IN THE CASE OF:  	  

		BOARD DATE:  7 January 2015	  

		DOCKET NUMBER:  AR20140008363 


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 medically discharged for disability instead of by reason of a "condition, not a disability."

2.  The applicant states she should have been considered disabled at the time of discharge.

3.  The applicant provides no additional evidence

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests correction of the applicant's DD Form 214 to show she was medically discharged for disability instead of honorably discharged by reason of a "condition, not a disability."

2.  Counsel states:

* the applicant served honorably for over 31 months
* she was twice promoted and received numerous awards
* she received improper medical treatment from Army medical providers for an injury that occurred while on active duty and as a result was unable to perform her duties as a Soldier
* despite comments from the physical therapist attesting to the applicant's pain and weakness limitations, no Army doctor recommended an arthroscopic procedure for a potential SLAP (Superior Labrum Anterior and Posterior of the shoulder) tear or to better diagnose her injury
* she should have been referred to a Medical Evaluation Board (MEB)
* her narrative reason for separation of "condition, not a disability" is inaccurate as her injury should have been considered a disability at the time of her discharge
* subsequent to discharge, she sought civilian medical care which led to the proper treatment of her injury and a successful surgery on 8 October 2013
* the applicant has substantial medical bills resulting from the post discharge arthroscopic surgery performed by a civilian orthopedist
* her discharge under paragraph 5-17 is unjust, as it renders her unable to take advantage of benefits to which she would be entitled had her discharge been by reason of disability

3.  Counsel provides:

* Sutter Auburn Faith Hospital Operative Report, dated 8 October 2013
* applicant-authored letter addressed to her company commander, dated January 2013
* printout from the U.S. Army Human Resources Command website pertaining to the Army Physical Disability Evaluation System (PDES)
* article from the American Journal of Roentgenology: Volume 195, titled "Shoulder MRI: What Do We Miss?" dated September 2010.
* Anthem BlueCross BlueShield statement dated 25 October 2013
* pamphlet from Military.com titled, "Understanding the Post-9/11 GI Bill"
* Standard Form 600 (Health Record - Chronological Record of Medical Care)
* letter from the National Personnel Records Center, dated 6 September 2013, providing the applicant a copy of her records obtained from the electronic records storage system
* Headquarters, 229th Military Intelligence Battalion, Defense Language Institute Foreign Language Center memorandum dated 13 May 2013, regarding the applicant's separation under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-17 (Other Designated Physical or Mental Conditions).

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 8 November 2010.  After the completion of basic combat training, she entered advanced individual training at the Defense Language Institute (DLI) Foreign Language Center, Presidio of Monterey, CA in November 2011, where she underwent language training which she did not complete.
2.  She injured her left shoulder on 8 November 2011 while carrying a heavy load of laundry and sought medical care at the Presidio of Monterey Army Health Clinic (POMAHC).

3.  The applicant's available medical records show she sought and received treatment for her shoulder injury on a consistent basis between the dates 
9 November 2011 and 8 May 2013.

4.  On or about 1 February 2012, the applicant reinjured her shoulder, after which she was placed on limited physical activity and removed from the language program at the DLI.  Between the dates 9 November 2011 and 8 May 2013, she underwent multiple physical examinations, received numerous x-rays, magnetic resonance imaging (MRIs), orthopedic consults, was prescribed numerous pain medications, received ultrasound treatment, underwent nerve conduction studies, and routinely participated in physical therapy.

5.  On 4 June 2012, Dr. N____ (Medical Doctor, GS Family Medicine, POMAHC) made the following annotation in the applicant's health record:  "Patient says she is unable to return to classroom because of difficulty writing secondary to shoulder discomfort.  Patient then goes on to say that she simply does not want to return to being a student at the language school and would welcome MOS [military occupational specialty] change.  Disposition regarding these issues: it is administrative not medical and patient is so informed."

6.  On 18 June 2012, Dr. N____ noted the following in the applicant's health record:  "Continuation of initial fitness evaluation.  Suspicion of psychogenic component to level of pain.  Complaint related to dissatisfaction with attending school at this facility.  Patient would welcome MOS change per last conversation in process at the unit level apparently.  Seems to be making progress with functional ability.  Orthopedic meds [medication] reviewed and discussed with Service Member regarding further evaluation.  Patient declined a steroid injection in orthopedic consultation.  Chronic pain not commensurate with current objective findings." 

7.  The applicant's SF 600 reflects that she was scheduled for a command initiated psychological assessment on 26 July 2012.  A copy of that psychological assessment was not provided by the applicant and it is not in her available records for review.


8.  On 8 August 2012, Dr. N____ annotated the following in the applicant's health record: "Service Member is instructed that there [are] no defined findings for which to consider either MEB or activity restriction any longer on a medical basis."

9.  Also on 8 August 2012, Dr. N____ made the following annotation in the applicant's health record:  "Shoulder pain has now been imaged [using] MR [magnetic resonance] Arthrogram [medical imaging to evaluate conditions of joints], plus imaging with marker at pain site, plus pain films and ortho [orthopedic] review.  No anatomic findings other than most minimal finding of perhaps subacromial/deltoid bursitis [a condition caused by inflammation of the bursa], but these are not the limiting pain areas.  Imaging there has no finding and symptoms/findings are not at all deemed neuropathic.   [Service Member is] released for PT [physical training]/recovery unit plus physical therapy discussion regarding timing.  Only DX [diagnosis] has been adhesive capsulitis [extreme stiffness or immobility in the shoulder joint, usually following injury and caused by the adhesions in the joint and inflammation of the capsule of the humerus] after overly prolonged arm sling.  Work up negative: neurology eval [evaluation] and EMG [electromyography--measures muscle response or electrical activity in response to a nerve's stimulation of the muscle]/cervical spine imaging also to evaluate for referred pain and MX [metastasis] upper extremity imaging plus orthopedic evaluation.  All w/o [without] any real pathology.  [I] must suspect psychogenic component contribution.  Discuss pain apprehension as limiting condition but now cleared to truly push PT [physical training] as rehab [rehabilitation]."

