MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           27 October 1999
	DOCKET NUMBER:   AR1999016813

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	Mr. W. W. Osborn, Jr.		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. George D. Paxson		Member	
	Ms. Kathleen A. Newman		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                       records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  Reconsideration of discharge case by awarding her physical disability separation retirement.

APPLICANT STATES:   In effect, that she receives service-connected disability benefits from the VA for post traumatic stress (PTSD ) and was, in fact,  incapable of performing duty or any useful work because PTSD since 1981.  This PTSD is result of homosexual harassment by her commanding officer.  Her problems started in November 1981 and she has not been able to function normally since. She also contends, in effect,  that she should be allowed to collect damages and that debts to the post exchange should be excused because she lost income as a result of this harassment.  She submits medical documents from the VA and civilian sources to demonstrate that she is disabled.  

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memoranda of proceedings prepared to reflect the Board's corrective action on her on 17 June 1998 (COPY ATTACHED).

The applicant’s contention constitutes a new argument that requires Board consideration.   

The applicant’s supporting documents include:
 
A 9 December 1998 letter from a medical doctor to the effect that her post-military adjustment problems are the result of PTSD and that she is unemployable.

An 8 December 1998 letter from a director of counseling services opines that the sexual abuse in the army, as described by the applicant, has and is causing bouts of depression, a negative sense of self  and inability to pursue meaningful relationships.

an 8 December 1998 letter from a director of counseling repeats this basic  opinion but goes on to report “a pattern probably caused by exaggeration of symptoms due to a cry for help or possible malingering.”

Another 8 December 1998 letter from the same mental health professional that states that the stress of the events in her military career created her current situation that requires on-going treatment.

A 22 October VA Compensation and Pension (C&P) examination notes that the applicant divorced in 1989 after eight years of marriage.  This exam produced a diagnosis of dysthymic disorder (chronic long term low grade depression ) and an adjustment disorder with mixed emotional features of anxiety and depression.  Features of PTSD are noted but the applicant did not meet the diagnostic criteria of PTSD.

A 27 October psychiatric C&P work-up produced diagnosis of PTSD and dysthymic disorder.

The VA granted disability at 50 percent for PTSD from December 1995 which was increased to 70 percent in January 1998.

Letter from a sister and three friends report that the applicant was changed by her military experience whereas she had been happy, self-confident and outgoing she came home reclusive, avoidant, and distrustful. 

The Office of The Surgeon General, in a comment (COPY ATTACHED) to this Board, opined that the applicant was medically fit for retention at the time of separation and recommended that the records not be corrected on a medical basis.

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.

Army Regulation 40-501, paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.

Army Regulation 635-40, paragraph 2-2b, as amended, provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his 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.

Title 38, United States Code, sections 310 and 331, permits 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 medically 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.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The applicant was performing duty at the time she was separated and could not have been found unfit.  She has argued earlier that there was absolutely nothing wrong with her duty performance, that any accusations of inefficiency were reprisals for her rejection of the commander’s homosexual advances.

2.  There is no evidence that, at the time of the discharge,  the applicant was in any way disabled. 

3.  The fact that the VA, in its discretion, has awarded the applicant a disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish physical unfitness for Department of the Army purposes.

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__mkp___  ___gdp_  __kan____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999016813	
SUFFIX		
RECON		
DATE BOARDED	19991027	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	108.04	
2.		
3.		
4.		
5.		
6.