BOARD DATE:	  20 November 2012

		DOCKET NUMBER:  AR20120007972 


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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) in item 28 (Narrative Reason for Separation) from "physical condition, not a disability" to a service-connected physical condition.  

2.  The applicant states he was told at the time of his discharge his disability was not determined to be service-connected; however, the Department of Veterans Affairs (VA) awarded him a service-connected disability rating of 60 percent (%).

3.  The applicant provides a copy of his DD Form 214 and a VA letter, dated 
14 July 2011.

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 enlisted in the Regular Army on 28 October 2003 and held military occupational specialty 11B (Infantryman).  

3.  On 21 June 2004, he received a mental status evaluation.  The medical officer/psychiatrist who performed the evaluation noted he had normal behavior, his level of orientation wavered between fully oriented and partially oriented, his mood and effect was depressed, his thinking was clear, his content normal, his memory was good, he had the mental capacity to understand and participate in proceedings, and was mentally responsible.  The medical official diagnosed him with alcohol dependency, a depressive disorder (by history), and attention deficit and hyperactivity disorder (ADHD) (by history) and made the following recommendations:

	a.  These disorders are so severe that the Soldier's ability to function effectively in the military environment is significantly impaired.  This/these problem(s) are longstanding and not treatable within the context of military service.

	b.  It was the opinion of the examiner that the applicant had no potential to meet mobilization requirements, clearly had no potential for useful service under the conditions of full mobilization, and that a discharge from the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 5-17 (Other Designated Physical or Mental Conditions), would be in the best interest of the applicant and the Army.

	c.  Although the applicant was not actively suicidal or homicidal, the potential existed that the applicant could deteriorate to suicidal or homicidal state.  Delays in the chapter process would increase the risk and bring serious problems to the command.  It was recommended that any means to expedite the chapter be used.

	d.  The medical official stated that no weapons should be issued to the applicant during the remainder of his military service, the applicant's retention in 
the service would create additional management problems for the command, and the command could expect the applicant's performance to resemble his past performance.  


	e.  The medical official further recommended the applicant be referred to the Army Substance Abuse Program (ASAP) for the remainder of his service, a health and welfare inspection of his living quarters be conducted to uncover any dangerous items or toxins, and he be placed on a continual unit watch for the remainder of his service.

4.  His record contains a developmental counseling form, dated 25 June 2004, wherein his company commander counseled him on:

* His pending separation under Army Regulation 635-200, chapter 5-17
* Having no weapon issued to him during the chapter process
* Not being authorized to consume alcohol during the separation process
* Still falling under the authority of the Uniform Code of Military Justice (UCMJ) 
* That violations of the UCMJ could result in UCMJ punishment or a more severe chapter

5.  On 4 July 2004, his company commander notified him of his intent to initiate separation action against him for other designated physical or mental conditions. The specific reason was the applicant was diagnosed as having a designated physical or mental condition not amounting to a disability with a potential to interfere with future assignments and duty performance.  His commander further noted he intended to recommend the applicant receive an honorable discharge.

6.  The applicant acknowledged receipt of the separation notification memorandum and subsequently, on 6 July 2004, consulted with legal counsel.  He was advised of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of his rights.  He acknowledged he understood that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.

7.  His record contains a DD Form 2807-1 (Report of Medical History), a DD Form 2697 (Report of Medical Assessment), and a DD Form 2808 (Report of 
Medical Examination), dated 12 July 2004.  These forms confirm he received a medical examination and was found to me medically (physically) qualified for military service.

8.  The separation authority waived all further rehabilitative requirements and approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 5-17, by reason of other designated physical or mental condition with an honorable discharge.

9.  He was accordingly discharged on 28 July 2004 under the provisions of Army Regulation 635-200, chapter 5-17, based on a physical condition, not a disability, with an honorable discharge.  He was assigned a separation code of "JFV."  This form also shows he completed 9 months and 1 day of creditable active service.

10.  There are no accompanying service medical/treatment records or other documentation that show he was diagnosed with or suffered from an injury, illness, or any medical condition that would have warranted his entry into the Army's physical disability evaluation system (PDES).

