IN THE CASE OF:	  

		BOARD DATE:	  10 July 2014

		DOCKET NUMBER:  AR20130018758 


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 her U.S. Army Reserve (USAR) honorable discharge be changed to a medical discharge or medical retirement.

2.  The applicant states:

   a.  Her discharge should be changed because they knew they were discharging her for medical reasons associated with her deployment.  They did not make sure she received a medical board and sufficient eligibility for retirement.  She did not know she could request a change to her discharge and her discharge should have been changed to start with.

   b.  She was being seen by an Army Behavioral Health and Wounded Warrior team at Fort Meade, MD, while serving in the USAR due to issues from her Iraq deployments.  She was reassigned from mobilization to medical hold pending an outcome.  Her medical condition was never considered by a Medical Evaluation Board (MEB); instead, her unit just discharged her despite being told she was medically unfit for duty.  She has since learned that she should have been considered by an MEB because of her Department of Veterans Affairs (VA) 70 percent (%) rating and it would have resulted in her being eligible for a retirement and benefits.  

   c.  She requests the opportunity to have this happen as she has no insurance, only what the VA covers.  She believes she deserves a chance to qualify for a medical discharge and/or medical retirement.  
   
3.  The applicant provides copies of the following:
* three DD Forms 214 (Certificate of Release or Discharge from Active Duty)
* marriage certificate
* Orders Number 044810
* DA Form 4356 (Developmental Counseling Form)
* DA Form 4651 (Request for Reserve Component Assignment or Attachment)
* Email correspondence from the 99th Regional Readiness Command (RRC)
* Orders Number 08-026-00001
* Honorable Discharge Certificate
* fifteen Standard Forms (SF) 600 (Health Record – Chronological Record of Medical Care)
* three VA Rating Decisions and allied documents
* DA Form 2870 (Authorization for Disclosure of Medical or Dental Information)
* VA Form 21-526b (Veteran's Supplemental Claim for Compensation)

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 U.S. Navy (USN) on 2 October 1989 and she served as an electronic equipment repairman.  She was honorably discharged on 23 May 1990, by reason of pregnancy.  

3.  She apparently enlisted in the USN Reserve, on an unknown date.  She was ordered to active duty in support of Operation Enduring Freedom (OEF) from the USN Reserve.  She entered active duty on 2 December 2004.  She served in an imminent danger area from 29 January through 8 September 2005.  She was honorably released from active duty on 12 October 2005 and was transferred to the USN and Marine Corps Reserve Center.  
4.  She was again ordered to active duty in support of OEF and entered active duty on 12 February 2006.  She served in an imminent danger area from 12 March through 25 September 2006.  She was honorably released from active duty on 25 October 2006 and was transferred to the Naval Operations Support Center.

5.  She enlisted in the USAR on 2 February 2007.  She served as a military police (MP).

6.  She provided copies of the following:

   a.  A marriage certificate with date of marriage 31 August 2007;

   b.  Orders Number 044810, dated 31 August 2007, ordering her to active duty for training (ADT) for three days for Operation Iraqi Freedom (OIF);

   c.  Nine SFs 600, dated between 16 October 2007 and 6 January 2008, which show treatment at the Behavioral Health Clinic, National Naval Medical Center (NNMC), Bethesda for reaction to chronic stress and post-traumatic stress disorder (PTSD); 

   d.  A DA Form 4856, dated 6 January 2008, wherein she was counseled:

* current assignment to a troop program unit, the 400th MP Battalion
* expiration of her temporary medical profile on 5 December 2007
* medical condition evaluation to determine deployment status at the Fort Meade Behavioral Health Clinic so as to provide medical documentation to the 99th RRC Surgeon General
* required completion of the Warrior Transition Course 
* her expressed interest in separating from the Army 
* her expected continuance to Soldier and attend battle assemblies during medical evaluation process

   e.  An unsigned DA Form 4651 (Request for Reserve Assignment or Attachment), dated 16 January 2008, wherein the Commander, 400th MP Battalion, requested the applicant's voluntary relief from that unit, under the provisions Army Regulation 135-178 (Army National Guard and Army Reserve – Enlisted Administrative Separations), paragraph 6-6 (Medically Disqualified for Retention);  

   f.  Two SFs 600, dated between 18 January and 6 February 2008, showing she continued to be seen at the NNMC as an outpatient;

   g.  Orders Number 08-026-00001, dated 26 January 2008, honorably discharging her from the USAR effective 31 January 2008, under the provisions of Army Regulation 135-178;

   h.  Three email correspondence, dated between 28 and 29 January 2008, wherein the 99th RRC requested her signature on a DA Form 4651-R and her current medical information from her doctor stating the following:

* her continued care, diagnosis, prognosis, and treatment plan – preferably in Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV) terminology utilizing Axis I – Clinical Syndromes, Axis II – Developmental Disorders and Personality Disorders, and Axis III – Physical Conditions
* a medical statement on his/her opinion [applicant’s] continued service in the USAR

   i.  An Honorable Discharge Certificate, dated 31 January 2008.

7.  There is no evidence in her records showing she served in an imminent danger area in support of OEF or OIF during her period of service from August 2007 through January 2008.

