IN THE CASE OF:	  

		BOARD DATE:  10 September 2013

		DOCKET NUMBER:  AR20130003412 


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 change of her DD Form 214 (Certificate of Release or Discharge from Active Duty) to show she was medically retired due to post-traumatic stress disorder (PTSD). 

2.  The applicant states that due to the severity of the horrific crime she witnessed on a military installation while serving in the Regular Army (RA) from April 1982 to March 1989, she should receive a medical discharge.  She witnessed an officer falling victim to a horrible stabbing.  Her daughter also witnessed this incident.  She and her daughter should have been psychologically evaluated by mental health professionals with follow up and counseling.  Instead, she was only questioned by agents of the U.S. Army Criminal Investigation Command (CID).  She was a young specialist (SPC)/E-4 and a single parent at the time.  No one cared for her or her daughter.  The murder of the officer was publicized and everyone knew about it.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States), dated 3 February 1995
* Court document regarding the estate of the deceased officer
* CID Report of Investigation
* Department of Veterans Affairs (VA) rating decision
* VA Form 21-0781 (Statement in Support of Claim for Service Connection for PTSD)
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 RA on 6 April 1982 and she held military occupational specialties (MOS) 71L (Administrative Specialist) and 71M (Chapel Activities Specialist).

3.  She served in Korea from 26 March 1984 to 12 April 1985.  She was also found fully qualified for reenlistment and reenlisted for 4 years on 11 March 1985.

4.  On 31 December 1986, a CID investigation disclosed that a private had murdered Lieutenant Colonel W--- F. M----- (an officer of Headquarters, U.S. Army Garrison, Presidio of San Francisco) by stabbing him in the abdomen at the Concessionaire mall of the Post Main Exchange.  He was transferred to the emergency room but was pronounced dead while undergoing emergency surgery.

5.  On 20 February 1987, the applicant rendered a sworn statement to CID agents and described what she saw.  She had witnessed the incident and she was kneeling over the deceased and prayed for him while another individual attempted first aid by applying pressure until medical personnel arrived at the scene.

6.  The applicant successfully attended and completed the Primary Leadership Development Course from 29 May 1987 to 26 June 1987.

7.  She underwent a periodic medical examination on 9 November 1988 and she was found medically qualified for retention.

8.  On 10 March 1989, she was honorably discharged in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 4, by reason of expiration of term of service (ETS).

9.  On 11 March 1989, having been found fully qualified for enlistment in the U.S. Army Reserve (USAR), she executed a 6-year enlistment.

10.  On 2 October 1991, she underwent a periodic examination and she was found medically qualified for retention.

11.  While in the USAR, she attended unit drills, participated in annual training, received multiple awards and decorations, successfully completed various training courses, and she was promoted to sergeant first class (SFC)/E-7.  Among her accomplishments she:

* completed the Civil Affairs Operations Course on 31 August 1990
* was awarded the Army Achievement Medal for meritorious achievement on 30 October 1990 
* was awarded Army Achievement Medal for meritorious achievement on
24 February 1993
* was awarded MOS 38A (Civil Affairs Specialist) on 17 June 1992
* completed Phases I and II of the 71L Basic NCO Course on 5 April 1992 and 13 August 1993, respectively
* was promoted to sergeant (SGT)/E-5 on 12 March 1990, staff sergeant (SSG)/E-6 on 21 February 1991, and SFC/E-7 on 11 July 1994
* completed the Advanced NCO Course on 1 May 1994
* completed the Army Functional Files System Course
* completed the USAR Personnel Management Course
* completed the Strength Management Retention Course
* completed the USAR Unit Administration Basic Course

12.  Her record contains multiple DA Forms 2166-7 (NCO Evaluation Report) covering the ratings periods March 1990 through October 1993.  In each case, she was rated "Excellence" or "Success" and "Among the Best" by her rater and "Successful" or "Superior" by her senior rater.  She met the height and weight requirements and she passed the Army Physical Fitness Test.  Some of the bullets used to rate her read: 

* efforts were primary contributions to the successful rating in command inspections
* meets suspense and report requirements on a continued basis to higher headquarters
* demonstrates strong expertise and knowledge in personnel management and Army regulations

13.  On 25 May 1995, she was released from her USAR troop program unit and reassigned to the USAR Control Group (Reinforcement).

