IN THE CASE OF:
BOARD DATE: 21 August 2012
DOCKET NUMBER: AR20120003717
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 25 (Separation Authority) and Item 28 (Narrative Reason for Separation) on her DD Form 214 (Certificate of Release or Discharge from Active Duty) to show she was medically discharged.
2. The applicant states that the reason for her separation should be a medical reason which was subsequently determined to be service-connected. Correcting the error would allow her to qualify for the State of Wisconsin veterans benefits. Her Department of Veterans Affairs (VA) Rating Decision clearly indicates that a severe stressor occurred that result in a service-connected disability.
3. The applicant provides:
* DD Form 214
* VA Rating Decision
* letter from the VA
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. The provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicants 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 the case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicants military records show she enlisted in the Regular Army, in pay grade E-1, on 31 August 1981, for 4 years. She completed training and was awarded military occupational specialty 76P (Materiel Control and Accounting Specialist). She was advanced to pay grade E-2 on 15 January 1982.
3. She twice accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for failing to go to her appointed place of duty, on 12 March and 1 September 1982.
4. On 1 September 1982, the applicants company commander notified the applicant that he was initiating action to discharge the applicant under the provisions of Army Regulation 635-200, paragraph 5-31, under the Expeditious Discharge Program (EDP), with an honorable discharge. The company commander stated the reasons were the applicants poor attitude, lack of motivation and self-discipline, inability to adapt socially or emotionally, and failure to demonstrate promotion potential. The applicant was advised of her rights.
5. On 8 September 1982, the applicant acknowledged receipt of the proposed separation action. She waived her rights, consented to the proposed discharge action, and elected not to submit a statement in her own behalf.
6. On 1 October 1982, the applicant underwent a mental status evaluation. Her behavior was found to be normal. Her level of alertness was found to be fully alert with a level mood and her thinking process was clear. Her thought content was normal and her memory was good. The examining medical doctor found no significant mental illness and the applicant was mentally responsible, able to distinguish right from wrong, and able to adhere to the right. He determined the applicant had the mental capacity to understand and participate in board proceedings and met the retention standards of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.
7. On 7 October 1982, the applicant's company commander stated that the basis for the discharge was due to the applicant's failure to cooperate with her superiors. In addition, she had received two NJPs under Article 15, UCMJ, for that reason. The applicant had expressed hostility and it reflected on her work. He strongly believed that the applicant would be of no benefit to the service and should be discharged immediately.
8. On 25 October 1982, the appropriate separation authority directed the applicant be discharged under the provisions of Army Regulation 635-200, paragraph 5-31, for failure to meet acceptable standards for continued military service, with an honorable discharge.
9. She was honorably released from active duty, in pay grade E-2, on 28 October 1982, under the provisions of Army Regulation 635-200, paragraph 5-31, and was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement). She was credited with completing 1 year, 1 month, and 28 days of active service and no time lost.
10. There is no evidence she was referred to a medical evaluation board or a physical evaluation board for consideration of any medical condition(s) during her period of active service.
11. She was honorably discharged from the USAR on 30 August 1987.
12. She provides a copy of a VA Rating Decision which shows she was awarded service-connected disability for post-traumatic stress disorder (PTSD) rated at 70 percent effective 4 August 2010. The decision also stated:
a. Service connection for a mental condition to include PTSD and anxiety attacks was previously denied on 7 June 2005 because the evidence of record did not provide credible supporting evidence that the claimed stressor occurred, not did it show a diagnosis of PTSD.
b. On 4 August 2010, her claim was reopened and it was concluded she met the criteria for PTSD at that time.
13. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. Paragraph 5-31 provided for the discharge of enlisted personnel whose performance of duty and potential for continued effective service fell below the standards required in the Army. Individuals discharged under the regulation could be issued a general or honorable discharge.
14. Army Regulation 40-501 governs the medical fitness standards for retention and separation, including retirement. Paragraph 3-33 states that anxiety, somatoform, or dissociative disorders are causes for referral to an medical evaluation board for persistence or recurrence of symptoms sufficient to require extended or recurrent hospitalization; or persistence or recurrence of symptoms necessitating limitations of duty or duty in protected environment; or persistence or recurrence of symptoms resulting in interference with effective military performance.
15. Title 38, U. S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of compensation or a VA service-connected rating does not establish error or injustice in an Army rating. An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service. The VA, which has neither the authority, nor the responsibility for determining physical fitness for the military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability.
16. Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career while the VA may rate any service-connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record shows the applicant was twice punished under Article 15 for misconduct. A mental status evaluation of the applicant found no significant mental illness and that she was mentally responsible, able to distinguish right from wrong, and able to adhere to the right.
2. The applicant's company commander initiated action to separate her because of her poor attitude, lack of motivation and self-discipline, inability to adapt socially or emotionally, and failure to demonstrate promotion potential. The company commander stated that the applicant's discharge was due to her failure to cooperate with superiors and he believed the applicant would be of no benefit for the service.
3. Her contentions have been noted; however, she has provided no evidence or a convincing argument to show her discharge should be changed to a medical discharge. There is an absence of evidence to support her contentions that any medical or personal conditions prevented her satisfactory completion of service. The evidence shows her misconduct and unsatisfactory performance diminished the quality of her service. There is no documented history of chronic PTSD during in her period of service which would have been assessed and disposed of through medical channels nor prevented the completion of her term of enlistment.
4. Her administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors that would tend to jeopardize her rights.
5. There is also no evidence she incurred or suffered from a disabling condition while on active duty that would have supported her processing for separation for a medical condition; therefore, there is an insufficient evidentiary basis to support granting her request. Items 25 and 28 of her DD Form 214 are commensurate with and correspond to the reason for her discharge.
6. The VA documentation she provided with her application was also carefully considered. However, award of a VA rating for any medical condition does not establish entitlement to a medical discharge.
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 ther 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 the case.
ABCMR Record of Proceedings (cont) AR20120003717
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ABCMR Record of Proceedings (cont) AR20120003717
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