BOARD DATE:	  11 December 2012

		DOCKET NUMBER:  AR20120009874 


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 her record to show she was retired for physical disability.

2.  The applicant states she was discharged because she was unable to physically perform her military duties.  She believes she "should have been medically retired instead of given [Department of Veterans Affairs (VA)] disability at discharge."

3.  She provides:

* a page from her enlistment contract
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* orders 
* DD Form 2648 (Preseparation Counseling Checklist)
* DA Form 2-1 (Personnel Qualification Record)
* Enlisted Record Brief
* medical records
* Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB) Proceedings with associated documents

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.  On 31 July 2001, the applicant enlisted in the Regular Army.  After completing initial entry training, she was awarded military occupational specialty 92A (Automated Logistical Specialist).  

3.  On 10 December 2004, she was honorably discharged.  Her DD Form 214 shows in:

* item 26 (Separation Authority) – "AR 635-40, PARA 4-24B(4)"
* item 28 (Narrative Reason for Separation) – "DISABILITY, EXISTED PRIOR TO SERVICE, PEB"

4.  The applicant's service medical records and PEB Proceedings are not included in her Army Military Human Resource Record.  However, she provides medical records showing she sought treatment for migraine headaches on several occasions. 

	a.  On 13 November 2002, she was examined at the Tripler Army Medical Center (TAMC) Neurology Clinic.  The record of the examination shows she had a "left-sided migraine with aura headaches since age 16."  

	b.  On 30 May 2003, she was examined again at the TAMC Neurology Clinic.  The record of the examination shows she has a "long history of right sided migraine [headaches] with aura," and she "continue[d] with headaches despite trials of different abortive medications, prophylactic meds, behavioral and work modifications."

	c.  On 17 and 31 July 2003, she was evaluated by the TAMC Psychology Clinic after referral from the Neurology Clinic.  The examining medical officer concluded it was "likely that [the applicant's] headaches are exacerbated by her ineffectiveness at managing stressors and a lack of positive coping skills."

	d.  On 15 April 2004, she was referred to the TAMC Neurology Clinic by Soldier Readiness Processing for evaluation of recurring cephalalgia (headaches).  The record of the examination shows she had been recommended for an MEB.  The examining physician noted her condition had been resistant to treatment and was unlikely to improve in the near future.

5.  The applicant provides:

	a.  An MEB Narrative Summary showing she was examined on 28 June 2004.  The examining physician concluded she failed to meet retention criteria in accordance with Army Regulation 40-501, paragraph 3-30j, due to complaints of chronic cephalalgia precipitated by her stresses.  He recommended she go before an MEB and PEB.  

	b.  A DA Form 3947 (MEB Proceedings) showing an MEB recommended she be referred to a PEB based on her diagnosis of chronic recurrent headaches.  The MEB found the applicant's condition was not incurred while she was entitled to basic pay and that her condition existed prior to service.  On 27 September 2004, she indicated she agreed with the MEB's findings and recommendation.

	c.  A DA Form 199 (PEB Proceedings) showing a PEB convened on 4 October 2004 to consider her case.  The PEB found the applicant medically unfit based on a diagnosis of recurrent tension/psychogenic headaches.  The PEB found the condition was neither service-incurred nor permanently aggravated by military service.  The PEB determined she was ineligible for disability compensation, recommended separation without disability benefits, and recommended she contact the VA to determine her eligibility for benefits through that agency.  On 4 October 2004, she concurred with the PEB findings and recommendations and waived a formal hearing of her case.

6.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (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.  

	a.  The regulation provides that Soldiers will be discharged without severance pay if they are found unfit due to a condition that existed prior to service and was not aggravated by military service.  

	b.  The regulation further provides that to be permanently retired for physical disability, a Soldier's disabling condition must have been incurred or aggravated while entitled to basic pay and the condition must be rated as 30 percent disabling or more.  


DISCUSSION AND CONCLUSIONS:

1.  The available evidence does not support the applicant's request for correction of her record to show she was retired due to physical disability.

2.  The available evidence clearly shows the condition that resulted in the applicant's discharge existed prior to service and was not permanently aggravated by military service.  As such, the PEB properly determined she was ineligible for disability compensation from the Army and properly recommended discharge without disability benefits.  She concurred with the PEB findings and recommendations.

3.  In the absence of evidence showing an error in her discharge action, there is no basis for granting the relief she has requested.  

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)                                         AR20120009874



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ABCMR Record of Proceedings (cont)                                         AR20120009874



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