IN THE CASE OF:	  

		BOARD DATE:  18 September 2012

		DOCKET NUMBER:  AR20120003416 


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 change of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 29 April 2004 to show he was medically discharged.

2.  The applicant states he was discharged due to major depression and it was determined in April 2005 by a line of duty determination that he was unfit for duty, but it was not reflected on his DD Form 214.

3.  The applicant provides:

* A memorandum from a psychiatrist from Headquarters, Dwight D. Eisenhower Army Medical Center, Fort Gordon, GA, subject:  Certificate of Psychiatric Evaluation, RE:  (applicant's name and social security number), dated 25 November 2003
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 29 April 2004
* DA Form 2173 (Statement of Medical Examination and Duty Status), dated 24 February 2005
* Page 1 of a Narrative Summary (NARSUM) for a Medical Evaluation Board (MEB) Evaluation, dated 9 March 2005
* Page 1 of a Department of Veterans Affairs (VA) Rating Decision, dated 26 May 2010

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 service medical and dental records are believed to be on permanent loan to the VA and are not available for review.

3.  The applicant, an Army National Guard (ARNG) Soldier with prior Regular Army service, was ordered to active duty on 7 February 2003 in support of Operations Enduring Freedom and Iraqi Freedom.

4.  He served in Kuwait from 17 April 2003 through 18 March 2004 and he was released from active duty on 29 April 2004 and returned to his ARNG unit.

5.  A Certificate of Psychiatric Evaluation, dated 24 November 2003, states the applicant was evaluated during a period of hospitalization for a major depressive disorder.  He was found medically fit for retention.

6.  Page 1 of a NARSUM for an MEB evaluation provides only the diagnosis of major depression disorder - recurrent and that the applicant had been suffering from suicidal ideation off and on for a number of years.

7.  The DA Form 2173 provided by the applicant, dated 24 February 2005, has a number of questionable entries.  The dated entered at item 5a (Accident Information Date) is 22 February 2005 as is the date of the attending physician's signature.  However, the date at item 8 (Hour and Date Admitted) and item 9 (Hour and Date Examined) is "21 Nov (2 digits scratched out) 03".  Item 30 (Details of Accident) provides information about his 2003 hospitalization.  Item 32 (Injury is Considered to have been Incurred in Line of Duty) has an "X" in the "YES" block.

8.  Page 1 of a VA Rating Decision, dated 26 May 2010, shows the VA granted the applicant service-connection for major depression (70%), muscle contraction headaches (30%), tinnitus (10%), reflux disease (10%), pes planus (0%), and epididymitis (0%t), effective 3 January 2006.

9.  The applicant's last two Noncommissioned Officer Evaluation Reports (NCOER) describe him with terms like:  demonstrates a very high level of component performance, always achieves the best bottom results, responsibilities are discharged superbly without fail, has consistently high production of high quality work, develops a spirit of teamwork, sets and maintains high personal standards, and carries out responsibilities in an outstanding manner.

10.  The applicant, as a sergeant (SGT)/E-5, was honorably discharged from the ARNG and transferred to the Retired Reserve, effective 5 June 2006, under the provisions of National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 8-36r and Army Regulation 135-205 (Enlisted Personnel Management), chapter 4 by reason of for non-selection for retention by a qualitative retention board.  He elected to be reassigned to the USAR Control Group.  He had 25 years, 11 months, and 18 days of total service for retired pay.

11.  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.

12.  Title 38, U.S. , sections 1110 and 1131, 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.

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that when a member is being separated by reason other than physical disability, his/her continued performance of duty creates a 

presumption of fitness which can be overcome only by clear and convincing evidence that he/she was unable to perform his/her duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

14.  Army Regulation 135-205 provides the policy governing the selective retention of Soldiers in ARNG units and U.S. Army Reserve (USAR) Troop Program Units (TPU).  It states:

	a.  the Qualitative Retention Program provides for a review every 2 years of Reserve Component Soldiers serving in ARNG units and USAR TPUs who have 20 or more years of qualifying Service for non-regular retired pay to ensure only the best qualified Soldiers are retained beyond 20 years of qualifying service;

	b  Soldiers who were not selected for retention in ARNG units or USAR TPUs are considered fully qualified for continued participation in the USAR as Individual Ready Reserve (IRR) Soldiers if they have not reached 60 years of age;

	c.  a Soldier who has not been selected for retention by a qualitative retention board will be transferred or reassigned to the Retired Reserve or to the IRR depending on the Soldier's option.

DISCUSSION AND CONCLUSIONS:

1.  While the applicant has shown that he was treated for depression while on active duty, his supporting documents show he was found fit for retention at the time he was released from active duty on 29 April 2004.

2.  The applicant continued in an active status with the ARNG for an additional
2 years, receiving excellent comments on his NCOERs indicating he was fit for duty.

3.  The applicant's continued performance of duty raised a presumption of fitness with no evidence of any unfitting, acute, grave illness or injury concomitant with his separation.

4.  The fact that the VA, in its discretion, has awarded the applicant a disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish physical unfitness for Department of the Army purposes.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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)                                         AR20120003416



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ABCMR Record of Proceedings (cont)                                         AR20120003416



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