IN THE CASE OF:	

		BOARD DATE:	  7 November 2013

		DOCKET NUMBER:  AR20130003284 


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.

2.  The applicant states he was never offered consideration by a medical evaluation board (MEB).  He was discharged and denied promotion to pay grade E-5 because of his medical issues.  He was also discharged with no severance pay.  He was rated 50-percent service-connected disabled by the Department of Veterans Affairs (VA) for post-traumatic stress disorder (PSTD) after his discharge.  He was not aware that he should have entitlement to benefits until told so by the VA.

3.  The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and VA Rating Decision with allied 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 Regular Army on 2 January 2002.  He completed training and was awarded military occupational specialty 42A (human resources specialist).  He served in Iraq from 23 March 2003 to 27 March 2004 and he was advanced to pay grade E-4 on 1 August 2003.

3.  A Patient Movement Request prepared on 18 June 2006 noted the applicant was admitted to the hospital with no psychiatric history on 15 June 2006 for acute suicidal ideation with the plan of hanging himself.  The applicant was acutely distraught secondary to feeling overwhelming guilt over an affair he had in theater.  The applicant feared his marriage was over and wanted desperately to go home and mend his relationship.  The applicant was becoming increasingly agitated in theater, culminating in having a few emotional outbursts of throwing and breaking things.

4.  On 30 June 2006, he was assigned a temporary physical profile for an adjustment disorder – anxiety and depression.  The DA Form 3349 (Physical Profile) cited his functional limitations and capabilities as having no access to weapons or ammunition for 1 month or until cleared by the outpatient mental health clinic.  The examining psychiatrist stated:

	a.  The applicant did not require inpatient hospitalization.  He had acute adjustment issues related to work and marital stressors.  There was no need to recommend a "chapter separation" or an MEB given his expiration of term of service (ETS) was in October 2006.  However, the applicant had unit stressors that would affect his performance over the next several months and possibly worsen his mental health if not ameliorated.

	b.  An easy remedy would be a shift change or possibly a change in unit.  Any command support for that was appreciated.  He believed it would help the applicant avoid further mental decompensation, decrease work and marital stress, and help him make it to his ETS date, all while allowing him to continue his current mission.

5.  On 1 August 2006, he underwent a mental status evaluation.  The applicant's behavior was found to be normal.  He was fully alert and fully oriented.  His mood or affect was unremarkable.  His thinking process was clear and his thought content was normal.  He was diagnosed with moderate PTSD.  The examining medical doctor stated the applicant continued to experience symptoms of anxiety consistent with mild PTSD.  The applicant's symptoms were currently not of such severity that he did not meet retention criteria in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.  However, the applicant's difficulties with his adjustment since his return from Iraq were such that continued service at that time was not in his or the Army's best interests.  The examining psychiatrist highly recommended the applicant's administrative separation in accordance with Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-17.  The applicant was currently without imminent risk of harm to himself or others.  His diagnoses were:

* Axis I (principal disorder) – PTSD (moderate)
* Axis II (personality disorder) – deferred
* Axis III (medical or neurological problems) – non-contributing

6.  On 3 August 2006, he received counseling from his rear detachment first sergeant regarding initiation of elimination proceedings to separate him from the Army under the provisions of Army Regulation 635-200, paragraph 5-13 (Personality Disorder).  He advised the applicant that if his substandard conduct continued, action could be initiated to separate him from the Army.  He was further advised of the types of discharges he could receive.

7.  On 24 August 2006, the applicant's unit commander notified the applicant of initiation of action to separate him under the provisions of Army Regulation 
635-200, paragraph 5-17 (Other Designated Physical or Mental Conditions), with an honorable discharge.  The reason for the proposed action was his diagnosis of moderate PTSD.  The applicant was also advised of his rights.

8.  On 30 August 2006 after consulting with counsel, the applicant acknowledged receipt of the proposed separation and reason.  He waived his rights and elected to submit a statement in his own behalf.

9.  On 6 September 2006, the applicant's unit commander recommended his separation from the Army under the provisions of Army Regulation 635-200, paragraph 5-17, with an honorable discharge.  The unit commander stated the recommendation was based on the physician's recommendation that the applicant be discharged as his condition was not amenable to any other option.

10.  On 11 September 2006, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 5-17, with the issuance of an Honorable Discharge Certificate.

11.  He was honorably discharged in pay grade E-4 on 19 September 2006 under the provisions of Army Regulation 635-200, paragraph 5-17, by reason of a condition, not a disability.  He completed 4 years, 8 months, and 18 days of net active service with no lost time.
12.  On 30 May 2007, the VA awarded him a 50-percent service-connected disability rating for PTSD (also claimed as anxiety) effective 20 September 2006.

13.  Army Regulation 635-200, paragraph 5-17, provides for the separation of enlisted Soldiers for other designated physical or mental conditions.  A commander may approve separation under this chapter on the basis of other physical or mental conditions not amounting to disability and excluding conditions appropriate for separation processing under Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 5-11 or 5-13, that potentially interfere with assignment to or performance of duty.  The commander will refer the Soldier for a medical examination and/or mental status evaluation.