14.  Some of her service medical records are available for review with this case.  However, nowhere in her records does it show:

* a permanent physical profile
* A DA Form 2173 (Statement of Medical Examination and Duty Status)
* a diagnosis of a disabling condition that failed retention standards and rendered her unable to perform the duties required of her MOS or grade
* a medical examination that warranted his entry into the Army Physical Disability Evaluation System (PDES)
* a finding of unfitness

15.  The applicant submitted:

	a.  VA rating decision, dated 20 January 2013, that show the VA awarded her service-connected disability compensation for PTSD. 

	b.  An appeal, dated 28 August 1991, regarding the estate of the deceased officer. 

16.  Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability.  The U.S. Army Physical Disability Agency, under the operational control of the Commander, U.S. Army Human Resources Command (HRC), is responsible for administering the PDES and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635-4 (Physical Evaluation for Retention, Retirement, or Separation).

	a.  The objectives of the system are to:

* maintain an effective and fit military organization with maximum use of available manpower
* provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability
* 
provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected

	b.  Soldiers are referred to the PDES:

* when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in a medical evaluation board (MEB)
* receive a permanent medical profile, P3 or P4, and are referred by an MOS/Medical Retention Board
* are command-referred for a fitness-for-duty medical examination
* are referred by the Commander, HRC

	c.  The PDES assessment process involves two distinct stages:  the MEB and the physical evaluation board (PEB).  The purpose of the MEB is to determine whether the service member's injury or illness is 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 is an administrative body possessing the authority to determine whether a service member is fit for duty.  A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition.  Service members who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired, depending on the severity of the disability and length of military service.  Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retirement payments and have access to all other benefits afforded to military retirees.

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

17.  Army Regulation 635-40 establishes the Army PDES and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  Only the unfitting conditions or defects and those which 

contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.

18.  Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement).  Once a determination of physical unfitness is made, the PEB rates all disabilities using the VA Schedule of Rating Disabilities (VASRD).  Ratings can range from 0 percent to 100 percent, rising in increments of 10 percent.

19.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30 percent.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends she should have received a medical discharge.

2.  The applicant completed two periods of active duty -- 6 April 1982 to 10 March 1985 and 11 March 1985 to 10 March 1989.  In each case, she was fully qualified for enlistment or reenlistment.

3.  Although the applicant may have witnessed the death of an officer, she was never found unfit for retention.  Nowhere does it show in her records she had a medically unacceptable condition that failed retention standards and prevented her from performing the duties required of her grade and military specialty.  Nowhere does it show she was issued a permanent physical profile or that she was unable to perform the duties required of her former grade and military specialty.  

4.  On the contrary, her record contains a medical examination, dated 1988, that clearly show she was found medically qualified for retention.  Furthermore, one day after her release from active duty, she was found to have been fully qualified for enlistment in the USAR and she did so on 11 March 1989.

5.  She performed drills and annual training with her TPU, received multiple awards and decorations, completed various training courses, and she was promoted to SFC/E-7.  Not only that, multiple NCOERs clearly show she was technically proficient and able to perform her specialty.  She may have been present at the scene of a crime but she was never found unfit for retention.  

6.  Referral to the Army disability system requires that a designation of "unfit for duty" be determined before an individual can be separated from the military because of an injury or medical condition.  Here, neither her service records nor the selected documents the applicant submitted show she had an unfitting condition.  

7.  The applicant made a choice to terminate her service and begin service in a new component.  She elected to leave the Regular Army.  She was accordingly discharged at the conclusion of his contractual commitment due to expiration of term of service.  Her active service was not interrupted by a medical condition.  It was interrupted by her choice to leave the RA.  

8.  Whenever there is a disability, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating.  A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 

9.  Contrary to her belief that the no one cared for her and her family, the evidence of record clearly shows she was allowed to reenlist in the USAR where she excelled.  Had there been a medical condition that rendered her unable to perform the duties required of her grade and MOS, she would have had ample time to bring up those issues then, not some 20 plus years later.

10.  After a comprehensive review of the available records, there is insufficient evidence to support the applicant's contention that she should have been medically discharged.  As such, she is not entitled to the 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)                                         AR20130003412



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ABCMR Record of Proceedings (cont)                                         AR20130003412



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