IN THE CASE OF:	  

		BOARD DATE:	  17 October 2013

		DOCKET NUMBER:  AR20120019988 


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 a medical retirement.

2.  The applicant states she was raped by another Soldier on several occasions and conceived and bore a child.  Based on this trauma she developed a mental condition so severe as to interfere with her daily living.  The other Soldier was never punished and her child is a reminder of her ordeal.  She was discharged for post-traumatic stress disorder (PTSD) and believes her discharge is unfair and unjust.  As her condition had its onset while on active duty she should have been medically retired.

3.  The applicant provides:

* DD Form 214 Worksheet (Certificate of Release or Discharge from Active Duty)
* 36 pages of service medical records
* Department of Veterans Affairs (VA) medical records and rating decisions
 
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's full service medical records are on permanent loan to the VA, except for a limited number of documents included in her application for VA benefits, and are not available for review.

3.  The applicant enlisted in the Regular Army on 25 May 1999.  She served on active duty until 5 January 2004.

4.  The available records do not include any specific information regarding the applicant's reported sexual assault.  There are references in the VA rating decisions to an assault occurring in mid-2001 and the birth of a child in April 2002.

5.  Records contain a memorandum issued by the Womack Army Medical Center, Fort Bragg, NC, subject:  Mental Health Evaluation of (Applicant's name and Social Security Number), dated 26 November 2003.  The physician rendered the diagnoses of a depressive disorder and a personality disorder (not otherwise specified) with antisocial traits.  He determined the applicant met retention requirements.  He stated "This Soldier does not have a mental disorder; however, the Soldier’s present state of emotional and/or behavioral dysfunction is of such severity that the Soldier’s ability to perform military duties is significantly impaired.  This condition meets the criteria set forth in Army Regulation 635-200, chapter 5-17 for administrative separation.  Command is advised to consider this action to be in the best interest of the Soldier, as well as the unit."

6.  Based on the above assessment, her command initiated separation under Army Regulation 635-200, paragraph 5-17 for a physical condition, not a disability.

7.  On 4 December 2003, the applicant was counseled in relationship to her proposed separation.  In the counseling statement her unit commander stated "Over the past 2 years you have been both self-referred and command-referred to see Division Mental Health (DMH) for various reasons.  Many times you visited DMH two or three times a week.  Over the past 2 years you have not made 

significant progress.  DMH referred you to Womack Army Medical Center to receive a mental evaluation on 26 November 2003." 

8.  A DD Form 2807 (Report of Medical Examination), dated 10 December 2003, shows a reported history of sexual assault with head trauma, a fractured foot, and sinus surgery.  The examining physician rendered the diagnoses of a sleep disorder, depression, and PTSD.  The physician recommended the applicant be referred to mental health for evaluation and treatment.

9.  A DD Form 2697 (Report of Medical Assessment), dated 10 December 2003, shows 2 years of treatment for mental health problems.  The applicant indicated she would be seeking VA disability for PTSD, depression, obsessive compulsive disorder, and a sleep disorder.

10.  The applicant was honorably discharged on 5 January 2004 with 4 years, 7 months, and 11 days of creditable active service.  The DD Form 214 she was issued at the time shows she was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), paragraph 5-17, by reason of a physical condition, not a disability.

11.  The applicant was granted VA benefits effective the day after her separation. She received a 70 percent evaluation for PTSD with depression and obsessive-compulsive disorder and a 10 percent evaluation for bilateral knee strain.  She also had non-compensable evaluations for residuals of a left bicep tear, sinusitis, tension headaches, and hemorrhoids.

12.  The first VA decision document states her service medical records show a diagnosis of and treatment for PTSD as a result of a sexual assault.

13.  In March 2005, her PTSD evaluation was raised to 100 percent and this evaluation was continued by VA determinations on 9 September 2008 and 2 March 2012.

14.  Army Regulation 635-200 sets for the basic authority for the separation of enlisted personnel:

	a.  Paragraph 5-13 a medical review of the personality disorder diagnosis will consider whether PTSD, traumatic brain injury (TBI), and/or other comorbid mental illness may be significant contributing factors to the diagnosis.  A Soldier will not be processed for administrative separation under this paragraph if PTSD, 

TBI, and/or other comorbid mental illness are significant factors to a diagnosis of personality disorder,

	b.  paragraph 5-17 states a service member may be separated under this paragraph for a physical or mental condition not amounting to disability 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.  

15.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  Paragraph 2-9 states that 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.

16.  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/her office, rank, grade or rating because of physical disability incurred while entitled to basic pay.

17.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states 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 member reasonably may be expected to perform because of his office, rank, grade or rating.  The Army must find that a service member is physically unfit to reasonably perform his duties and assign an appropriate disability rating before that service member can be medically separated or retired.  Chapter 3 states 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 they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.

18.  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 higher VA rating does not establish an error or injustice on the part of the Army.  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 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 entitlement to medical retirement for Department of the Army purposes.

2.  The applicant’s service medical treatment records are available.  However, the available records indicate that at the time of the applicant's separation physical examination the applicant had a military diagnosis of PTSD.  However, the physician preparing her mental health evaluation stated she did not have a mental disorder.  

3.  The lack of service medical records combined with the VA records and disability evaluations raise a question as to the applicant's proper diagnosis. However, without access to the applicant's full service medical records it is impossible to determine if the applicant was properly evaluated at the time of her separation.

4.  Although the examining physician for her separation physical appears to have summed up the applicant’s conditions on the DD Form 2808 and DD Form 2697, as Sleep Disorder, Depression/PTSD, PTSD is not mentioned elsewhere by the applicant or the physician on either form.  The physician appears to be introducing something in the summary that is not in the body of the document.  

5.  Absent evidence that the applicant was suffering from PTSD or some other medical condition showing she was physically unfit to perform her duty she was not eligible for physical disability processing.

6.  Therefore, in the absence of medical evidence to the contrary, it is must be presumed that the available service records are correct as presently constituted.


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)                                         AR20120019988



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ABCMR Record of Proceedings (cont)                                         AR20120019988



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