IN THE CASE OF:	  

		BOARD DATE:  15 January 2013

		DOCKET NUMBER:  AR20120016958 


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, that his discharge be voided and that he be discharged or retired by reason of permanent disability or that he be afforded a medical evaluation under the Physical Disability Evaluation System (PDES). 

2.  The applicant defers his comments to counsel. 

3.  The applicant allows counsel to submit additional documents.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the applicant be evaluated under the PDES for post-traumatic stress disorder (PTSD) and that he be discharged or retired as appropriately determined after a proper evaluation under the PDES. 

2.  Counsel states, in effect, that the applicant was discharged in 2006 at a time when the Army treated PTSD and mental disorders differently than it does today.  He goes on to state the diagnosis by the major who ruled out PTSD is incorrect because the Department of Veterans Affairs (VA) disagrees and awarded him service connection (50%) for PTSD.  Accordingly, the Board should afford the applicant the opportunity to be evaluated under the PDES through invitational travel orders to the nearest medical facility.

3.  Counsel provides a bound brief containing a seven-page brief explaining the application and a table of contents with seven exhibits.

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 6 January 2004, the applicant enlisted in the Regular Army and he completed training as a multi-channel transmission operator/maintainer and airborne training.  He deployed to Iraq during the period of 20041101 - 20051115. 

3.  It appears the applicant was initially seen at the Psychology Clinic at Womack Army Medical Center, Fort Bragg on 22 February 2006 and he was diagnosed with Adjustment Disorder with Depressed Mood by at least five different mental health professionals up until 29 September 2006.  Two of the examining officials ruled out PTSD and one official ruled out a depressive disorder. 

4.  On 12 June 2006, the applicant was mentally evaluated and diagnosed as having:

* Axis I:  Anxiety NOS (not otherwise specified), adjustment disorder with mixed emotional features, rule-out PTSD
* Axis II: Dysfunctional personality traits
* Axis III: None 

5.  On 10 August 2006, the applicant’s commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200, paragraph 5-17, because of a designated physical or mental disorder.  After consulting with defense counsel he elected not to submit a statement in his own behalf.

6.  The appropriate authority approved the recommendation for discharge on
31 August 2006 and directed that he be furnished an Honorable Discharge Certificate.

7.  On 1 November 2006, he was honorably discharged under the provisions of Army Regulation 635-200, paragraph 5-17, due to a condition not a disability.  He had served 2 years, 9 months, and 26 days of active service.

8.  On 11 April 2008, the applicant was granted a 50% service connection for PTSD claimed as insomnia effective 2 November 2006.  

9.  Army Regulation 635-200 provides the basic guidance for the separation of enlisted personnel.  Paragraph 5-17 provides for the separation of Soldiers who have a physical or mental condition that potentially interferes with assignment to or performance of duty; however, the physical or mental condition does not amount to a disability or qualify for disability processing under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).

10.  Army Regulation 635-40, paragraph 3-2b, provides that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.

11.  Title 38, U.S. Code, sections 310 and 331, permits 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.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

12.  There is a difference between the VA and the Army disability systems.  The Army’s determination of a Soldier’s physical fitness or unfitness is a factual finding based upon the individual’s ability to perform the duties of his or her grade, rank or rating.  If the Soldier is found to be physically unfit, a disability rating is awarded by the Army and is permanent in nature.  The Army system requires that the Soldier only be rated as the condition(s) exist(s) at the time of the Physical Evaluation Board (PEB) hearing.  The VA may find a Soldier unfit by reason of service-connected disability and may even initially assign a higher rating.  The VA’s ratings are based upon an individual’s ability to gain employment as a civilian and may fluctuate within a period of time depending on the changes in the disability.

13.  Army Regulation 40-400 (Medical Services – Patient Administration), paragraph 7-1, provides, in pertinent part, that physicians who identify Soldiers with medical conditions not meeting fitness standards for retention will initiate a DA Form 3349 referring them to the Physical Disability Evaluation System (PDES).  Soldiers issued a permanent profile with a numerical designator of 3 or 4 in one of the physical profile factors who meet retention standards are referred to the military occupational specialty medical retention board.  If the Soldier does not meet retention standards a medical evaluation board (MEB) is mandatory and will be initiated by the PEB liaison officer.  MEBs are convened to document a Soldier’s medical status and duty limitations insofar as duty is affected by the member’s medical status.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's discharge was administratively correct and in conformance with applicable regulations with no indication of any violations of the applicant's rights.  Accordingly, the type of discharge directed and the reason for his discharge were appropriate under the circumstances.

2.  The applicant failed to show through the evidence submitted and the evidence of record that he was improperly diagnosed, by competent military medical personnel, as having a condition that was not a disability.  The mere presence of impairment does not, of itself, justify a finding of physical unfitness and/or medical retirement from the Army.  He was not separated because he had a medically unfitting condition; he was separated because his condition impaired his ability to perform his military duties. 

3.  The fact that the VA, in its discretion, has awarded the applicant a disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish any entitlement to additional disability compensation or medical retirement from the Army.

4.  Accordingly, he was properly discharged in accordance with the applicable laws and regulations with no indication of any violations of his rights.

5.  Therefore, in the absence of sufficient evidence to show the applicant was not properly diagnosed when he was evaluated and discharged in 2006, there appears to be no basis to grant his requests.


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.




      _______ _   _______   ___
               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)                                         AR20120016958



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ABCMR Record of Proceedings (cont)                                         AR20120016958



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