IN THE CASE OF:	  

		BOARD DATE:	  18 September 2014

		DOCKET NUMBER:  AR20140000612 


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, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was medically discharged for a disability instead of honorably discharged by reason of a "physical condition – not a disability."

2.  The applicant states:

   a.  He was badly hurt during an airborne operation and it changed his whole life.
   
   b.  He has been diagnosed with post-traumatic stress disorder (PTSD), traumatic brain injury (TBI), and sleep apnea which are disabling conditions  directly connected to his honorable military service.

   c.  He exhibited the symptoms of PTSD, TBI, and sleep apnea well before he was discharged from service; however, to his detriment, he received no treatment for these conditions for years.

3.  The applicant provides:

* a self-authored statement
* 2 DD Forms 214
* 14 pages of assorted documents pertaining to the applicant's separation
* Standard Form (SF) 93 (Report of Medical History)
* SF 88 (Report of Medical Examination)
* DD Form 2648 (back) (Preseparation Counseling Checklist for Active Component Service Members)
* DD Form 2697 (Report of Medical Assessment)
* Department of Veterans Affairs (VA) Rating Decision
* 24 pages of post-service medical consult requests, progress notes, and problem lists

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Although the applicant lists his wife as Counsel, she did not render a request on his behalf.

2.  Counsel provides no additional statement. 

3.  Counsel provides no additional evidence.

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 February 1994.  He completed basic combat and advanced individual training as well as the Basic Airborne Course at Fort Benning, GA, and he was awarded military occupational specialty 31F (Network Switching Systems Operator).

3.  On 13 March 1997, while assigned to Company D, 51st Signal Battalion, Fort Bragg, NC, the applicant reenlisted in the rank/grade of specialist/E-4 for 4 years.

4.  On 22 September 1998, the applicant was seen at the Department of Behavioral Health, Fort Bragg, by a psychologist after a referral for a non-emergency mental health evaluation.  He was diagnosed with an adjustment disorder with disturbances of emotion and conduct as well as evident antisocial and narcissistic traits.  
5.  The applicant was found not to have a mental disorder; however, his state of emotional and/or behavioral dysfunction was of such severity that his ability to perform military duties was significantly impaired.  His condition was found to meet the criteria for administrative separation in accordance with paragraph       5-18 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).

6.  On 2 December 1998, the applicant was notified during an event-oriented counseling that he was being considered for administrative separation under the provisions of Army Regulation 635-200, paragraph 5-18 (Physical Condition, Not a Disability).

7.  On 21 December 1998, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him in response to a doctor's evaluation that he had been diagnosed with a severe behavioral dysfunction.  He recommended an honorable discharge.

8.  The applicant acknowledged receipt of the separation notification under the provisions of Army Regulation 635-200, paragraph 5-18.  He acknowledged he understood his rights and had 7 days to submit matters in rebuttal.  He acknowledged he had an appointment for consultation with an attorney; however, it is unknown if he subsequently consulted with legal counsel.  

9.  In a 7 January 1999 memorandum for record, the applicant's immediate commander stated:

   a.  The applicant had no desire to remain on active duty.  He became disillusioned with the military and had lost all military bearing.  He refused to get a haircut and he did not show respect to supervisors or peers.  Recently, his team chief counseled him for repeatedly missing formation.  The applicant walked out stating "he didn’t have to put up with this."

   b.  In October 1998, the applicant's immediate commander had a conversation in which the applicant stated he wanted to leave the military and had felt that way for about a year.  The applicant said he was sick and tired of being told what to do, where to go, getting up early, standing in formation, going to the field; anything that was part of daily military life.

   c.  He was told he could change companies, battalions, or duty stations to improve his situation.  The applicant said the only thing that could improve his situation would be a discharge from the military.  The applicant also stated that he did not want to get into trouble, but he would do whatever was necessary to leave the military.  He said he would use drugs or drive under the influence if he had to.  He stated he had considered using drugs for a long time and admitted that he thought about hurting someone on numerous occasions.  His job performance and attitude had deteriorated over the last few months and he no longer provided any useful service to the unit or military.

10.  Consistent with the chain of command's recommendations, the separation authority approved the applicant's separation under the provisions of Army Regulation 635-200, paragraph 5-18, on 8 January 1999 by reason of other designated physical or mental condition with an honorable discharge.

11.  The applicant was honorably discharged on 2 February 1999 after completing 5 years and 1 day of active service.  His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, paragraph 5-18, by reason of a physical condition, not a disability.

12.  There is no evidence in the applicant's available medical records which shows he received a permanent physical profile or referral to a medical evaluation board (MEB).  Furthermore, there is no evidence in his records to show he was badly hurt in an airborne operation or that he exhibited the symptoms of PTSD, TBI, and sleep apnea well before he was discharged from service.

