IN THE CASE OF:	  

		BOARD DATE:	  18 August 2015

		DOCKET NUMBER:  AR20150000419 


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 DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was medically discharged for disability instead of by reason of a "condition, not a disability."

2.  The applicant states:

* his reason for discharge should be disability due to a service-connected disability determination he received from the Department of Veterans Affairs (VA)
* his military medical records demonstrate medical disability
* he only recently became aware of his rights

3.  The applicant provides:

* VA Rating Decision, dated 17 December 2013
* multiple Standard Forms 600 (Chronological Record of Medical Care), ranging in date from 2 February 2010 through 24 November 2010
* Consultation Report, dated 26 October 2010

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 5 January 2010.

3.  He provided medical documentation showing he was treated for lower back pain and left leg pain on 2 February 2010.  He states the onset of his symptoms occurred after stepping in a depression during a night land navigation training exercise.  He was given stabilization exercises, naproxen, acetaminophen, and methocarbamol for pain relief.

4.  On 26 October 2010, he was seen at the Landstuhl Regional Medical Center for continuing lower back pain.  He was given a temporary physical profile advising against running, jumping, wearing the rucksack and participating in combative training for 4 weeks, expiring on 20 November 2010.  At that same appointment he was given a treatment plan that incorporated attending physical therapy two times per week for 3 weeks.  On 19 November 2010, during a follow-up appointment, he was scheduled to attend a back stabilization class, continuation of physical therapy one time per week, then released to an independent home exercise program.  His temporary physical profile was extended another 4 weeks when he was expected to return to full duty.

5.  His available service records to not indicate he:

* was issued a permanent physical profile
* suffered from a medical condition, or physical or mental condition that affected his ability to perform the duties required by his military occupational specialty (MOS) and/or grade or rendered him unfit for military service
* was diagnosed with a medical condition that warranted his entry into the Army Physical Disability Evaluation System (PDES)
* was diagnosed with a condition that failed retention standards and/or was unfitting

6.  A 19 May 2011 letter from a behavioral health clinician and a psychiatrist at the Grafenwoehr Behavioral Health Clinic to the applicant’s company commander stated the following:

* the applicant participated in behavioral health services since August 2010
* he experienced significant emotional problems in attempting to adjust to Army life and transition to life overseas
* the focus of his clinical attention was an adjustment disorder with disturbances of emotions
* his symptoms at the time of the letter were intense, overwhelming, and unmanageable emotions
* his emotional condition produced unpredictable behavioral reactions rendering him unable to engage the enemy and unable to protect himself and fellow Soldiers
* he exhibited no behavioral features suggestive of malingering
* he manifested a chronic pattern of difficulty adjusting and efforts to rehabilitate him would fail

7.  His records contain a DD Form 2808 (Report of Medical Examination), dated 13 July 2011, which showed the applicant was diagnosed with depression and lumbago (lower back pain), but was qualified for service.  A DA Form 3822 (Report of Mental Status Evaluation), dated 18 August 2011, cleared him for administrative separation under the provisions of Army Regulation 635-200 
(Active Duty Enlisted Administrative Separations), paragraph 5-17 (Other Designated Physical or Mental Conditions).  This form shows:

* he was unfit for duty due to a personality disorder or other mental condition that did not amount to a medical disability
* he had no obvious cognitive impairments
* his behavior was suspicious
* he was occasionally impulsive
* he was not dangerous
* he could understand and participate in administrative proceedings
* he was diagnosed with adjustment disorder with depressed mood
* he met the psychiatric criteria for expeditious administrative separation in accordance with Army Regulation 635-200, paragraph 5-17
* he was screened for post-traumatic stress disorder and traumatic brain injury and neither condition was present

8.  On 23 August 2011, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him under the provisions of Army Regulation 635-200, paragraph 5-17.  The reason for the proposed action was the recommendation by his treating psychiatrist that he be discharged due to a diagnosis of an adjustment disorder with disturbance of emotions.  His commander recommended an honorable discharge.

