IN THE CASE OF:	

		BOARD DATE:	 7 January 2014

		DOCKET NUMBER:  AR20130006683


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 her records to show she was considered by a medical evaluation board (MEB) for the purpose of qualifying for a medical discharge.  

2.  The applicant states:

* she was activated with her U.S. Army Reserve (USAR) unit in Puerto Rico
* she was in a medical hold status for 2 years before she was discharged
* she should have been sent before an MEB for medical discharge
* she is considered 100 percent (%) disabled by the Department of Veterans Affairs (VA) and she receives Social Security Administration benefits 

3.  The applicant provides:

* Orders M-042-0046, issued by the 432nd Transportation Company on    11 February 2003
* Orders 271-2209, issued by Headquarters, U.S. Infantry Center, Fort Benning, GA on 28 September 2005
* DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 15 August 2005
* Orders 06-039-00012, issued by Headquarters, 65th U.S. Army Regional Readiness Command (RRC), Fort Buchanan, PR on 8 February 2006
* her VA rating decision, dated 31 January 2012
* a voluminous collection of military and VA 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 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.  On 17 October 1990, the applicant enlisted in the USAR.  She completed her initial entry training and was awarded military occupational specialty (MOS) 94B (Food Service Specialist).

3.  On 3 November 1997, she was reclassified and awarded MOS 88M (Motor Transport Operator) as her primary MOS.  

4.  On 16 April 1998, she was promoted to the rank/grade of sergeant (SGT)/E-5.

5.  On 18 July 1998, she reenlisted in the USAR.  

6.  Orders M-042-0046, issued by the 432nd Transportation Company on          11 February 2003, ordered her to active duty for a period of 365 days, as a member of the 432nd Transportation Company, Roosevelt Roads Naval Station, PR, in support of Operation Enduring Freedom.  

7.  In February 2003, due to her ongoing medical treatment for depression, which she was receiving at the time of her unit's mobilization, she was determined to be non-deployable and she was transferred to the Medical Hold Company at Fort Buchanan, PR.

8.  On 7 April 2003, she was found fit for duty and her status changed from non-deployable to deployable.  Accordingly, she was transferred back to the 432nd Transportation Company.

9.  On 9 June 2003, she underwent a physical examination.  Her DD Form 2808 shows she was assigned a permanent "3" in the "S" (Psychiatric) category of the PULHES Factor.  Despite this, her examining physician found her qualified for service and annotated her DD Form 2808 accordingly. 

10.  Orders 183-27, issued by Headquarters, U.S. Army Garrison, Fort Buchanan, PR on 2 July 2003, and amended by Orders 189-9, issued by Headquarters, U.S. Army Garrison, Fort Buchanan, PR on 8 July 2003, assigned her to the 377th Theater Support Command at Camp Arifjan, Kuwait, with a proceed date of 9 July 2003.  It appears she attempted to proceed, but after experiencing transportation issues while enroute to Kuwait, she returned to Puerto Rico. 

11.  Orders 23-38, issued by Headquarters, U.S. Army Garrison, Fort Buchanan, PR on 2 July 2003, attached her to the U.S. Army Garrison, Fort Buchanan, PR, effective 13 July 2003, for the period 13 July 2003 through 13 July 2004.

12.  On 17 November 2003, her primary care physician at Fort Buchanan referred her to Roosevelt Roads Naval Hospital for the purpose of receiving a psychiatric evaluation. 

13.  On 26 November 2003, she was evaluated at the Roosevelt Roads Naval Station Hospital.  In her psychological assessment, the examining staff psychologist made the following summary and recommendations:

* return to full duty – the service member is psychologically fit for same, and is responsible for her behavior
* while she is fit for full duty, the evaluating psychologist recommends consideration of an administrative separation based on unsuitability

14.  On 2 December 2003, on a DD Form 689 (Individual Sick Slip), her primary care physician noted her fitness for duty; however, he recommended consideration of her administrative separation due to her severe inability to adjust to the demands of Army life, per her psychological assessment.

15.  On 17 March 2005 and 12 April 2005, she underwent follow-up procedures with her assigned psychologist who, in his outpatient notes, referred to her diagnosed condition using the terms "adjustment disorder with anxiety and depressed mood," "personality disorder," and "dependent personality disorder."

16.  On 22 July 2005, she underwent a separation physical at Fort Benning, GA; however, her DD Form 2808 is unavailable for review.

17.  On 15 August 2005, she was honorably released from active duty, after completing her required period of active duty, and was returned to her USAR troop program unit (TPU) of assignment.  Her DD Form 214 shows she completed 2 years, 6 months, and 5 days of net active service during this period of active duty.  
18.  She was ultimately honorably discharged from the USAR on 8 February 2006. 

19.  The applicant's military medical records are not available for review and her Army Military Human Resource Record (AMHRR), formerly referred to as the Official Military Personnel File (OMPF), does not contain her separation physical.

20.  She provides a voluminous collection of military and VA medical records, including her VA rating decision of 31 January 2012, which shows the VA determined her major depressive disorder to be service-connected and 100% disabling.  Her medical records document her extensive treatment for depression; however, they do not address her ability, or lack thereof, to perform her military duties in accordance with her MOS and grade, aside for the implications of her treatment on her ability to deploy.  Her medical records do not contain recommendations from medical staff regarding her appearance before an MEB. 

21.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army PDES and sets forth policies, responsibilities, and procedures that govern the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.

   a. Paragraph 3-2 provides that for members being separated by reasons other than physical disability, his or her continued performance of assigned duty commensurate with his or her rank or grade until he or she is scheduled for separation or retirement creates a presumption that he or she is fit.  This presumption can be overcome only by clear and convincing evidence that he or she is unable to perform his or her duties for a period of time or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, renders the member unfit.

   b.   Under the laws governing the Army PDES, Soldiers who sustain or aggravate physically unfitting disabilities must meet the following line of duty criteria to be eligible to receive retirement and severance pay benefits:  (1) The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training (IDT); and (2) The disability must not have resulted from the Soldier’s intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence.

	c.  Paragraph 4-9 provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to an MEB.

	d.  Paragraph 4-13 provides that those members who do not meet medical retention standards will be referred to a PEB for a determination of whether they are able to perform the duties of their grade and military specialty with the medically-disqualifying condition.

22.  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%.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends she should have been separated by reason of medical illness following her period of active military service.

2.  The applicant's service medical records are not available for review with this case.  However, the medical records she provided clearly document her struggles with depression during the time she served on active duty.  

3.  Notwithstanding this evidence, there is no indication, based on the available medical documentation, that her depression was severe enough to render her unfit to reasonably perform the duties of her office, grade, or rank, given proper treatment and counseling.  More importantly, under the laws governing the Army PDES, Soldiers who sustain or aggravate physically unfitting disabilities must show the disability had been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or IDT.  The applicant has not provided substantiating evidence to show her depression occurred while entitled to basic pay or as the proximate cause of performing active duty.

4.  Additionally, there is no evidence that either her previous commanders, or the medical officials who treated her, determined her depression was severe enough to warrant her referral to an MEB.  In fact, in several instances, medical officials acknowledged her fitness for duty, as well as her unsuitability based on her inability to adjust to the demands resulting from her unit's activation.

5.  Lacking evidence to the contrary, it is determined that she was properly and equitably released from active duty in accordance with the regulations in effect at the time.  Therefore, there is no basis to grant 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)                                         AR20090007788



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ABCMR Record of Proceedings (cont)                                         AR20130006683



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