IN THE CASE OF:  	  

		BOARD DATE:  8 October 2014	  

		DOCKET NUMBER:  AR20140001610 


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, reconsideration of her earlier request to add vaginitis, breathing problems, and sleep disorder as unfitting conditions and to increase her disability rating to at least 30 percent for medical retirement.

2.  The applicant states:

	a.  She was the victim of a military sexual trauma (rape).  She had vaginitis, breathing problems, and a sleep disorder while serving in the Army.

	b.  She is having problems dealing with and/or trusting men after being raped.  A woman she thought was her friend let the rapist change his clothes and get rid of evidence (underwear and sheets with semen).

	c.  She has had nothing but problems while working at the U.S. Post Office.  Men are constantly harassing her.  She has seen the rapist at Walmart and Red Lobster and he has approached her saying she used to be his girlfriend.  He makes her very nervous and she fears him.

	d.  The constant problems at work, being raped, and the health problems resulting from the incident have caused numerous problems.  She is unable to sleep at night, she has nightmares, and she does not take showers.  She has seen medical doctors, psychiatrists, psychologists, and a social worker.

	e.  She has panic attacks when men come toward her in public/work place.  She is depressed and has anxiety attacks, trouble breathing, chest pains, and stomach problems.  It has caused her to have difficulty remembering things and affected her concentration with her school studies.  She is afraid to trust anyone, she does not have any friends, and she feels worthless in society.

	f.  Due to these medical issues, it was difficult for her to perform minimal tasks, leaving most of her duty time spent in her quarters or in the medical clinic dealing with these problems.  She has a tendency to get upset easily and she has anger problems.  People frustrate her so she has become very private with her life.

	g.  Her performance was noted as being less than marginal at best.  She was transferred three times within 2 years.  She was threatened by a first lieutenant who said she would be given a dishonorable discharge.  She was demoted from a private first class to private two by a male sergeant for not following instructions.  She was punished under Article 15 for disobeying a lawful order, failing to report to her place of duty, and being insubordinate to a noncommissioned officer.

3.  The applicant provides:

* letters from her physician, dated 19 February 2013 and 17 October 2013
* diagnostic report, dated 14 March 2013
* medical records
* letter from a Member of Congress, dated 18 December 2013

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120020059 on 9 July 2013.

2.  The applicant provided letters from her physician and medical records which were not previously considered by the Board.  As such, they are considered new evidence that will now be considered.

3.  The applicant enlisted in the Regular Army on 27 April 2000 for 3 years.  She completed training and was awarded military occupational specialty 75B (personnel administration specialist).

4.  Records show she reported she had been raped on 4 February 2001.

5.  In July 2002, a medical evaluation board (MEB) diagnosed her with chronic mechanical low back pain.  The MEB recommended her referral to a physical evaluation board (PEB).  On 25 July 2002, she concurred with the board's findings and recommendation.

6.  Item 30 (Continuation) of her DA Form 3947 (MEB Proceedings) states, "I CERTIFY THAT THIS MEDICAL BOARD ACCURATELY COVERS ALL OF MY MEDICAL CONDITIONS."

7.  On 30 July 2002, a PEB found her physically unfit due chronic mechanical low back pain, without neurologic abnormality or documented chronic paravertebral muscle spasms on repeated examinations, with characteristic pain on motion.  The PEB recommended a 10-percent disability rating and separation with severance pay.  On 31 July 2002, she concurred with the recommendation of the PEB and waived a formal hearing of her case.

8.  On 7 October 2002, she was honorably discharged by reason of disability with severance pay.

9.  Department of Veterans Affairs (VA) documentation, dated 26 November 2002, shows she was granted service-connected disability for the following medical conditions:

* lumbosacral strain and left wrist tendinitis (10 percent)
* cervical strain and mild scarring status post tick bite and chronic yeast vaginitis (0 percent)

10.  The applicant provided a letter from her physician, dated 19 February 2013, who states:

* the applicant was seen in the office on 30 January 2013
* she is being followed for chronic medical illness
* she has a documented history of rape in the military in 2001
* she has chronic vaginitis; i.e., candidiasis and bacterial vaginitis
* she has a history of endometrial polyp, Bartholin's cyst which has been managed by her gynecologist
* she has chronic vaginal issues which may be related to her history of rape
* she needs continuous treatment for these problems 

11.  She provided a diagnostic report, dated 14 March 2013, which shows she was diagnosed with:

	a.  severe post-traumatic stress disorder (PTSD);

	b.  recurrent, chronic major depressive disorder;

	c.  disease of the vagina due to the rape.  She also has problems with her left wrist, back, chronic eczema, a meniscus tear in her knee, gastroesophageal reflux disease, chronic constipation, migraines, sinusitis, bronchitis, a cervical sprain, hypoglycemia, scoliosis, Bartholin's cyst, and endometrial polyps; and

	d.  strained personal and familial environment, isolation from family and friends:  problems relating with primary support system.

12.  She provided a letter from her physician, dated 17 October 2013, who states she has treated the applicant since 21 August 2013 for her diagnosis of delayed PTSD.

13.  She also provided medical records which show she was treated for various vaginal problems, back pain, headaches, and mental health issues.

14.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying.  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.

15.  Title 10, U.S. Code, chapter 61, provides for disability retirement or separation for a member who is physically unfit to perform the duties of his or her office, rank, grade, or rating because of disability incurred while entitled to basic pay.

16.  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.

17.  Title 38, U.S. Code, sections 310 and 331, permit the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge, or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests the addition of vaginitis, breathing problems, and sleep disorder as unfitting conditions and an increase in her disability rating to at least 30 percent for medical retirement.

2.  Her MEB did not list vaginitis, breathing problems, or sleep disorder as diagnoses and she agreed that the MEB accurately listed all of her current medical conditions.  She provided no evidence to show these conditions rendered her unfit to perform her military duties.  Therefore, there is insufficient evidence with which to add these medical conditions as unfitting conditions.

3.  The evidence shows the PEB found her physically unfit due to due chronic mechanical low back pain, without neurologic abnormality or documented chronic paravertebral muscle spasms on repeated examinations, with characteristic pain on motion.   She concurred with the PEB findings and recommendation on 31 July 2002.

4.  There is insufficient evidence to show her unfitting condition was improperly rated by the PEB in 2002.  Therefore, there is no basis for granting the applicant's request to increase her disability rating.

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 the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20120020059, dated 9 July 2013.



      _______ _   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)                                         AR20140001610



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ABCMR Record of Proceedings (cont)                                         AR20140001610



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