13.  The applicant provides:

   a.  Medical Progress Notes printed on 26 December 2013 at the Fayetteville VA Medical Center used in the application for disability benefits.  
   
   b.  VA Rating Decision, dated 26 August 2013, which shows he was granted 100 percent service connection for TBI (to include subjective complaints of headaches, tinnitus, and insomnia), effective 10 October 2012. 

   c.  A number of medical records which document his various ailments and treatment throughout his service.  However, there is no evidence in the available service records nor did the applicant provide evidence which shows he sustained a disabling medical condition, he was unfit to perform his duties at the time of discharge, or that he was issued a permanent physical profile.

14.  Army Regulation 635-200 sets forth the policy for the separation of enlisted personnel.  Paragraph 5-18 states 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, sufficiently severe that the Soldier's ability to effectively perform military duties is significantly impaired.

15.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (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 or her office, grade, rank, or rating.  It provides for MEB's which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness).  Disability compensation is not an entitlement acquired by reason of a service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.

	a.  Paragraph 3-1 provides that the mere presence of impairment does not of itself justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade, or rating.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.

	b.  Paragraph 3-2b(2) states that when a member is being processed for separation for reasons other than physical disability (e.g., retirement, resignation, reduction in force, relief from active duty, administrative separation, discharge, etc.), his or her continued performance of duty creates a presumption that the member is fit for duty.  Except for a member who was previously found unfit and retained in a limited assignment duty status in accordance with chapter 6 of this regulation, such a member should not be referred to the PDES unless his or her physical defects raise substantial doubt that he or she is fit to continue to perform the duties of his or her office, grade, rank, or rating.

	c.  Paragraphs 3-2b(2)(a) and 3-2b(2)(b) state that when a member is being processed for separation for reasons other than physical disability, the presumption of fitness may be overcome if the evidence establishes that the member, in fact, was physically unable to adequately perform the duties of his or her office, grade, rank, or rating even though he or she was improperly retained in that office, grade, rank, or rating for a period of time and/or acute, grave illness or injury or other deterioration of physical condition that occurred immediately prior to or coincidentally with the member's separation for reasons other than physical disability rendered him or her unfit for further duty.

16.  Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement).  Chapter 3 provides the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required for the individual in paragraph 3-2, below.  These medical conditions and physical defects, individually or in combination:

* significantly limit or interfere with the Soldier's performance of duties
* may compromise or aggravate the Soldier's health or well-being if the Soldier remains in the military – this may involve dependence on certain medications, appliances, severe dietary restrictions, frequent special treatments, or a requirement for frequent clinical monitoring
* may compromise the health or well-being of other Soldiers
* may prejudice the best interests of the government if the individuals were to remain in the military service

17.  Army Regulation 40-501, paragraph 3-36 (Adjustment Disorders), provides that situational maladjustments due to acute or chronic situational stress do not render an individual unfit because of physical disability but may be the basis for administrative separation if recurrent and causing interference with military duty.

18.  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 of less than 30 percent.

19.  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 an error or injustice on the part of the Army.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The VA does not have authority or responsibility for determining physical fitness for military service.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  As a result, the VA, operating under different policies, may award a disability rating where the Army did not find the member to be unfit to perform his duties.  Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to show he was medically discharged for a disability instead of honorably discharged by reason of a "physical condition – not a disability" has been carefully considered and found to be without merit.

2.  The purpose of the PDES is to maintain an effective and fit military organization with the maximum use of available manpower, provide benefits for eligible Soldiers whose military service is terminated because of a service-connected disability, and provide prompt disability processing while ensuring the rights and interests of the Army and the Soldier are protected.

3.  The applicant was diagnosed with an adjustment disorder with disturbances of emotion and conduct as well as evident antisocial and narcissistic traits.  His state of emotional and/or behavioral dysfunction was of such severity that his ability to perform military duties was significantly impaired; however, in accordance with applicable regulations, his condition was found to meet the criteria for administrative separation.

4.  There is no evidence in the available records and the applicant did not provide sufficient evidence which shows he was diagnosed with a medical condition which would have warranted his entry into the PDES. 

5.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and can only be accomplished through the PDES.  The applicant has not provided sufficient evidence nor do his records contain sufficient evidence to show he was physically or medically unfit at the time of his discharge from active duty in February 1999.  

6.  The applicant was assigned a VA service-connected disability rating of 100 percent in August 2013; however, a VA rating has nothing to do with fitness for continued military service.  The applicant in this case has not submitted any documentary evidence which shows he was unfit to perform his duties.  

	a.  In any case, an award of a rating by another agency does not establish error by the Army.  Operating under different laws and its own policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service.  The VA may award ratings because of a medical condition related to service (service-connected) and affects the individual's civilian employability.

	b.  The PDES provides that 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 office, grade, rank, or rating.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and can only be awarded if the condition is unfitting.  

7.  In view of the foregoing and absent any evidence of error or injustice in the separation process or medical evidence confirming the applicant was suffering from an unfitting condition at the time of his discharge, there is an insufficient evidentiary basis to support granting the applicant's 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)                                         AR20140000612



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ABCMR Record of Proceedings (cont)                                         AR20140000612



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