9.  The applicant acknowledged receipt of the notification memorandum advising of separation by reason of other designated physical or mental conditions under the provisions of paragraph 5-17 of Army Regulation 635-200.  He elected to consult with counsel prior to submitting his Election of Rights.  He was advised of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of his rights.  He acknowledged he understood that he may expect to encounter substantial prejudice in civilian life if a discharge under other than honorable conditions were issued to him.  He did not submit statements in his own behalf.

10.  Consistent with the chain of command's recommendations, the separation authority approved the applicant's discharge.  His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, paragraph 5-17, by reason of “condition, not a disability” on 7 September 2011.  His character of service is shown as honorable and he was credited with completing 1 year,
8 months, and 3 days of active service.

11.  Subsequent to his military service, the applicant filed a disability claim with the VA for service-connected compensation.  He was granted 20-percent service connection for lumbar strain effective 24 April 2013.  His claims for left hip and right hip displacement were denied.

12.  Army Regulation 635-200, 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.

13.  Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability.  The U.S. Army Physical Disability Agency, under the operational control of the Commander, U.S. Army Human Resources Command (HRC), is responsible for administering the PDES and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).


	a.  The objectives of the system are to:

* maintain an effective and fit military organization with maximum use of available manpower
* provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability
* provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected

	b.  Soldiers are referred to the PDES:

* when they no longer meet medical retention standards in accordance with Army Regulation 40-501, chapter 3, as evidenced in a medical evaluation board
* receive a permanent medical profile, P3 or P4, and are referred by an MOS Medical Retention Board
* are command-referred for a fitness-for-duty medical examination
* are referred by the Commander, HRC

	c.  The PDES assessment process involves two distinct stages:  the medical evaluation board (MEB) and the physical evaluation board (PEB).  The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service.  A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty.  A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition.  Service members who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired, depending on the severity of the disability and length of military service.  Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retirement payments and have access to all other benefits afforded to military retirees.

	d.  The mere presence of medical impairment does not in and of itself justify a finding of unfitness.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his/her office, grade, rank, or rating.  Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty.  A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating.

14.  Army Regulation 635-40 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/her office, grade, rank, or rating.  Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.

15.  Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement).  Once a determination of physical unfitness is made, the PEB rates all disabilities using the VA Schedule for Rating Disabilities (VASRD).

16.  The VASRD is used by the Army and the VA as part of the process of adjudicating disability claims.  It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service.  This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation.

17.  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 VA does not have the 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.  These two government agencies operate under different policies.  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 request for correction of his DD Form 214 to show he was medically discharged for disability instead of by reason of a "condition, not a disability" due to receipt of a service connected disability rating from the VA was carefully considered.

2.  The evidence of record shows the applicant was diagnosed with adjustment disorder and properly discharged in accordance with Army regulatory guidance for a condition, not a disability.  His administrative discharge was accomplished in compliance with applicable regulations without procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

3.  Although the applicant provided a VA Rating Decision of 20-percent service connection for lumbar strain, the Army and the VA disability evaluation systems are independent of one another.  A diagnosis of a medical condition and/or a subsequent award of a rating by another agency does not establish an error by the Army.  Operating under different laws and policies, the VA does not have the authority or the responsibility to determine medical unfitness for military service.  The VA may award ratings because a medical condition is related to service (service connected) and affects the individual's civilian employability.  The VA has the responsibility and jurisdiction to recognize any changes in a condition over time by adjusting a disability rating.

4.  There is no evidence showing he had a permanent physical profile, a diagnosis of a disabling condition that rendered him unable to perform the duties required of his MOS or grade, or a medical evaluation that warranted his entry into the PDES.  Referral into the Army PDES requires a designation of "unfit for duty" before an individual can be separated from the military because of an injury or medical condition.  At the time of the applicant's discharge, there was no evidence of an unfitting condition that would have warranted entry into the PDES.

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 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)                                         AR20150000419





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ABCMR Record of Proceedings (cont)                                         AR20150000419



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