BOARD DATE:	  4 June 2013

		DOCKET NUMBER:  AR20120016668 


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 records to show he was medically retired in lieu of discharged by reason of physical condition, not a disability.

2.  The applicant states:

	a.  he was discharged from the Army in August 2007 due to an erroneous diagnosis of adjustment disorder with depressed mood based on his command directed mental health evaluation in connection with his separation.  

   b.  he believes he was mistakenly discharged under chapter 5-17.
   
   c.  he should have been properly diagnosed with Post-Traumatic Stress Disorder (PTSD) stemming from specific traumatic experiences that occurred during his deployment to Iraq in 2005/2006.  
   
   d.  he should have been evaluated under the physical disability system and should have been medically separated/retired.  
   
	e.  after his discharge, he was rated by the Department of Veterans Affairs (DVA) as 70% disabled for service connected PTSD and has maintained this rating to the present.  He was briefly rated at 100% disabled.  His VA appointed mental health evaluator stated "your service records mentioned hints of post-traumatic stress disorder."  

   f.  his military medical records show he was hospitalized overnight on 18 June 2007 for severe feelings of panic and helplessness.  This stemmed from PTSD.  He was counseled for symptoms of and untreated warning signs of PTSD.

3.  The applicant provides:

* Discharge proceedings
* Counseling forms
* Service medical records 
* DVA documentation
* Civilian medical records
* Army Commendation Medal citation
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Discharge orders
* Enlistment contract 

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 26 February 2004 for a period of 4 years.  He completed his training and was awarded military occupational specialty 96B (intelligence analyst).  He served in Iraq from 14 August 2005 to 
1 September 2006.

3.  On 14 April 2007, the applicant was seen by Behavioral Health and diagnosed as having Adjustment Disorder with Depressed Mood.  On 15 April 2007, he was counseled that separation action could be initiated under the provisions of Army Regulation 635-200, paragraph 5-17 (among other possible provisions of the regulation).  The DA Form 4856 (Developmental Counseling Form), Plan of Action section, noted that the applicant gave the following as reasons for his behavior:  personal/relationship and unknown reasons.

4.  A DA Form 4856 dated 23 May 2007, Plan of Action section, noted he should continue to make progress in treating/combating the personal issues.

5.  A DA Form 4856 dated 15 June 2007, Plan of Action section, noted the applicant gave the following reasons for his behavior:  personal/relationship and unknown reasons. 

6.  A Standard Form 600 (Chronological Record of Medical Care) contains an   18 June 2007 entry that the applicant apparently experienced panic and helplessness and went to Samaritan Hospital and spoke to behavioral health personnel for depression as it was felt to be an emergency.  Records from his visit to Samaritan Hospital are not available.

7.  On 26 June 2007, he underwent a mental health evaluation and the psychologist diagnosed him as having an adjustment disorder with depressed mood.  The psychologist noted:

   a.  the applicant reportedly has experienced worsening depressive symptoms in response to multiple stressors for the past two years.  These depressive symptoms have had a profound negative impact on his occupational functioning.  He had an incident of passive suicidal ideations resulting in him being admitted to the medical center on 18 June 2007.  Nevertheless, he credibly and emphatically denies current suicidal ideations to include plan or intent.
   
   b.  he has demonstrated a pattern of depressive symptoms in response to external stressors.  He displays maladaptive coping mechanisms to deal with negative situations and will likely exhibit further difficulties under greater stress.  He made contact with the Behavioral Health department at Fort Drum in April 2007 and despite continued treatment and support from his command, he is not expected to be able to adapt to the continued strains of the Army.  
   
   c.  he recommended an expeditious discharge from the Army in accordance with Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-17.

8.  On 23 July 2007, the applicant's unit commander initiated action to separate him under the provisions of Army Regulation 635-200, chapter 5, paragraph 
5-17.  The commander stated the reason for the proposed action was the applicant was diagnosed as having an adjustment disorder with depressed mood.  The disorder was enduring patterns of behavior that led to impairment in social and occupational functioning.  His ability to function in a military environment was significantly impaired; the problem is longstanding and not treatable in the context of military service.
9.  On 23 July 2007, having been afforded the opportunity to consult with counsel, he voluntarily waived his opportunity to consult with counsel and he elected not to provide a statement in his own behalf.

10.  On 26 July 2007, the separation authority approved the applicant's separation under the provisions of Army Regulation 635-200, paragraph 5-17 with issuance of an honorable discharge.

11.  On 10 August 2007, the applicant was discharged accordingly under the provisions of Army Regulation 635-200, paragraph 5-17, for a condition, not a disability.  He completed 3 years, 5 months, and 15 days of creditable active service.

12.  There is no evidence of record which shows he was diagnosed with PTSD prior to his discharge.

13.  He provides VA documentation which shows he was granted service-connected disability for PTSD (70%), right knee patellofemoral pain syndrome (10%), and decreased sensation of the bilateral great toes (0%).  His VA Rating Decision also noted that he obtained his Bachelor of Science degree in 2000.  He stated he had been employed as an intelligence analyst at an air force base on a fulltime basis.  He stated he recently married, in July 2011.

14.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 5 provides for separation for the convenience of the government.  Paragraph 5-17 provides for discharge for other designated physical or mental conditions.  Commanders may approve separation under this paragraph on the basis of other physical or mental conditions not amounting to disability under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) and excluding conditions appropriate for separation processing under paragraph 5-11 (Separation of Personnel Who Did Not Meet Procurement Medical Fitness Standards) or 5-13 (Separation Because of Personality Disorder) that potentially interfere with assignment to or performance of duty.

15.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness must be of such a degree that a Soldier is unable to perform the duties of his office, grade, rank, or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.

16.  Paragraph 3-36 (Adjustment Disorders) of Army Regulation 40-501 (Standards of Medical Fitness) states situational maladjustments due to acute or chronic situational stress do not render an individual unfit because of physical disability but may be the basis for administrative separation if recurrent and causing interference with military duty.

17.  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.

18.  Title 38, U.S. Code, sections 310 and 331, permit 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.

19.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should have been diagnosed with PTSD and medically retired.  

2.  The available medical evidence is void of any suggestion of PTSD during the applicant’s active duty.  Multiple unit counseling statements refer to his “personal” and “relationship” issues.  The applicant did not provide the record of his stay at Samaritan Hospital for depression.  The available evidence indicates his treatment for depression had nothing to do with what may have happened in Iraq.
The 26 June 2007 mental status evaluation does to refer to alcohol abuse, PTSD, or any other malady except adjustment disorder.  Without divulging the nature of his stressors, the mental status evaluation notes that he demonstrated depressive symptoms in response to “external stressors.”  He states he was misdiagnosed while in the service, but he provided the Board not a single document that shows he reported symptoms of PTSD.

3.  The available medical evidence shows he was diagnosed as having an adjustment disorder with depressed mood on 26 June 2007 and he was discharged under the provisions of Army Regulation 635-200, paragraph 5-17, for a condition, not a disability.  This diagnosis was presumably made by competent military medical authorities.  

4.  The governing regulation states adjustment disorders do not render an individual unfit because of physical disability, and there is insufficient evidence to show he was unfit due to PTSD or any other compensable disorder at the time of his separation.

5.  The medical documentation provided by the applicant was carefully considered.  Although the VA granted him a 70% disability rating for PTSD, this rating action does not necessarily demonstrate an error or injustice on the part of the Army.  The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit.

6.  Therefore, there is no basis for a medical retirement.

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)                                         AR20120016668





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ABCMR Record of Proceedings (cont)                                         AR20120016668



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