IN THE CASE OF:	  

		BOARD DATE:	    7 April 2015

		DOCKET NUMBER:  AR20140012018 


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 her military records to show she was discharged due to a physical disability and that she held the rank of specialist, pay grade E-4.

2.  The applicant states she was supposed to have received a medical evaluation board (MEB); however, she was instead administratively discharged.

3.  The applicant provides copies of:

* A Memorandum for Physical Evaluation Board (PEB) Liaison Officer (PEBLO), dated 4 January 2011
* An Enlisted Record Brief (ERB) dated 30 August 2011
* A Memorandum for Commander from applicant's legal counsel, dated        19 December 2011
* A DA Form 3349 (Physical Profile) dated 4 January 2012
* A Memorandum for Commander from the applicant's legal counsel, dated 11 January 2012
* A Memorandum for Commander from the applicant's legal counsel, dated 25 January 2012
* A DA Form 3822 (Report of Mental Status Evaluation) dated 25 January 2012 and 27 January 2012
* A DD Form 214 (Certificate of Release or Discharge from Active Duty) ending on 4 April 2012
* Service Medical Records dated from 2006 to 2012 (about 460 pages)
* Coastal Medical Specialists, Hinesville, Georgia, Progress notes, diagnostics, and reports dated between 25 August 2011 and 5 January 2012 (about 21 pages)
* A Department of Veterans Affairs (VA) Rating Decision, dated 16 May 2013 (12 pages)

CONSIDERATION OF EVIDENCE:

1.  The applicant's Official Military Personnel File (OMPF) has not been updated since 2010.  However, the documents provided by the applicant are sufficient for the Board to conduct a fair and impartial review of this case.

2.  The applicant's ERB, dated 30 August 2011, shows that:

	a.  she entered the Regular Army on 7 September 2006 and was subsequently awarded a military occupational specialty of 91J (Quartermaster/Chemical Equipment Repairer);

	b.  she was advanced to specialist, pay grade E-4 on 1 June 2008;

	c.  she was reduced to private, pay grade E-1 on 1 July 2010;

	d.  she was advanced to private, pay grade E-2 on 1 December 2010; and

	e.  she was flagged for various reasons on 28 February and 9 August 2011.

3.  A Letter of Intent dated 4 January 2011 indicates that the applicant was evaluated by a physician who determined she did not meet medical retention standards due to uncontrollable asthma.  The physician stated the applicant received a temporary physical profile on 4 January 2012 and implies that the MEB should write a permanent physical profile.

4.  The records provided by the applicant indicate that she was reduced to private, pay grade E-1 on 5 October 2011.  Specific reason(s) for this reduction are unavailable.

5.  In a memorandum dated 19 December 2011, the applicant's legal counsel informed her battalion commander that completion of the MEB process takes precedence over an administrative separation under the provisions of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations).


6.  A DA Form 3349, dated 4 January 2012, shows the applicant was issued a temporary physical profile for uncontrollable asthma with an expiration date of 
4 March 2012.  Block 8 (Functional Limitations and Capabilities and Other Comments) contains the entry: "MEB initiated IAW AR40-501 Ch 3-27 a. 2(c) Permanent profile to be written by MEB physician."

7.  On 11 January 2012, the applicant's legal counsel provided clarifying comments to her brigade combat team commander concerning her election of rights and completion of a mental status evaluation based on an administrative separation under AR 635-200, chapter 14.

8.  A DA Form 3822, dated 25 January 2012, shows that a mental status evaluation was requested to obtain clearance for administrative separation under the provisions of AR 635-200, paragraph 14-12b.  The report states that further assessment was needed to determine whether she was fit for duty.  The applicant was found to have no obvious cognitive impairment, was cooperative in behavior, had normal perception, was unlikely to be impulsive, had no dangerous suicidal or homicidal thoughts and no dangerous intent of suicide or homicide.  She was found to exhibit signs of depression, anxiety, and insomnia.  She was also diagnosed with asthma.  She was negative for post-traumatic stress disorder (PTSD) and mild traumatic brain injury (TBI).  She was permitted to participate in physical training within the limits of her physical profile.  She was not cleared for administrative separation due to being under duress due to a command change from a potential separation based on an MEB/PEB.

9.  On 25 January 2012, the applicant's legal counsel informed her brigade combat team commander that he was not able to complete her election of rights because the DA Form 3822 dated that same day stated she was not cleared for administrative separation.  He further advised that because she was not cleared for separation under AR 635-200, chapter 14, the appropriate action would be to pursue the initial administrative action under AR 635-200, chapter 13.

