BOARD DATE:	  8 April 2014

		DOCKET NUMBER:  AR20130011608 


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, in effect, the narrative reason for his separation be changed to a medical discharge.

2.  The applicant states the Army discharged him for what they believed to be an adjustment disorder with depressed mood; however, this was not the case.  Within a year of his discharge he was diagnosed with diabetes insipidus and arachnoid cyst on his cerebellum.  The behaviors that led to the reason for his discharge were symptoms of these underlying problems.  The Department of Veterans Affairs (VA) has determined that his disabilities are service-connected.  His type of discharge has prevented him from getting additional services to assist with the many disabilities he has now after his craniotomy.

3.  The applicant provides:

* Separation Packet with allied documents
* Memorandum, Resilience & Restoration Center, dated 17 October 2007
* DA Forms 4856 (Developmental Counseling Form) for the period 
8 September 2006 to 23 October 2007
* Medical Command (MEDCOM) Form 699-R (Report of Mental Status Evaluation), dated 17 October 2007
* VA Form 21-4138 (Statement in Support of Claim), dated 15 March 2012
* VA Rating Decisions, dated 26 September 2012 and 1 February 2013



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 available records show he enlisted in the Regular Army on 4 May 2006 and he held military occupational specialty 21B (Combat Engineer).  Upon completion of initial entry training, he was assigned to Fort Hood, TX.

3.  On 10 October 2007, his commander recommended the applicant be reassigned to the Rear Detachment, 3rd Armored Calvary Regiment pending his  separation from the Army under the provisions of Army Regulation 635-200 (Personnel Separations-Active Duty Enlisted Administrative Separations), Chapter 5-17.  He noted that the applicant's performance as a dismounted rifleman in an Engineer Company was below average due to flawed work ethics, a lack of discipline and attention to detail due to poor mental health.  Further, the applicant's conditions had deteriorated since he arrived to the company impacting the organization's initial mission readiness and overall strength.

4.  On 17 October 2007, he underwent a mental status evaluation at the Carl D. Darnall Army Medical Center, Fort Hood, TX.  The military psychologist diagnosed him with an adjustment disorder with depressed mood and a communication disorder not otherwise specified.  He added that:

* the diagnosis had the potential to develop to a more serious condition requiring a medical evaluation board
* the applicant's condition and problems presented were not amenable to hospitalization, treatment, transfer, disciplinary action, training or reclassification to another type of duty in the military
* it was unlikely that the efforts to rehabilitate or develop the applicant into a satisfactory member of the military would be successful
* the applicant required regular outpatient appointments for treatment of his condition



5.  On an unknown date, his immediate commander notified the applicant of his intent to initiate separation action for other designated physical or mental conditions; specifically adjustment disorder with depressed mood.  The commander recommended the issuance of an honorable discharge.

6.  The applicant acknowledged receipt of the separation notification memorandum and subsequently consulted with legal counsel.  He was advised of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of his rights.  He did not submit a statement on his own behalf; but, he did request counsel.

7.  On 25 October 2007, the intermediate commander recommended approval of the discharge action with the issuance of an honorable discharge.

8.  Consistent with the chain of command's recommendations, the separation authority approved his discharge under the provisions of paragraph 5-17, Army Regulation 635-200, by reason of other designated physical or mental condition with an honorable discharge.

9.  He was accordingly discharged on 14 November 2007.  He completed 1 year, 6 months, and 11 days of creditable active service.

10.  There are no accompanying service medical/treatment records or other documentation that show he was diagnosed with insipidious diabetes and an arachnoid cyst on his cerebellum within a year of his discharge.  Additionally, his records do not indicate that he suffered from an injury, illness, or any medical condition that would have warranted his entry into the Army's physical disability evaluation system (PDES).

11.  The applicant provides:

	a.  His VA statement in support of his claim which contains an account of his medical history.  He contends the following:

* 26 January 2007 [sic] - normal neurology exam
* 26 November 2006 - head laceration from a fall
* 1 March 2007 - developmental counseling from squad leader noted the applicant should "get another medical exam because of [his] motor reflexes [being] delayed,  cannot keep balance when doing a simple calf stretch, thigh stretch, or simply standing in one spot
* comment repeated in April and May counselings
* 17 October 2006 - applicant seen for psychiatric evaluation:  cognitive disorder, insomnia, problems with multi-tasking, spacing out, slow responsiveness, depressed mood, significant speech articulation problems, decreased concentrating ability, and possible neurological problems were noted
* 14 November 2007 - applicant discharged for adjustment disorder with depressed mood
* 25 August 2008 - applicant diagnosed with arachnoid cyst
* 15 October 2008 - suboccipital craniotomy for arachnoid cyst
* Diabetes Insipidous
* June 2007 - desert training for approximately 30 days
* 16 July 2007 - squad leader noted problems with urinating habits on monthly counseling
* 15 October 2008 - post suboccipital craniotomy surgery evaluations from Ochnsner [Medical Foundation] note polydipsia.  Applicant diagnosed post-surgery with diabetes insipidious

	b.  A VA Decision Ratings, dated 26 September 2012 and 1 February 2013, awarding him service connected disability for:

* ataxia and marked imbalance due to cerebellar dysfunction, status post arachnoid cyst removal (also claimed as prominent initial tremors) and assigned a 30 percent disability rating
* adjustment disorder with depressed mood with a 30 percent disability rating
* dysphagia, due ot cranial nerve IX and X neuropathy, status post arachnoid cyst removal and assigned a 10 percent disability rating 
* dysarthria, due to cranial nerve XII neuropathy, status post arachnoid cyst removal and assigned a 10 percent disability rating
* for diabetes insipidus with a 20 percent effective 31 October 2011.  The examiner upon examination of the applicants private treatment records found that it was at least as likely as not that his current diagnosis of diabetes insipidus was related to the 2008 episode of increased urinary output and thirst, elevated sodium, low specific gravity of the urine, low urine osmaolality and high servum osmaolality experienced after the removal of his supra stellar arachnoid cyst.  The causes of central diabetes insipidious include neurosurgery or trauma and are common when the surgery is in the proximity of the sella tursica and the pituitary gland.
	
	c.  Performance counseling for the period 8 September 2006 to
23 October 2007 which show he was counseled for:

* being overweight
* underage drinking
* continued lateness
* his military appearance
* failing to go to his appointed place of duty
* failing to clean his room and maintain his personal hygiene
* poor duty performance and inability to perform basic Soldier tasks
* the need for further medical evaluation to address his delayed motor skills

12.  Army Regulation 635-200, paragraph 5-17, states that commanders who are special court-martial convening authorities may approve separation under this paragraph on the basis of other physical or mental conditions not amounting to disability that potentially interfere with assignment to or performance of duty.  A recommendation for separation must be supported by documentation confirming the existence of the physical or mental condition.  Members may be separated for physical or mental conditions not amounting to disability, which includes those members suffering from a disorder 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 635-40 sets forth policies, responsibilities, and procedures in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  Paragraph 3-1 (Standards of unfitness because of physical disability) of this regulation, provided that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.

14.  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.  However, an award of a higher VA rating does not establish error or injustice in the Army rating.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The VA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability.  

15.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.
DISCUSSION AND CONCLUSIONS:

1.  The applicant requests, in effect, the narrative reason for his separation be changed to a medical discharge.

2.  The evidence of record shows the applicant underwent a mental status evaluation that diagnosed him with an adjustment disorder with depressed mood which was the basis for his recommended separation under the provisions of Army Regulation 635-200, paragraph 5-17.

3.  Accordingly, the applicant's chain of command initiated separation action against him.  In the absence of any medical evidence to the contrary, administrative regularity is presumed in the applicant's separation process.

4.  His subsequent diagnosis of an arachnoid cyst on his cerebullm and diabetes insipidus is not in dispute by the Board; however, medical diagnoses often differ but this does not equate to an error, administrative or otherwise, but more likely it is the result of the subjective nature of medical diagnoses in general.  Absent evidence to the contrary, it is presumed that the military psychologist diagnosis was proper and formulated based on the symptoms exhibited by the Soldier at the time of the evaluation.

5.  The applicant contends that the statements made during his numerous counseling statements relating to his delayed motor skills and frequent urination support his subsequent diagnoses of an arachnoid cyst and diabetes insipidous; however, without medical documentation to determine the onset of these conditions it would be impossible to link his medical conditions to his misconduct or to confirm their existence while on active duty.  Further, the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.

6.  It must also be presumed that his discharge was administratively correct and in conformance with applicable regulations with no indication of any violations of his rights.  His administrative discharge under the provisions of paragraph 5-17 of Army Regulation 635-200 for a physical condition, not a disability appears to be proper.

7.  In view of the circumstances in this case, there is insufficient evidence 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)                                         AR20130011608





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ABCMR Record of Proceedings (cont)                                         AR20130011608



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