8.  She also provided copies of the following:

   a.  A SF 600, dated 8 February 2008, which shows she was a self-referral at the Behavioral Health Clinic, NNMC, Bethesda, between 16 October 2007 and 6 February 2008.  She was terminated on that date as her status had substantially improved and because she had separated from the service.  The decision to termination was discussed with her.  The form shows her initial diagnosis was PTSD.  Her diagnosis at termination was PTSD and alcohol abuse.  She was found to be stable psychiatrically and medically and no homicidal or suicidal ideations were identified.  Treatment at the VA for PTSD and alcohol abuse was recommended.  

   b.  Four SFs 600, dated between 9 April and 10 June 2008, which show she was seen at the NNMC for follow-up for PTSD and was released without limitations.

   c.  Three VA Rating Decisions and allied documents wherein she was awarded the following on/for:
   
* 13 July 2009 – 50% service-connection for PSTD effective 30 September 2008
* 3 September 2009 – 10% service-connection each for traumatic brain injury, esophagitis, and chronic reflux effective 30 September 2008
* 7 June 2012 – zero % service-connection for residual headaches with a continued 10% rating for traumatic brain injury; she was denied a service-connection for sinus disease

   d.  A DD Form 2870, dated 10 November 2011, wherein she authorized release of her mental health records.

   e.  VA Form 21-526b, dated 28 November 2011, wherein she requested to file a claim for an increased evaluation for TBI and reopening of her previously denied disability of sinuses.

9.  Army Regulation 135-178, in effect at the time, set the policies for the administrative separation of Army National Guard and USAR enlisted Soldiers.  The regulation stated in:

   a.  Paragraph 6-6 - discharge would be accomplished on determination that a Soldier was not medically qualified under procurement medical fitness standards when accepted for enlistment, or who became medically disqualified under these standards.  A Soldier found to be not medically qualified under procurement medical fitness standards would be discharged on the earliest practicable date following such determination.  That paragraph was not to be used in personality disorder cases.  Such cases would be processed under paragraph 6-7.  The service of a Soldier separated under that chapter would normally be characterized as honorable.

   b.  Paragraph 6-7 – the separation authority could approve discharge on the basis of other physical or mental conditions not amounting to disability (Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) that potentially interfered with assignment to or performance of military duty.  Such conditions may include, but are not limited to, severe nightmares, claustrophobia, and personality disorder.

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

11.  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 determined were incurred during military service and subsequently affect the individual's civilian employability.

12.  The DSM-IV uses a multiaxial or multidimensional approach to diagnosing because rarely do other factors in a person's life not impact their mental health.  It assesses five dimensions as described below:

* Axis I:  Clinical Syndromes – This is what they typically think of as the diagnosis (e.g., depression, schizophrenia, social phobia)
* Axis II:  Developmental Disorders and Personality Disorders –

* Developmental disorders include autism and mental retardation, disorders which are typically first evident in childhood
* Personality disorders are clinical syndromes which have a more long lasting symptom and encompass the individual's way of interacting with the world; and they include Paranoid, Antisocial, and Borderline Personality Disorders

* Axis III:  Physical Conditions - which play a role in the development, continuance, or exacerbation of Axis I and II Disorders; physical conditions such as brain injury that can result in symptoms of mental illness are included here

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the applicant served in the USN and USN Reserve prior to enlisting in the USAR.  She was deployed to OEF with the Navy from November 2004 to September 2005 and again from January to October 2006.  She enlisted in the USAR on 2 February 2007.  Between October 2007 and January 2008 she was treated at the NNMC for chronic stress and PTSD.  

2.  On 6 January 2008, the applicant received counseling upon her assignment to the 400th MP Battalion, the expiration of her temporary medical profile, the evaluation of her medical condition at the Fort Meade Behavioral Health Clinic, requirement to provide medical documentation to the 99th RRC Surgeon General, her required completion of the Warrior Transition Course, her expressed interest in separating from the Army, and her expected continuance to Soldier and attend battle assemblies while her medical condition(s) were being evaluated.

3.  On 16 January 2008, the applicant's battalion commander requested the applicant be relieved under the provisions of Army Regulation 135-178, paragraph 6-6, by reason of being medically disqualified for retention.  Prior to that, her command requested she provide them with current medical information from her doctor showing her continued care and stating her diagnosis, prognosis, and treatment plan – preferably in DSM-IV terminology utilizing Axis I, II, and III, and their opinion of her continued service in the USAR.  There is no evidence she complied with the request. 

4.  At the time, she was also provided a DA Form 4651-R to sign for her discharge.  She was honorably discharged from the USAR on 31 January 2008.  There is no evidence of record she served in an imminent danger area during her period of service in the USAR.  

5.  She received treatment for PTSD between October 2007 and February 2008, after her self-referral.  On 8 February 2008, she was advised of the decision to terminate her sessions as she had substantially improved and she had been separated from the service.  She was found to be stable psychiatrically and medically.  Her termination diagnosis was PTSD and alcohol abuse and treatment at the VA was recommended.  

6.  There is no evidence and she did not provide sufficient evidence that indicates her PTSD was medically unfitting and required physical disability processing.  It appears her PTSD was treatable as evidenced by the SF 600, dated 8 February 2008.

7.  It also appears her separation was accomplished in accordance with the applicable regulations.  There is no evidence and she did not provide sufficient evidence to show she was improperly denied a medical discharge/medical retirement from the USAR.  Therefore, she is not entitled to a medical discharge/medical retirement.  

8.  The VA rating decisions and medical documentation she provided were 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 (i.e., service connected).  In this case, she was properly evaluated and is being compensated for her service-connected medical conditions by the VA; however, there is no indication she suffered a disabling condition while in a qualifying duty status to support processing her for retirement separation through medical channels.





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)                                         AR20130018758



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ABCMR Record of Proceedings (cont)                                         AR20130018758



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