14.  Army Regulation 635-40, in effect at the time, set forth policies for the disposition of Soldiers found unfit because of physical disability reasonably perform the duties of his/her office, grade, rank, or rating.

	a.  The Physical Disability Evaluation System assessment process involved two distinct stages:  the MEB and the physical evaluation board (PEB).  The purpose of the MEB was to determine whether the service member's injury or illness was severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service.  A PEB was an administrative body possessing the authority to determine whether a service member was fit for duty.  A designation of "unfit for duty" was required before an individual can be separated from the military because of an injury or medical condition.

	b.  Service members who were determined to be unfit for duty due to disability are either separated from the military or were permanently retired depending on the severity of the disability and length of military service.  Individuals who were separated received a one-time severance payment while veterans who retired based upon disability received monthly military retirement payments and had access to all other benefits afforded to military retirees.

	c.  The mere presence of a medical impairment did not in and of itself justify a finding of unfitness.  In each case, it was necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier could reasonably be expected to perform because of his/her office, grade, rank, or rating.  Reasonable performance of the preponderance of duties would invariably result in a finding of fitness for continued duty.  A Soldier was physically unfit when a medical impairment prevented reasonable performance of the duties required of the Soldier's office, grade, rank, or rating.

15.  Army Regulation 40-501, chapter 3, provides the various medical conditions and physical defects which may render a Soldier unfit for further military service.  Paragraph 3-33 states the causes for referral to an MEB for anxiety (PTSD is an anxiety disorder), somatoform, or dissociative disorders are:

		(1)  persistence or recurrence of symptoms sufficient to require extended or recurrent hospitalization; or

		(2)  persistence or recurrence of symptoms necessitating limitations of duty or duty in protected environment; or

		(3)  persistence or recurrence of symptoms resulting in interference with effective military performance.

16.  Title 10, U.S. Code, section 1203, states a member described as unfit to perform the duties of the member's office, grade, rank, or rating because of a physical disability incurred while entitled to basic pay may be separated with severance pay.

17.  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.  The VA has neither the authority nor the responsibility for determining physical fitness for the military service.  It awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability.

18.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions), paragraph 5-7m(1), specifies that the completion of 12 months (may be waived to 6 months) of time in pay grade E-4 and 3 years of time in service (primary zone) or 18 months of time in service (secondary zone) are required for promotion to pay grade E-5.  Recommendation for promotion to pay grade E-5 will be prepared, signed by the recommending official, and then submitted through channels to the headquarters of the promotion authority.  Waivers for one-half of the time in pay grade were permissible.  There is no provisions for an automatic promotion to pay grade E-5.

DISCUSSION AND CONCLUSIONS:

1.  In June 2006, he became distressed in Iraq after engaging in an extramarital affair and feared his marriage was over.  The examining psychiatrist found the applicant's thinking process was clear and his thought content was normal.  The applicant continued to experience symptoms of anxiety consistent with mild PTSD, and he was currently without imminent risk of harm to himself or others.
2.  The applicant was assigned a temporary profile for an adjustment disorder in June 2006.  In August 2006, he was diagnosed with moderate PTSD.  The mental status evaluation stated the applicant had PTSD, but that it was not of sufficient severity to fail retention standards.  His administrative separation was recommended in accordance with Army Regulation 635-200, paragraph 5-17.

3.  The applicant was subsequently notified of the proposed separation action under the provisions of Army Regulation 635-200, paragraph 5-17.  On 19 September 2006, he was honorably discharged from the Army under the provisions of Army Regulation 635-200, paragraph 5-17, for a condition, not a disability.

4.  There is no evidence of record and he has not provided sufficient evidence that indicates his PTSD was medically unfitting (in accordance with the standards in Army Regulation 40-501) and required physical disability processing.  Army Regulation 635-40 provides that the Army rates only conditions determined to be physically unfitting that were incurred in or aggravated during the period of service.  It appears that his moderate PTSD was either treatable or did not require treatment, and he did not fail to meet medical retention standards and should not have been referred to an MEB/PEB.

5.  The evidence of record confirms his separation was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Therefore, he is not entitled to a medical discharge.

6.  The VA rating decision and allied medical records provided by him were also carefully considered.  However, the award of a VA rating does not establish entitlement to a medical discharge and/or medical retirement.  Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service (service connected).  In this case, he was evaluated and is being compensated for his service-connected medical conditions by the VA; however, there is no indication he suffered a disabling condition while in a qualifying duty status that would have supported his processing for retirement through medical channels.

7.  With respect to severance pay, he was not found to be unfit by reason of physical disability during his active duty service.  Therefore, he was not entitled to severance pay.

8.  With respect to promotion to pay grade E-5, the evidence of record shows he was advanced to pay grade E-4 on 1 August 2003.  There is no evidence to show he ever was promised or recommended and approved for promotion to pay grade E-5 prior to his discharge on 19 September 2006.  He must have been recommended by his commander and the recommendation must have been approved by the next higher promotion authority.  He provides insufficient evidence to show his commander improperly declined to recommend him for promotion.

9.  He has provided insufficient evidence to show he was entitled to or promoted to the grade of E-5 prior to this date of separation.  In view of the foregoing, 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 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)                                         AR20130003284



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ABCMR Record of Proceedings (cont)                                         AR20130003284



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