IN THE CASE OF:	  

		BOARD DATE:	  5 	May 2015

		DOCKET NUMBER:  AR20140011340 


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 records to show she was separated for medical reasons.  She also requests correction of her DD Form 214 (Certificate of Release or Discharge from Active Duty) by changing the separation code, narrative reason for separation, and reentry (RE) code to reflect a medical discharge. 

2.  The applicant states:

	a.  Prior to her discharge, she was suffering from post-traumatic stress disorder (PTSD) due to sexual trauma.

	b.  Although she is rated 100 percent (%) disabled by the Department of Veterans Affairs (VA), she is still struggling to obtain some benefits for her and her daughter due to the inaccuracy of her discharge.

	c.  She was misdiagnosed at the time of her separation from active duty.

	d.  After becoming homeless, a social worker directed her to go to the VA medical center for treatment.  While receiving treatment, her team of doctors at the VA determined that at the time of her separation from active duty, she was already suffering from PTSD due to the assault.  Her weight gain was a side effect.

	e.  In 2011, after a long and hard battle because of the loss of her medical records, she was finally awarded 100% service-connected disability compensation for PTSD.

3.  The applicant provides a copy of her DD Form 214, letters from the VA Medical Center in Memphis, Tennessee, dated 15 August 2005 and                  21 December 2005, and two third-party statements of support.

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 1 November 1990 for a period of 4 years.

3.  Her records include a DA Form 4856 (General Counseling Form), dated 
27 January 1992, which shows she was counseled for failing to meet Army weight standards.  

4.  A memorandum, dated 14 February 1992, subject:  Weight Control Program, shows she was entered into the Army Weight Control Program.  

5.  A memorandum, dated 18 February 1992, subject:  Weight Control Program, shows she was cleared by medical personnel for participation in a weight control/physical exercise program.  The memorandum further shows that the cause of the overweight condition was not due to a medical condition.  

6.  Her records also include documentation that indicates she was provided nutrition and weigh control counseling during the period 17 March-13 May 1992, in accordance with Army Regulation 600-9 (The Army Weight Control Program).

7.  On 26 May 1992, a bar to reenlistment was imposed against her for failure to meet Army weight control standards.  On 29 May 1992, she acknowledged the imposition of the bar to reenlistment against her.  She elected not to appeal the bar to reenlistment.  

8.  On 29 May 1992, she voluntarily requested early separation under the provisions of Army Regulation 635-200 (Personnel Separations-Enlisted Personnel), paragraph 16-5 (Voluntary separation for Soldiers denied reenlistment).  

9.  On 3 June 1992, the appropriate authority approved the separation action and directed her service be characterized as honorable.  On 15 June 1992, she was released from active duty and transferred to the U.S. Army Reserve Control Group (Reinforcement).  Her DD Form 214 shows:

* the separation authority as Army Regulation 635-200, paragraph 16-5
* the separation code of "KGF"
* she was given an RE code of 3
* the narrative reason for separation as "locally imposed bar to reenlistment"

10.  The applicant's record is void of medical documentation that indicates she suffered from an unfitting PTSD condition during her active duty service.  In addition, there is no evidence showing she was unable to perform her military duties due to an unfitting medical condition or that she was deemed unfit for retention at the time of her discharge.  Her record is also void of evidence indicating she was a victim of sexual, mental, or physical abuse.

11.  The applicant provided:

	a.  a letter from the VA Medical Center in Memphis, Tennessee, dated          15 August 2005, which indicates she was being treated for severe psychiatric problems that caused her hospitalization;

	b.  a letter from the VA Medical Center in Memphis, Tennessee, dated         21 December 2005, which indicates the following:

* she was diagnosed with PTSD, major depression, and dissociative identity disorder
* the evaluating physician opined that her symptoms are directly related to her being raped while in the military and stationed in Kuwait

	c.  two third-party statements of support that attest to her deteriorating physical and mental health.  

12.  Army Regulation 600-9 provides that commanders and supervisors will implement the Army Weight Control Program.  Overweight is defined as when a Soldier's percent of body fat exceeds the standard specified in the regulation.  Body fat composition will be determined for personnel whose body weight exceeds the screening table weight.  A medical evaluation will be accomplished when requested by the unit commander or when the Soldier is being considered for separation due to failure to make satisfactory progress in a weight control program.  If health care personnel discover no underlying or associated disease process as the cause of the condition and the individual is classified as overweight, these facts will be documented.

