discharge Review Board upgraded her general discharge to an honorable discharge.   

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 (Physical Evaluation for Retention, Retirement, or Separation) 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.  Commanders of medical treatment facilities (MTF's) who are treating Soldiers may initiate action to evaluate the Soldier's physical ability to perform the duties of his or her office, grade, rank, or rating.  The commander will advise the Soldier's commanding officer of the results of the evaluation and the proposed disposition.  If it appears the Soldier is not medically qualified to perform duty, the MTF commander will refer the Soldier to an MEBD.

   c.  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 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).

   d.  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 requirements 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 3-36, 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. 

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant underwent a mental status evaluation on 13 May 2009.  The evaluating psychiatrist stated that there was no psychiatric disease or defect which warranted disposition through medical channels.  In his opinion, the applicant was not amenable to hospitalization, treatment, transfer, disciplinary action, training, or reclassification into another type of duty within the military.  There was no diagnosis of PTSD and she was found to be mentally responsible and met the retention requirements of Army Regulation 40-501.

2.  During her period in the WTB she was punished under Article 15 of the UCMJ for DWI, convicted by a summary court-martial for the wrongful use of marijuana, and she received multiple counselings for misconduct.  In an MFR, her company commander confirmed the command's recommendations to separate her under paragraph 5-17.  Her commander stated that it was unlikely that efforts to rehabilitate or develop the applicant into a satisfactory Solider would be successful.  She had shown zero desire to rehabilitate herself, despite being given multiple chances.  

3.  On 2 December 2009, she was advised of the contemplated basis for her separation action.  She consulted with counsel and acknowledged that she understood the basis for the separation action and its effects.  She was discharged accordingly on 18 December 2009.

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

5.  She has provided no evidence to show the first time symptoms of PTSD surfaced or whether it was before or after she was discharged.  There is no evidence of record and she has not provided any evidence that indicates she had a medically unfitting disability that was incurred or aggravated during her 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.  

6.  At the time of discharge the applicant acknowledged that she had been a victim of sexual assault for which an unrestricted report was filed within the past 24 months; however, she did not indicate that she was suffering from PTSD as a result of this assault and there is no evidence available to support this claim.

7.  The available evidence does not support that the applicant had a medical/mental condition that required processing through the physical disability evaluation system.

8.  In view of the evidence in this case, there is no basis for granting her 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)                                         AR20120003169



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120003169



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1