10.  The applicant's counsel provides a copy of a letter authored by the applicant and addressed to her company commander, dated January 2013 titled "Chapter Research and Discussion."  The applicant stated, in effect:

* a discharge under paragraph 5-13 is inappropriate and would be detrimental to her future career prospects
* Dr. N____ had displayed bias and was resistant to cooperation in the MEB process
* she did not wish to be stuck at the DLI indefinitely fighting the medical system
* she did not wish to be retained in the Army as she had not physically recovered enough to do many of the activities required of her
* Dr. F____ provided her company commander with a report stating the applicant had a personality disorder disqualifying her from serving in the military (this report is not provided by the applicant nor is it in her available records)
* the applicant sought and received a second opinion stating she did not have a personality disorder hindering her from service in the military (this report is not provided by the applicant nor is it in her available records)
* Dr. F____'s diagnosis of, "personality disorder not specified with narcissistic tendencies," lacked justification and had no relation to her performance as a Soldier
* prior to her injury, the applicant consistently received Army Physical Fitness Test scores between 283 and 300 and maintained a grade point average of 3.5 at the date her Korean class was terminated
* she had no disciplinary counseling statements
* she had received poor medical treatment from military physicians who refused to perform surgery on her shoulder
* she had no record of maladaptive behavior in her life prior to the Army and no history of making up medical maladies
* a paragraph 5-13 discharge based on personality disorder would impair her future chances of gaining good employment and receiving medical care or the Post 9/11 GI Bill Yellow Ribbon Program through the Department of Veterans Affairs (VA)

11.  On 9 May 2013, the applicant's immediate commander notified the applicant of her intent to initiate separation action against her for other designated physical or mental conditions.  The specific reason for the recommended discharge was her history of medical issues that kept her from meeting Army physical fitness standards.  Medical professionals had not been able to determine a diagnosis for her injury and therefore recommended further evaluation by behavioral health.  Behavioral health professionals determined she met psychiatric criteria for administrative separation.  The applicant's commander recommended an honorable discharge.

12.  The report of mental status evaluation or psychiatric report upon which her commander's determination was made is not available in the applicant's records and the applicant did not provide a copy.

13.  The applicant acknowledged receipt of the notification memorandum advising of separation by reason of other designated physical or mental conditions under paragraph 5-17 of Army Regulation 635-200.  She was advised of her right to consult with counsel prior to submitting her Election of Rights and was afforded an opportunity to consult with counsel, but chose to decline the opportunity.  She was advised of the basis for the contemplated separation action and its effects, the rights available to her, and the effect of a waiver of her rights.  She acknowledged she understood that she may expect to encounter substantial prejudice in civilian life if a discharge under other than honorable conditions was issued to her.
14.  On 16 May 2013, consistent with the chain of command's recommendations, the separation authority approved the applicant's discharge.

15.  Her DD Form 214 shows she was discharged on 12 June 2013 under the provisions of Army Regulation 635-200, paragraph 5-17, by reason of "condition, not a disability."  Her character of service is shown as honorable.  She completed 2 years, 7 months, and 5 days of creditable active service.

16.  Subsequent to her military service, the applicant underwent elective shoulder surgery performed by a civilian orthopedist for which she has outstanding medical bills.  Her postoperative civilian diagnosis was: no evidence of SLAP tear, biceps tendinitis with abrasion to the biceps tendon, and tear of the rotator cuff at the interval.

17.  Army Regulation 635-200, chapter 5, paragraph 5-17 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.

18.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army 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 MEBs 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 Army Regulation 40-501 (Standards of Medical Fitness).

19.  Paragraph 3-1 of Army Regulation 635-40 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 Soldier reasonably may be expected to perform because of their office, grade, rank, or rating.  To ensure all Soldiers are physically qualified to perform their duties in a reasonable manner, medical retention qualification standards have been established in Army Regulation 40-501, chapter 3.  These standards include 

guidelines for applying them to fitness decisions in individual cases.  These guidelines are used to refer Soldiers to an MEB.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for correction of her DD Form 214 to show she was medically discharged for disability instead of honorably discharged by reason of a "condition, not a disability" was carefully considered.

2.  The applicant twice injured her shoulder.  After extensive treatment and testing over 18 months, medical professionals were unable to determine the pathology of her continued pain and determined it had a psychogenic origin.  Referral to an MEB was not called for.

3.  According to the applicant, she underwent a mental evaluation by Dr. F____, a mental health professional, who diagnosed her with "personality disorder not specified with narcissistic tendencies."  Although the mental health report itself is not available for review, administrative regularity must be presumed.

4.  The applicant argued she did not desire retention in the Army, but likewise asserted that a discharge under the provisions of Army Regulation 635-200, paragraph 5-13, by reason of "personality disorder" was not in her best interest.

5.  Her chain of command initiated separation action against her under the provisions of Army Regulation 635-200, paragraph 5-17, by reason of a "condition, not a disability".  The applicant did receive an honorable discharge.  All requirements of law and regulation were met, and her rights were fully protected throughout the separation process.  Her discharge under paragraph 
5-17 of Army Regulation 635-200 was not improper, and she provides insufficient evidence to show otherwise.

6.  The ABCMR does not amend and/or correct military records solely for the purpose of making the applicant eligible for employment or VA benefits.

7.  Therefore, she is not entitled to 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)                                         AR20140008363



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ABCMR Record of Proceedings (cont)                                         AR20140008363



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