Search Decisions

Decision Text

ARMY | BCMR | CY2012 | 20120003717
Original file (20120003717.txt) Auto-classification: Denied

		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 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 the 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 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 applicant‘s 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 applicant’s 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



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120003717


5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

Similar Decisions

  • ARMY | BCMR | CY2013 | 20130001802

    Original file (20130001802.txt) Auto-classification: Denied

    He continued his rehabilitation and/or physical therapy until March 2010 when his leg went numb and he had severe back pain. The applicant contends he should have been diagnosed with the medical conditions of PTSD and TBI at the time of his disability retirement in April 2011 and thus awarded an additional finding of unfitness and compensation. In November 2010, an informal PEB found his back condition was unfitting and rated it as 40-percent disabling.

  • ARMY | BCMR | CY2012 | 20120020668

    Original file (20120020668.txt) Auto-classification: Denied

    Application for correction of military records (with supporting documents provided, if any). The applicant requests, in effect, correction of her records to show she had the condition of major depressive disorder at the time of her discharge in 2003. e. The applicant has provided insufficient evidence that the condition of depressive disorder was unfitting at the time of her separation from the military in 2003.

  • ARMY | BCMR | CY2015 | 20150003539

    Original file (20150003539.txt) Auto-classification: Approved

    On 24 August 2007, she was evaluated by the Mental Health Clinic and received a physical profile rating of 3 in the psychiatric factor for PTSD. Service members who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired, depending on the severity of the disability and length of military service. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a. having the...

  • ARMY | BCMR | CY2013 | 20130001658

    Original file (20130001658.txt) Auto-classification: Denied

    The applicant states, in effect, she wants an MEB and/or PEB to review her medical records and rate her for major depression. d. As a part of her request for correction of her military records the applicant submitted documents from the VA which indicated that in 2009 the VA rated her for depression. She provided a VA rating decision dated 4 January 2012 which shows the VA awarded her a 70% service-connected disability rating for a major depressive disorder.

  • ARMY | BCMR | CY2001 | 2001065973C070421

    Original file (2001065973C070421.rtf) Auto-classification: Denied

    The applicant requests correction of military records as stated in the application to the Board and as restated herein. On 14 October 1988, the applicant’s commander initiated separation action on the applicant under the provisions of Army Regulation 635-200, paragraph 5-13, Personality Disorder. She requested consideration of her case by an administrative separation board, requested personal appearance before such a board, requested representation by counsel, and submitted a statement in...

  • ARMY | BCMR | CY2012 | 20120002654

    Original file (20120002654.txt) Auto-classification: Denied

    The military psychiatric evaluation stated impairment for military duty – moderate. In a letter, dated 10 March 2012, the applicant also states she did not originally appeal the Physical Evaluation Board's (PEB) decision of finding her fit for PTSD for several reasons: a. she was told Soldiers are rarely found unfit for duty due to mental health conditions. _______ _ X _______ ___ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army...

  • ARMY | BCMR | CY2011 | 20110018523

    Original file (20110018523.txt) Auto-classification: Approved

    As a result, his diagnoses met the criteria for an administrative separation under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-17, by reason of other designated physical or mental conditions. On 29 July 2010, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him under the provisions of Army Regulation 635-200, paragraph 5-17, by reason of other physical and/or mental...

  • ARMY | BCMR | CY2012 | 20120017861

    Original file (20120017861.txt) Auto-classification: Approved

    The PEB recommended a 40% combined disability rating and permanent disability retirement. Whatever the mental health diagnosis would be, the 2010 MEB findings would have held that the diagnosis would have met medical retention standards based on the applicant's 2010 complaints and work history. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected: a. amending item 3 of the applicant's DA Form 3947, dated 5 October 2010, to...

  • ARMY | BCMR | CY2012 | 20120019355

    Original file (20120019355.txt) Auto-classification: Denied

    The applicant has not provided and the available records do not contain his medical and physical evaluation board proceedings. While the applicant contends that he should have been medically retired by reason of permanent physical disability due to PTSD, there appears to be no evidence to show this condition was such as to render him unfit for service at the time. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of...

  • ARMY | BCMR | CY2012 | 20120020499

    Original file (20120020499.txt) Auto-classification: Denied

    The applicant states he was diagnosed while in the Army with post-traumatic stress disorder (PTSD) and other medical conditions and he was unable to perform his duties. On 12 May 2006, the applicant’s commander notified him that he was initiating action to separate him from the service under the provisions of Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), paragraph 5-17, due to other designated physical or mental conditions. The applicant...