10.  A DA Form 3822, dated 27 January 2012, shows that a mental status evaluation was requested to obtain clearance for administrative separation under the provisions of AR 635-200, paragraph 14-12b.  The report shows the applicant was fit for duty.  The applicant was found to have no obvious cognitive impairment, was manipulative in behavior, had normal perception, was unlikely to be impulsive, had no dangerous suicidal or homicidal thoughts, and no dangerous intent of suicide or homicide.  She was found to exhibit signs of depression and had occupational problems.  She was also diagnosed with asthma.  She was negative for PTSD and TBI.  She was permitted to participate in physical training within the limits of her physical profile.  She was psychiatrically cleared for any administrative action deemed appropriate by the command due to being under duress due to a command change from a potential separation based on an MEB/PEB.

11.  The administrative separation packet is not in the applicant's OMPF.  However, her DD Form 214, as provided by the applicant, shows she was administratively discharged on 4 April 2012, under the provisions of Army Regulation 635-200, paragraph 14-12b due to a pattern of misconduct.  She was given a Separation Program Designator (SPD) JKA and a reentry (RE) code 3.  Her service was characterized as under honorable conditions (general).  She had completed 5 years, 6 months, and 28 days of creditable active duty service.  At the time of her discharge, she held the rank of private, pay grade E-1 with a date of rank of 5 October 2011.

12.  The VA Rating Decision, as provided by the applicant, shows the VA granted her an overall combined service connected disability rating of 90 percent, effective 5 April 2012, for the following conditions:

* Major depressive disorder and anxiety disorder rated at 70 percent disabling
* Asthma rated at 30 percent disabling
* Left ankle sprain status post fracture rated at 10 percent disabling
* Left hip greater trochanteric bursitis and tendonitis rated at 10 percent disabling
* Lumbar spine strain rated at 10 percent disabling
* Left knee patellofemoral syndrome rated at 10 percent disabling
* Left hip greater trochanteric bursitis and tendonitis with limitation of extension rated at zero percent disabling
* Allergic rhinitis rated at zero percent disabling
* Tinea pedis (claimed as dermatophytosis) rated at zero percent disabling

13.  The VA Rating Decision, as provided by the applicant, shows she was denied service connection for the following conditions:

* Sleep apnea
* Restless leg syndrome
* Tonsillar hypertrophy
* Narcolepsy (claimed as hypersomnia)

14.  AR 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include a pattern of misconduct.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.
15.  AR 15-185 (Army Board for Correction of Military Records (ABCMR)) paragraph 2-9 provides that the Board begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

16.  AR 40-501 (Standards of Medical Fitness) provides the standards for medical fitness for retention and separation, including retirement.  Soldiers with medical conditions listed in this chapter should be referred for disability processing.

17.  AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation):

	a.  This regulation provides that the mere presence of an 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.

	b.  It also provides that when a member is being separated by reason other than physical disability, his or her continued performance of assigned duty commensurate with his or her rank or grade until he or she is scheduled for separation or retirement creates a presumption that he or she is fit.  This presumption can be overcome only by clear and convincing evidence that he or she was unable to perform his or her duties for a period of time or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

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% and 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 at less than 30%.

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 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.  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 contends that the reason and authority for her discharge should be changed to show she was separated due to a physical disability.  She further contends that she should have been discharged in the highest rank and pay grade that she had held.

2.  The available evidence shows that the applicant was advanced to specialist, pay grade E-4 on 1 June 2008.  However, in 2011 she was flagged on three separate occasions and was ultimately reduced to private, pay grade E-1 effective 5 October 2011.  There is no evidence showing that she was promotion eligible at any time between the date of her grade reduction and her date of discharge.

3.  The available evidence shows that the applicant was administratively separated due to a pattern of misconduct; however, the discharge packet is not available for review.

4.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with his overall record.

5.  The applicant's last mental status evaluation, dated 27 January 2012, shows that she was cleared for administrative separation under the provisions of AR 635-200, paragraph 14-12b.  The report further stated she was fit for duty.

6.  Because the applicant's physical condition was not determined to be medically unfitting for retention at the time of her discharge there was no basis for a medical retirement or disability separation from active duty.

7.  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 from active duty.

8.  There does not appear to be an error or an injustice in his case.  The applicant's contention that she should have been evaluated by a MEB/PEB is understandable given her numerous medical conditions that were identified by the VA as service connected.  However, there is no evidence showing that any of these conditions rose to such a level as to cause her to be unfit for duty.

9.  An award of a VA rating does not establish entitlement to medical retirement or disability separation from the Army.  Operating under its own policies and regulations, the VA, which has neither the authority nor the responsibility for determining medical unfitness for military duty, awards ratings because a medical condition is related to service ("service-connected") and affects the individual's civilian employability.  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 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.

10.  In view of the above, the applicant's request should be denied.

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)                                         AR20140012018





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ABCMR Record of Proceedings (cont)                                         AR20140012018



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