IN THE CASE OF:  	  

		BOARD DATE:  3 September 2015	  

		DOCKET NUMBER:  AR20150002162 


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 military records by showing she was retired due to physical disability.

2.  The applicant states, in effect, that paragraph 4 of the Narrative Summary for her medical evaluation board (MEB) states there was no profile or associated duty limitations related to her diagnosis for Asperger’s syndrome.  She contends this indicates that her mental health records for 2006 through 2012 were not taken into consideration.  She argues that if her mental health records had been reviewed they would have shown she had more than an occasional decrease in her work efficiency with generally satisfactory functioning.

3.  The applicant provides copies of:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Department of Veterans Affairs (VA) letter, dated 14 July 2014
* A personal statement, dated 4 September 2014 (not received)
* Physical Evaluation Board (PEB) Proceedings, dated March 2014
* Seven DA Forms 2166-8 (Noncommissioned Officer Evaluation Report) for the rated periods from 1 June 2006 to 9 March 2013
* DA Form 1059 (Service School Academic Evaluation Report), dated         15 November 2010
* Service medical records dated between 2006 and 2014


CONSIDERATION OF EVIDENCE:

1.  On 6 July 2000, the applicant enlisted in the Regular Army.  She was trained as a motor transport operator.  She attained the rank of sergeant, pay grade E-5 on 1 June 2006.

2.  On 10 September 2013, the applicant appeared before an MEB.  She was diagnosed with the following conditions and recommended for evaluation by a PEB:

	a.  Right knee osteoarthritis (VA diagnosis: Chronic right patellofemoral syndrome) – Does not meet retention standards, was incurred while entitled to base pay and was permanently aggravated by military service.

	b.  “S/P Hysterectomy” for history of uterine fibroids – Meets retention standards.

	c.  Abdominal adhesions – Meets retention standards.

	d.  Healed hysterectomy scars – Meets retention standards.

	e.  Adjustment disorder with anxiety and depressed mood, chronic (VA diagnosis: Asperger’s syndrome) – Meets retention standards

	f.  History of plantar fasciitis (VA Diagnosis: Normal bilateral feet) – Meets retention standards

	g.  Right shoulder strain (No VA diagnosis) – Meets retention standards

3.  The narrative summary states in paragraph 4 that the applicant had reported recurrent episodes of depression since 2007 which were primarily related to work stressors.  She had been seen by mental health during each of her deployments to Kuwait and Afghanistan, as well as periodically in garrison.  As of her last comprehensive mental health evaluation on 11 January 2013, she met retention standards.  The examiner noted only an occasional decrease in her work efficiency with generally satisfactory functioning.

4.  The approving authority approved the MEB findings and recommendations. 

5.  On 3 October 2013, the applicant agreed with the MEB findings and recommendation.

6.  On 14 March 2014, an informal PEB convened.  It found the applicant was physically unfit due to right knee osteoarthritis.  The condition was rated at 
10 percent disabling.  All of the remaining conditions listed by the MEB were determined not to be unfitting.

7.  On 19 June 2014, the applicant was discharged from active duty due to physical disability.  She was authorized severance pay based on 13 years, 
11 months, and 14 days of creditable active service.

8.  In the processing of this case, an advisory opinion was obtained from the Agency Legal Advisor, U.S. Army Physical Disability Agency (USAPDA).  The opinion recommended denial of the applicant’s request in this case based on the following discussion:

	a.  The applicant’s MEB indicated that her behavioral health condition of adjustment disorder with anxiety and depressed mood, cdiagnosed by the VA as Asperger’s syndrome, met medical retention standards.  The MEB had access to her complete military medical records and her VA medical examination regarding her behavioral health condition.  The MEB found the applicant’s condition did not warrant any physical profile restrictions and she continued to meet medical retention standards.  On 3 October 2013, the applicant concurred with the MEB findings and did not submit an appeal or rebuttal.

	b.  The PEB found the applicant fit for her mental health condition based on the MEB findings, the narrative summary, no profile, and the fact that her condition had been present for many years without significantly affecting her ability to perform her assigned duties.  On 20 March 2014, the applicant concurred with the PEB findings and waived her right to a formal hearing.  At that time, she already knew the VA had rated her behavioral health condition at 
30 percent disabling in accordance with the Department of Defense Integrated Disability Evaluation System.

	c.  The MEB and PEB findings in regard to the applicant’s behavioral health were supported by the evidence in her disability case file.  That evidence was sufficient to make the appropriate findings in relation to her condition in 2013 and 2014.  Even if the MEB/PEB did not have all of the documents relating to her behavioral health condition since 2006, it would not have made any difference in the final determination.

	d.  The applicant’s disability findings were supported by a preponderance of the evidence, were not arbitrary or capricious, and were not in violation of any statute, regulation, or directive.

9.  The applicant was provided a copy of the advisory opinion for review and comment.  She did not respond within the time allotted.

10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army 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.

	a.  It provides for MEB's, 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 chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness).  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

	b.  It states the NARSUM to the MEB is the heart of the disability evaluation system.  In describing a Soldier's conditions, a medical diagnosis alone is not sufficient to establish that the Soldier is unfit for further military service.  Soldiers who have been evaluated by an MEB will be given the opportunity to read and sign the MEB proceedings.  If the Soldier does not agree with any item in the medical board report or the NARSUM, he or she will be advised of appeal procedures.

	c.  It states there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying.  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.

	d.  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.

11.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has an impairment rated at less than 30 percent disabling.  It further provides in section 1201 for the physical disability retirement of a member who has an impairment rated at least 30 percent disabling.

12.  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 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.  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.

13.  A review of the applicant’s DA Form 2166-8 shows in 2006, when she was promoted to sergeant, her performance was marginal.  In 2007, 2008, 2009, and 2010 her performance improved to fully capable.  In 2011, 2012, and 2013 her performance was again only marginal.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her military records should be corrected to show she was retired due to physical disability, because all of her behavioral health documents for 2006 through 2012 were not considered by the MEB.   

2.  The evidence shows she agreed with the findings of the MEB and PEB.  She did not appeal or rebut any of the findings.  She was fully aware of the VA rating decision prior to her discharge from active duty.

3.  A review by the USAPDA determined that the MEB and PEB findings regarding the applicant’s behavioral health were supported by the evidence in her disability case file.  Furthermore, if the MEB/PEB did not have all documents relating to her behavioral health condition since 2006, it would not have made any difference in the final determination because the available evidence was sufficient to make the appropriate findings in relation to her condition in 2013 and 2014.

4.  The applicant’s disability findings were supported by a preponderance of the evidence, were not arbitrary or capricious, and were not in violation of any statute, regulation, or directive.

5.  An award of a VA rating does not establish entitlement to medical retirement or separation.  The VA does not determine 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 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 member may be medically retired or separated.

6.  The VA determined that she suffered from several other medical/behavioral health conditions which were not identified as unfitting at the time of her discharge from active duty.  The fact that the VA gave these conditions a rating and service connection does not mean the Army misdiagnosed any of her medical conditions.

7.  In view of the foregoing, 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)                                         AR20150002162



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ABCMR Record of Proceedings (cont)                                         AR20150002162



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