11.  He submitted a copy of his VA rating decision, dated 14 July 2011, that shows he was awarded a service-connected disability rating of 60%.

12.  Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel.  Paragraph 5-17 provided that commanders may approve separation on the basis of other physical or mental conditions not amounting to disability (Army Regulation 635–40) and excluding conditions appropriate for separation processing under paragraph 5–11 or 5–13 that potentially interfere with assignment to or performance of duty. Such conditions may include, but are not limited to disorders manifesting disturbances of perception, thinking, emotional control or behavior sufficiently severe that the Soldier’s ability to effectively perform military duties is significantly impaired.  When a commander determines that a Soldier has a physical or mental condition that potentially interferes with assignment to or performance of duty, the commander will refer the Soldier for a medical examination and/or mental status evaluation in accordance with Army Regulation 40–501 (Standards of Medical Fitness).  A recommendation for separation must be supported by documentation confirming the existence of the physical or mental condition.  

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army PDES and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  It provides for medical evaluation boards (MEBs) 
which 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 qualifications for retention based on the criteria in Army Regulation 40-501.

14.  Paragraph 3-1 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 Soldier reasonably may be expected to perform because of their office, grade, rank, or rating.  To ensure all Soldiers are physically qualified to perform their duties in a reasonable manner, medical retention qualification standards have been established in Army Regulation
40-501, chapter 3.  These standards include guidelines for applying them to fitness decisions in individual cases.  

15.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the physical evaluation board (PEB) rates all disabilities using the Veteran's Affairs Schedule for Rating Disabilities (VASRD).  

	a.  Chapter 3 of this regulation lists the various medical conditions and physical defects which may render a Soldier unfit for further military service. These medical conditions and physical defects, individually or in combination, are those that significantly limit or interfere with the Soldier’s performance of their duties or may compromise or aggravate the Soldier’s health or well-being if they were to remain in the military Service.  Alcohol dependence and ADHD are not listed in chapter 3 as unfitting conditions.  However, a major depressive disorder is classified as a mood disorder which is covered under chapter 3 of this regulation.

	b.  Paragraph 3–32 states Soldiers will be referred to an MEB for mood disorders when the symptoms are persistent or recurrent sufficient to require extended or recurrent hospitalization, 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.

16.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or at least a 30  % disability rating percentage.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than
20 years of service and a disability rating at less than 30%.

17.  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 a VA rating or a higher VA rating does not establish an error or injustice in the Army rating or lack thereof.  The Army rates only conditions determined to be physically unfitting at the time of discharge 
which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The VA 
does not have authority or responsibility for determining physical fitness for military service.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant underwent a mental status evaluation that diagnosed him as having a longstanding history of symptoms of alcohol dependence, depressive disorder, and ADHD so severe that his ability to function effectively in the military environment was significantly impaired.

2.  Medical separation is based on existence of a condition that did not meet retention standards.  However, alcohol dependence and ADHD are not considered medically unfitting conditions and; therefore, did not warrant his entry into the PDES system.  In addition, medical authorities did not enter him into the PDES system for his major depressive disorder because it appears his symptoms were not severe enough to merit entry.  Further, there is no evidence in the available records and he did not provide sufficient evidence that shows at the time of his separation from active duty he was diagnosed with any other conditions that would have warranted his entry into the PDES.  

3.  Subsequent to his discharge, the VA evaluated him and awarded him service-connected disability compensation.  However, an award of a rating by another agency does not establish error by the Army.  Operating under different laws and their own policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and can only be accomplished through the PDES.  

4.  His narrative reason for separation was assigned based on the fact that he was discharged under the provisions of Army Regulation 635-200, chapter 5-17, due to a medical condition - not a disability.  Absent this condition, there was no fundamental reason to process him for discharge.  Therefore, the only valid narrative reason for separation permitted under this paragraph is "Condition - Not a Disability." 

5.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  His narrative reason for separation is correctly shown on his DD Form 214 and he has provided insufficient evidence to warrant changing these entries.
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)                                         AR20120007972





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ABCMR Record of Proceedings (cont)                                         AR20120007972



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