BOARD DATE:	  5 November 2014

		DOCKET NUMBER:  AR20140003823 


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 DD Form 214 (Certificate of Release or Discharge from Active Duty) to show she was retired by reason of disability vice honorably discharged.  

2.  The applicant states at the time of her discharge she was rated as 80 percent (%) disabled by the Department of Veterans Affairs (VA).  She was not afforded a medical evaluation board (MEB) when she was released from active duty.  She should have been medically retired based on her service-connected disabilities.  Her depression, post-traumatic stress disorder, insomnia, mood disorder, and nightmares were ongoing while she was on active duty. 

3.  The applicant provides 619 pages of various medical documents, dated between 28 September 1996 and 23 January 2012, and a VA Rating Decision.   

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 1 November 1996 and she held military occupational specialty 68W (Health Care Specialist).  She served through several reenlistments and/or extensions and she was promoted to the rank/grade of sergeant (SGT)/E-5 on 1 November 2005.  She was assigned to the 215th Brigade Support Battalion (BSB), 3rd Brigade Combat Team (BCT), 1st Cavalry Division, Fort Hood, TX.


2.  Her records, in part, contain a DA Form 2166-8 (Noncommissioned Officer Report (NCOER)) she received in February 2012 covering the rating period 14 December 2010 through 13 December 2011 while assigned to the 215th BSB as a squad leader during deployment to Iraq in support of Operation New Dawn (OND).  This NCOER shows she passed the Army Physical Fitness Test (APFT) on 3 October 2011 and met the Army height and weight standards.

   a.  In Part IVb (Competence) her rater checked the "success" block and entered the following comments:

        (1)  mentored three Soldiers to complete 15 hours of college while completing 3 semester hours towards a Bachelor Degree in Science;

        (2)  organized and executed over eight company organizational day activities while in theater which increased morale tenfold; and

        (3)  handled extremely stressful and potentially dangerous situations during Operation New Dawn while conducting continuous combat missions.

   b.  In Part IVc (Physical Fitness and Military Bearing) of this NCOER, her rater checked the "success" block and entered the following comments:

        (1)  motivated, enthusiastic NCO who took the lead in organized physical training for the section; and

        (2)  possessed the physical and mental stamina to drive Soldiers to survive on today's battlefield.

	c.  In Part IVd (Leadership) her rater checked the "excellence" block and, in part, entered the following comments:

        (1)  selected to appear before the Sergeant Audie Murphy Board; represented the unit with exceptional distinction;

        (2)  coached two Soldiers during her personal time to pass the APFT resulting in the Soldiers being removed from the Army Weight Control Program; and

        (3)  led her Soldiers during the 10 months of combat operations throughout the USD-South supporting sustainment and replenishment of supplies.

3.  Her Enlisted Record Brief, dated 18 June 2012, shows she passed the APFT in October 2011 and had a physical profile of "112111."  It also shows she was single and had three dependent children.

4.  The specific facts and circumstances surrounding her discharge processing are not available for review with this case.  However, her record contains a memorandum, dated 20 June 2012, wherein Colonel DCC, Commander, 3rd BCT, 1st Cavalry Division, Fort Hood, stated, after reviewing her separation packet and careful consideration of all matters, he approved her involuntary separation under the provisions of Army Regulation 635-200, paragraph 5-8, due to parenthood.  He directed the issuance of an Honorable Discharge Certificate.

5.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) she was issued shows she was honorably discharged on 27 June 2012 in the rank SGT under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-8, by reason of parenthood with entitlement to separation pay.  She completed 15 years, 7 months, and 27 days of creditable active service and received $28,170.01 in separation pay.

6.  There is no evidence in her record, and she did not provide any evidence, that shows while serving on active duty she was treated for, or diagnosed with, any mental/medical condition/disorder that permanently prevented her from performing her assigned duties, was found to be unfitting, or required referral to an MEB or physical evaluation board (PEB) (emphasis added).  There is no evidence that shows she ever received a permanent profile of "3" that would require referral to an MEB/PEB. 

7.  The applicant provides a VA Rating Decision, dated 12 September 2012, wherein it stated she was granted service-connected disability effective 28 June 2012 as follows:

* 50% for obstructive sleep apnea
* 10% for thoracolumbar strain with degenerative disc disease
* 10% for left hip strain
* 10% for right hip strain
* 10% for anxiety disorder, not otherwise specified
* her overall/combined rating was 70%

8.  Army Regulation 635-200, paragraph 5-8 (Involuntary Separation Due to Parenthood), states Soldiers will be considered for involuntary separation when parental obligations interfere with fulfillment of military responsibilities.  Specific reasons for separation because of parenthood include:  (1)  Inability to perform prescribed duties satisfactorily, (2) Repeated absenteeism, (3) Repeated tardiness, (4) Inability to participate in field training exercises or perform special duties such as charge of quarters and staff duty NCO, and (5) Non-availability for worldwide assignment or deployment according to the needs of the Army.

9.  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 MEB's/PEB’s 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 qualification for retention based on the criteria in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.

10.  The Army physical profile serial system is based primarily upon the function of body systems and their relation to military duties.  The functions of the various organs, systems, and integral parts of the body are considered.  An individual having a numeric designation of "1" under all factors is considered to possess a high level of medical fitness.  A physical profile designator of "2" under any or all factors indicates an individual possesses some medical condition or physical defect that may require some activity limitations.  A profile containing one or more numerical designations of "3" signifies the individual has one or more medical condition that may require significant limitations.  A permanent profile of "3" would require referral to an MEB.

11.  Army Regulation 635-40 further states 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/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 that service member can be medically separated or retired.

12.  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.

13.  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, 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.  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.  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 complete facts and circumstances surrounding the applicant's discharge processing are not available for review with this case.  However, her records contain a memorandum showing the separation authority approved her involuntary separation under the provisions of Army Regulation 635-200, paragraph 5-8, by reason of parenthood.

2.  In the absence of evidence to the contrary, it is presumed that her separation processing was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized her rights and that the type of discharge directed and the reason for discharge were appropriate considering the available facts of the case.

3.  While she may have received medical treatment for various reasons throughout her service, the evidence of record does not show and she has not provided any evidence that shows she was ever treated for or diagnosed with any mental/medical condition/disorder that permanently prevented her from performing her assigned duties.  Further, there is no evidence of any medical/mental conditions that were unfitting or warranted referral to an MEB or PEB while she was serving on active duty.  

4.  A disability decision rendered by another agency does not establish an error on the part of the Army.  Operating under different laws and its own policies, the VA does not have the authority or the responsibility for determining the medical condition of a Soldier at the time of their discharge from active duty.  The VA may award ratings because of a service-connected disability that affects the individual's civilian employability.  

5.  In view of the foregoing, there is an insufficient evidentiary basis for 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)                                         AR20140003823



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ABCMR Record of Proceedings (cont)                                         AR20140003823



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