BOARD DATE:	  17 September 2013

		DOCKET NUMBER:  AR20130002124 


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 evaluation by the U.S. Army Physical Disability Evaluation System (PDES) for physical disability processing.  

2.  He states, in effect, he should be evaluated by a Medical Evaluation Board (MEB) in accordance with paragraph 5-17 of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). 

3.  He provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Army Regulation 635-200, chapter 5, paragraph 5-17 discharge proceedings
* Memorandum for Record
* DA Form 4856 (Developmental Counseling Form)
* Memorandum, subject:  Specialist (SPC) [applicant's name], xxx-xx-xxxx
* MEDCOM [Medical Command] Form 699-R (Report of Mental Status Evaluation)
* Compensation and Pension Claim Details
* Listing of events in Iraq and Post-Iraq

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 20 April 2004.  He served in Iraq from 12 October 2006 to 2 January 2008.  

3.  On 8 October 2009, he underwent a mental status evaluation and was diagnosed with an adjustment disorder with disturbance of emotions.  His MEDCOM Form 699-R indicates he had been screened for traumatic brain injury (TBI).  The psychiatrist stated:

   a.  the applicant met the retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3 and had a condition which did not warrant disposition through medical channels.  
   
   b.  the applicant's diagnosis represented the development of emotional and behavioral symptoms in response to military stressors and his ability to adapt to military life was unlikely.
   
	c.  the applicant's continued service in the military was expected to result in increased risk of harm to self or other and limit his ability to satisfy duties as required in his military occupational specialty (MOS).  

	d.  the applicant was and is mentally responsible, able to distinguish right from wrong and to adhere to the right, and has the mental capacity to understand and participate in administrative proceedings.
   
   e.  the applicant should not be allowed access to firearms or weapons unless cleared by a credentialed mental health provider and not be allowed to deploy unless cleared by a credentialed mental health provider.  
   
   f.  the applicant should be administratively separated in accordance with Army Regulation 635-200, paragraph 5-17.

4.  In an 8 October 2009 memorandum, the psychiatrist at the Restoration and Resilience Center, Carl R. Darnall Army Medical Center stated the applicant had been diagnosed with an adjustment disorder with disturbance of emotions and that these diagnoses had the potential to develop into more severe conditions requiring an MEB.  The psychiatrist also stated the applicant's symptomatology was severe, chronic, and was presently impairing his functioning in garrison.  In addition, the psychiatrist stated the applicant's anxiety, depression, lack of affective regulation skills would put him at risk, as well as other Soldiers in his unit; his stress and sleep deprivation in a downrange environment would put him at risk for decompensation, requiring more medical intervention and possible medical evacuation; and his presence in theater would become a command liability.  

5.  On 30 October 2009, he underwent a second mental status evaluation.  His MEDCOM Form 699-R indicated he had been screened for TBI and Post-Traumatic Stress Disorder (PTSD).  

6.  On 4 November 2009, the company commander notified the applicant of initiation of separation action under the provisions of Army Regulation 635-200, chapter 5, paragraph 5-17 for other designated physical or mental condition.  The company commander indicated the reason for this recommendation was the applicant was evaluated by a psychiatrist at the Restoration and Resilience Center and was diagnosed with Axis I, Adjustment Disorder with Disturbance of Emotions.  

7.  The applicant was advised of his rights.  He acknowledged receipt of notification of separation action, consulted with legal counsel, waived consideration of his case by an administrative separation board, waived a personal appearance before an administrative separation board, and elected not to submit statements in his own behalf.  

8.  On 16 November 2009, the separation authority approved separation action under the provisions of Army Regulation 635-200, paragraph 5-17 for other designated physical or mental conditions and directed issuance of an honorable discharge.  The separation authority stated the applicant was not diagnosed with a personality disorder and was screened for TBI and PTSD and no evidence was found.  

9.  On 9 December 2009, the applicant was discharged accordingly by reason of a condition, not a disability.  At the time of his discharge, he had completed 5 years, 7 months, and 20 days of active military service.

10.  He provided a listing describing the incidents that occurred during a mortar attack, mental evaluation after returning from Iraq, and his post-service conduct.
11.  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 or her office, grade, rank, or rating in such a way as to reasonably fulfill the purposes of his or her employment on active duty.

12.  Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel.  Paragraph 5-17 provides that a Soldier may be separated for other designated physical or mental conditions not amounting to disability and excluding conditions appropriate for separation processing under paragraph 5-11 or 5-13 that potentially interfere with assignment to or performance of duty.  Such conditions may include, but are not limited to chronic airsickness, chronic seasickness, enuresis, sleepwalking, dyslexia, severe nightmares, claustrophobia, or other 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.

13.  Army Regulation 40-501 (Standards of Medical Fitness) states that adjustment disorders render an individual administratively unfit rather than unfit because of physical illness or medical disability.  These conditions will be dealt with through administrative channels.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant's administrative separation under the provisions of Army Regulation 635-200, paragraph 5-17 was accomplished in 
compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  

2.  He was diagnosed with an adjustment disorder with disturbance of emotions and he was psychiatrically cleared for any administrative action deemed appropriate by his command.  In addition, the psychiatrist stated the applicant met the retention standards prescribed in Army Regulation 40-501, chapter 3 and had a condition which did not warrant disposition through medical channels.  

3.  His service record is void of evidence that indicates he had any medically unfitting disability at the time he was separated which required physical disability processing.  His medical screenings indicated only that his diagnoses had the potential to develop into more serious conditions requiring an MEB.

4.  The applicant has failed to show through the evidence submitted or the evidence of record that an error or injustice exists in this case.  Therefore, there is no basis for granting his requested relief.  
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)                                         AR20130002124





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ABCMR Record of Proceedings (cont)                                         AR20130002124



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