13.  Army Regulation 600-9, the version in effect during the applicant's active duty service, provided in paragraph 22 that personnel who exceeded the screening table weight and the body fat standard for their age group would not be allowed to reenlist or extend their enlistment.  

14.  Army Regulation 635-200, in effect during the applicant's active duty service, provided in paragraph 16-5, that Soldiers who perceived they would be unable to overcome a locally imposed bar to reenlistment could request immediate separation.  

15.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria for enlistment and processing into the Regular Army and the U.S. Army Reserve.  This regulation provides that prior to discharge or release from active duty individuals will be assigned RE codes based on their service records or the reason for discharge.  Chapter 3 of this regulation prescribes basic eligibility for prior-service applicants for enlistment.  This chapter includes a list of Armed Forces RE codes.  

   a.  RE-4 applies to persons not qualified for continued Army service.
   
   b.  RE-3 applies to persons not qualified for continued Army service at the time of discharge, but the disqualification is waivable.

	c.  RE-1 applies to persons completing their term of service who are considered qualified to reenter the Army, so long as all other qualifications are met.

16.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes), the version in effect during the applicant's active duty service, prescribed the specific authorities and the reasons for the separation of members from active military service and the SPD codes to be used.  The regulation shows that the SPD code of "KGF" as shown on the applicant's DD Form 214 is appropriate for voluntary discharge when the narrative reason for separation is locally imposed bar to reenlistment and the authority for separation is Army Regulation 635-200, paragraph 16-5.

17.  The SPD Code/RE Code Cross Reference Table, dated 2 October 1989, provided that when the SPD code is "KGF" then an RE code of 3 or 4 would be assigned.

18.  Army Regulation 40-501 (Standards of Medical Fitness) provides that for an individual to be found unfit by reason of physical disability, he/she must be unable to perform the duties of his or her office, grade, rank or rating.  Performance of duty despite impairment would be considered presumptive evidence of physical fitness.

19.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the 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 a medical evaluation board that is 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, chapter 3.  Disability compensation is not an entitlement acquired by reason of 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 2-1 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 2-2b(1) provides 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 (until he or she is referred to the PDES for evaluation for separation for reasons indicated above) 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.  Paragraph 2-2b(2) provides 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.

20.  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 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/her 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 contention that her records should be corrected to show she was separated for medical reasons and that her DD Form 214 should be corrected to show a different separation code, narrative reason for separation, and RE code has been carefully considered. 

2.  The evidence of record shows the applicant failed to meet the Army weight control standards as set forth in Army Regulation 600-9.  The evidence also shows she was examined by a competent medical authority and she was found to be fit for participation in a weight control/physical exercise program.  The evidence further shows the cause of her overweight condition was not due to a medical condition.  

3.  Her argument and evidence submitted were carefully considered; however, her record is void of any clear indication that she was suffering from an unfitting PTSD condition at the time of her separation.  It is possible she may have developed PTSD at a later date; however, there is insufficient medical evidence indicating she was unfit to perform her military duties due to PTSD.

4.  An award of a VA rating does not establish entitlement to medical retirement or separation.  The VA is not required to find unfitness for duty.  Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected.  Furthermore, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army must find unfitness for duty at the time of separation before a Soldier may be medically retired or separated.

5.  The evidence confirms her voluntary request for separation was processed and accomplished in accordance with the applicable regulatory policy.  All requirements of law and regulation were met and her rights were fully protected throughout the separation process.

6.  The applicant was separated, in accordance with her request, under the provisions of Army Regulation 635-200, paragraph 16-5.  Therefore, the separation code, narrative reason for separation, and RE code shown on her 
DD Form 214 are correct in accordance with the applicable regulations at the time.

7.  The applicant has failed to show that her separation processing, separation code, narrative reason for separation, and RE code she received were in error or unjust.  As a result, there is no basis for granting the applicant a medical discharge.

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)                                         AR20140011340



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ABCMR Record of Proceedings (cont)                                         AR20140011340



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