IN THE CASE OF:	  

		BOARD DATE:	  9 July 2015

		DOCKET NUMBER:  AR20140018596 


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 his records to show he was medically discharged with a reason for separation of "medical issue".

2.  The applicant states he developed carpal tunnel syndrome while on active duty and that he also suffers from attention deficit hyperactivity disorder (ADHD) and depression.  These conditions were factors that caused his performance to be unsatisfactory. 

3.  The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge From Active Duty), a Department of Veterans Affairs (VA) rating determination, 56 pages of post-service medical records, 180 pages of service medical records, and 16 pages of military general counseling statements with a self-authored justification for each infraction.

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 served on active duty from 11 January 2010 through 10 June 2011 in military occupational specialty 91A10 (M1 Abrams Tank System Maintainer).

3.  The record contains 22 general counseling statements for diverse infractions including showing up late to work and formations, failing to report for training, missing formations, disobeying a regulation, corrective training assignment, failing to be in correct uniform, failing to complete assigned corrective training, failing to clear billeting and failing the Army Physical Fitness Test (APFT).

4.  The applicant's service medical records show he was seen for chronic apthethous ulcers (canker sores of the mouth), callus (a thickened and hardened part of the skin or soft tissue, especially in an area that has been subjected to friction), dermatophytosis (ring worm - fungal infection of the skin), a rash, ingrown toenail, common cold, corns, venereal disease, drowsiness, anxiety, changes in his eating habits, nutritional issues, occupational problems, knee joint pain, and elbow joint pain with mild median nerve compression. 

5.  It is reported that on 24 February 2011, the applicant underwent a mental status evaluation which indicates he was mentally responsible, with clear thought content, and was able to recognize right from wrong.

6.  On 21 April 2011, the applicant's unit commander notified the applicant of initiation of separation action for unsatisfactory performance.  The unit commander specifically cited his:

   a.  receiving nonjudicial punishment on three occasions for failing to report to his appointed place of duty and once for failing to obey a general order or regulation; 
   
   b.  being counseled for the following:
   
         (1) failing to report at the time prescribed to his appointed place of duty on four occasions;
   
   (2) failing to report in proper uniform on three occasions;
   
   (3) plagiarizing an essay assigned for corrective training;
   
   (4) failing to complete a corrective training essay by the suspense date; 
   
   (5) failing to clean barracks room and clear billeting;

   (6) failing to shave and have a military haircut, and
   
   (7) failing the APFT.

7.  On 21 April 2011, the applicant waived consulting with legal counsel, indicated he understood the impact of the discharge action, and submitted a statement on his behalf.

8.  On 17 May 2011, the separation authority waived further rehabilitation and directed the applicant's discharge with a characterization of service of general, under honorable conditions.

9.  On 10 June 2011, the applicant was discharged under Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 13 for unsatisfactory performance with a general discharge.  He had 1 year and 5 months of creditable service.

10.  On 7 October 2013, the Army Discharge Review Board granted the applicant an upgrade of the characterization of his discharge but declined to change the reason for his discharge.

11.  The private medical documents provided show treatment for flat feet, attention deficit disorder, hair loss, allergic rhinitis, restless legs syndrome, headaches, and carpal tunnel syndrome.

12.  A 2013 letter from the Kaiser Permanente Mental Health Department states the applicant was being treated for ADHD.  This is the earliest diagnosis of this condition in the available records.

13.  On 23 April 2014, the VA granted the applicant disability evaluations for bilateral carpal tunnel syndrome and denied him evaluations for plantar fasciitis, depression, and ADHD.

14.  The medical web site WebMD describes carpal tunnel syndrome as occurring when a combination of health conditions and activities puts pressure on the median nerve as it passes through the carpal tunnel in the wrist.  This pressure leads to symptoms.  Anything that decreases the amount of space in the carpal tunnel increases the amount of tissue in the tunnel, or increases the sensitivity of the median nerve can lead to carpal tunnel syndrome.  Carpal tunnel syndrome causes numbness, tingling, weakness, and other problems in the hand because of pressure on the median nerve in the wrist.

15.  The National Institute of Mental Health website describes attention deficit hyperactivity disorder (ADHD) as one of the most common childhood disorders which can continue through adolescence and adulthood.  Symptoms include difficulty staying focused and paying attention, difficulty controlling behavior, and hyperactivity.  ADHD and three subtypes predominantly hyperactive-impulsive, predominantly inattentive, and combined hyperactive-impulsive and inattentive and it is most commonly considered to be a genetic disorder.

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance, and provides, in pertinent part, that commanders will separate a member under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.

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

18.  Title 38, United States 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 physically 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.

19.  Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-3b(1) provides that for an individual to be found unfit by reason of physical disability, they must be unable to perform the duties of their office, grade, rank or rating.

20.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that:

   a.  Hereditary, congenital and other conditions that existed prior to service (EPTS) may become unfitting through natural progression but should not be assigned a disability rating unless service aggravated complications are clearly documented or unless a Soldier has been permitted to continue on active duty after such a condition, known to be progressive, was diagnosed or should have been diagnosed.
   
   b.  When a member is being separated by reason other than physical disability, their continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that they were unable to perform their duties 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.
   
   c.  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.

DISCUSSION AND CONCLUSIONS:

1.  Post-service, the applicant has been diagnosed with carpal tunnel syndrome, depression, and ADHD.  He contends that these conditions led to his misconduct and he should have been medically discharged as a result of them.

2.  The applicant's medical records and general counseling statements do not support the applicant's contention that his carpal tunnel syndrome, depression, or ADHD were the cause of or contributing factors to his misconduct.

3.  Further, in order to be considered for a medical discharge the conditions would have to be shown to render the applicant unfit for duty.  The applicant has not provided any evidence that at the time of separation he was unfit for duty due to a medical condition.

4.  The applicant's administrative separation was accomplished in compliance with applicable regulations.  The type of discharge directed and the reason for separation is appropriate considering all the facts of the case. 


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)                                         AR20140018596



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ABCMR Record of Proceedings (cont)                                         AR20140018596



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