IN THE CASE OF:	  

		BOARD DATE:	    18 July 2013

		DOCKET NUMBER:  AR20120020058 


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 physical disability retirement.

2.  The applicant states that shortly after she entered active duty she began having multiple physical and mental health problems and did not receive any help from her superiors.  In January 2001, she miscarried, after a complicated pregnancy.  Her life spiraled downward due to physical and mental health problems.  She made every effort to keep her chain of command informed of her change of address and to conform to her military requirements; however, she received no support.  She was placed on several psychotropic drugs and further decomposition led to her discharge rather than medical retirement which she feels would have been the proper avenue.  All diagnoses reflected on her 8 August 2003 DA Form 3349 (Physical Profile) are still evident today.

3.  The applicant provides in support of her application:

* statement from a retired U.S. Army Reserve (USAR) major
* Medical Evaluation Board (MEB) documents
* DA Form 3349, dated 8 August 2003
* Two DD Forms 214 (Certificate of Release or Discharge from Active Duty)
* National Guard Bureau (NGB) 22 (Report of Separation and Record of Service)
* NGB Form 55 (Discharge Certificate)
* Clinical Assessment reporting a 13 October 2012 telephone assessment
* medical records

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 District of Columbia Army National Guard (DCARNG) in February 1986, completed training as a military police officer in August 1986, and progressed normally.  She was mobilized for Operation Desert Shield/Storm from 3 January through 10 July 1991 and for Operation Joint Endeavor (Bosnia) from 2 July 1996 through 14 March 1997.  She was discharged from the DCARNG on 20 May 2001 with a general, under honorable conditions characterization of service for unsatisfactory participation. 

3.  On 17 December 2001, the applicant again enlisted in the DCARNG with a waiver for her previous separation. 

4.  On 25 July 2003:

	a.  an MEB comprised of two physicians diagnosed the applicant with:

* chronic recurrent disabling pain syndrome
* major depression
* post-traumatic stress disorder (PTSD)
* plantar fasciitis
* peripheral neuropathy
* carpal tunnel syndrome
* calcaneal (heel) spurs
* panic disorder

	b.  she was issued a physical profile rating of 3 3 4 1 1 3; and

	c.  the DCARNG State Surgeon:

* determined that she was unfit for retention
* recommended she be separated immediately
* noted that she could appeal the unfit determination to a physical evaluation board (PEB) (if she thought she was fit)

5.  The applicant declined to appeal the unfitness decision and she was honorably discharged from the DC ARNG and as a Reserve of the Army due to medical unfitness for retention.

6.  The documents currently submitted by the applicant include:

	a.  A statement from her DCARNG unit commander during their deployment in support of Operation Desert Shield/Storm.  She describes the numerous threatening incidents and horrendous situations they encountered.  She, herself, has been diagnosed with over 78 illnesses and has a disability rating of over 200 percent.  Her executive officer is also disabled with a 100 percent rating and she knows or knows of other Soldiers from the unit who are disabled.  She considers it is as likely as not that the applicant is disabled due to her service in the first Gulf War.

	b.  Medical records showing:

* the applicant was referred for a 1 June 1991 medical consultation due to exposure to insecticide in Saudi Arabia
* on 18 June 1991, she had a medical consultation for low back pain incurred while training for Desert Shield/Storm
* on 26 November 1997, she sought medical help at Walter Reed Army Medical Center (WRAMC) for multiple complaints including manic-depression and PTSD 
* in June 1997, she sought treatment for "shock like pain" in her right ankle
* in June 1998, she had an orthopedic consultation for bilateral heel pain
* in February 1999, she had a medical evaluation/treatment at Andrews Air Force Base, Maryland for complaints of multiple joint pain
* in February 2001, she had a medical evaluation by the Department of Veterans Affairs (VA) for complaints of multiple joint pain
* July 2000 she sought medical care at WRAMC for plantar fasciitis – she was advised to follow up with the VA

	c.  In October 2012, a licensed clinical social worker interviewed the applicant by telephone and relates her described symptoms of major depressive disorder and PTSD.  The social worker related that the applicant described a severely traumatic childhood.  Her mother abandoned her to her father, and her father was a violent man who abused drugs and physically and sexually abused the applicant.  She became pregnant numerous times, their father making her get abortions.  She stated she had at least 15 abortions, the first one at age 12, and both of her sons are the children of her father.  She stated she was further traumatized while in Iraq during Operation Desert Storm.  Her unit received artillery fire, and during one attack she panicked and ran out of the protective bunker.  She saw the charred bodies of soldiers, being unable to discern if they were Americans or Iraqis.  She also stated that she experienced a date rape by a Soldier she knew.

	d.  DD Forms 214 showing the applicant was mobilized to active duty for about 6 months in support of Operation Desert Shield/Storm and for about 8 1/2 months in 1996-97 in support of Operation Joint Endeavor.  Both times, she was honorably released due to the completion of active duty service and returned to the DCARNG.

7.  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.

8.  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.

9.  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.  Under the laws governing the Army Physical Disability Evaluation system, Soldiers who sustain or aggravate physically unfitting disabilities must meet several line of duty criteria to be eligible to receive retirement and severance pay benefits.  One of the criteria is that the disability must have been incurred or aggravated while the Soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training.

DISCUSSION AND CONCLUSIONS:

1.  The applicant seeks a physical disability retirement.
2.  She reenlisted in the DCARNG as late as December 2001.  She was fully qualified for duty at that time.  Now claims that she was unfit due to incidents as far back as 1991.

3.  Notwithstanding the voluminous "medical evidence" she submits, most of the applicant's complaints occurred years after the fact and there is no evidence that any physical defect or injury occurred while she was serving on active duty that precluded her from being able to perform her duties.  While the October 2012 clinical social worker interview with her related symptoms of major depressive disorder and PTSD and some trauma while in Iraq, it appears that by far the incidents that occurred during her childhood may have been the primary cause of her PTSD.  

4.  The actions by the Army in this case were proper, and there is no doubt to be resolved in favor of the applicant

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)                                         AR20120020058





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ABCMR Record of Proceedings (cont)                                         AR20120020058



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