MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:  15 March 2001
	DOCKET NUMBER:  AR2000047060

	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. Carl W. S. Chun		Director	
	Ms. Joyce A. Wright		Analyst	

  The following members, a quorum, were present:

	Mr. Ernest M. Willcher		Chairperson	
	Mr. Thomas E. O’Shaughnessy		Member	
	Mr. Richard T. Dunbar		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:  In effect, that her narrative reason for separation which shows “Parenthood of married service woman” be changed to show “Physical Disability Retirement”.

APPLICANT STATES:  That her discharge erroneously reflects her reason for separation as family hardship.  She also states that the true reason was due to the traumatic experience of her rape that she suffered while on active duty.  She further states that it has been 9 years since treatment began, that she has filed a disability claim, and that she has been in denial.

EVIDENCE OF RECORD:  The applicant's military records show she enlisted on 5 March 1986 as a multichannel communications systems operator.

On 17 May 1989, the battalion chaplain prepared a statement regarding the applicant’s request for separation under the provisions of Army Regulation 
635-200, chapter 6.  The chaplain stated that the applicant was married to another service member who was stationed at Fort Benning, Georgia, and that the applicant had two prior miscarriages with stress as the possible cause.  He also stated that one of the applicant’s children was residing with her and another with her paternal grandmother.  He further stated that the applicant felt she had neglected her child in the performance of her military obligation, was under great stress because of the situation, and recommended favorable action for the applicant’s request.

On 18 May 1989, the applicant prepared a statement in regards to her request for separation.  She stated that she had two children and was married to another service member stationed at Fort Benning, Georgia.  She also stated that upon her arrival to the unit, she thought she could handle the pressure with her kids;
however, she could not handle the dual role of parent/soldier.  She later 
discovered that she was pregnant, but had a miscarriage.  She later became pregnant again, however, another miscarriage followed.  She felt that both miscarriages were due to stress, that her job performance was deteriorating and that her family was constantly on her mind.  She concluded by stating that separation would be in her best interest.  The applicant underwent a separation medical examination on 18 April 1989 and was found qualified for separation with a 111121 physical profile.

An undated statement was prepared by the applicant’s platoon sergeant in regards to her request for a separation.  Her platoon sergeant stated that she was unable to perform her duties as a mother and soldier due to her spouse’s assignment at Fort Benning, Georgia.  He also stated that she was unable to care for her children here at Fort Hood, Texas and, due to the daily demands of her job, and worrying about the care of her children, her job performance deteriorated significantly.  He further stated that she had two miscarriages within the past 6 months and that he strongly recommended that she be discharged.
On 18 May 1989, the applicant’s First Sergeant prepared a statement in regards to the applicant’s request for separation under chapter 6.  The First Sergeant stated that he had spoken to the applicant on several occasions regarding a chapter 6, so that she could be reunited with her spouse at Fort Benning, Georgia.  He also stated that the applicant was unable to devote much of her time to her family due to mission requirements.  He further stated that because of the stress incurred by her separation from her spouse, she had two miscarriages. He goes on to state that the applicant was a very conscientious soldier and that being away from her family caused stress and deteriorated her job performance; therefore, she was requesting separation.  He concluded by stating that granting the applicant’s request for a separation would be in the best interest of the soldier and the Army.

On 19 May 1989, the applicant’s supervisor prepared a statement in regards to the applicant’s request.  The supervisor stated that he had counseled the applicant and had further reviewed her request for a discharge.  He also stated that the applicant’s request was extremely authentic and bonafide.  He further stated that the applicant was a good soldier, that her request deserves favorable consideration, and that she should be allowed to fulfill her obligation in the USAR. He concluded by stating that he recommends that her request be approved.

On 22 May 1989, the applicant’s commander prepared a statement in regards to her request.  He stated that it was imperative that the applicant’s request be given favorable consideration; that the applicant had a myriad of traumatic incidents during her tour in his command; and that she was married to another soldier who was assigned to Fort Benning, Georgia.  He also stated that the applicant and her spouse were unable to handle the dual role of soldier/parent due to their duties and responsibilities.  He further indicated that the applicant had two miscarriages within the last 6 months that had caused the applicant a tremendous amount of stress.  As a result of this stress, her performance had dissipated.  His command had attempted several means in order to assist the applicant with her problems.  A separation action was initiated during her pregnancy; but while processing this action, she had a miscarriage.  Under the provisions of chapter 8, Army Regulation 635-200, the applicant did not meet the 16-week criteria during her pregnancy for finalization of separation.  He goes on to state that he contacted the Total Army Personnel Command (PERSCOM), Enlisted Personnel, Signal Branch.  The Branch Manager indicated that it was possible to put both the applicant and her spouse on levy with assignments to the same installation.  However, this action never happened because the applicant’s spouse’s military occupational specialty (MOS) of 11B was overstrength at Fort Hood, Texas, and there were no slots available for the applicant’s MOS of 31M at Fort Benning, Georgia.  The commander concludes by stating that the applicant needed to put her family together and that he highly recommended that her request for separation be approved.
On 25 May 1989, the applicant submitted a formal personnel actions request for separation under the provisions of Army Regulation 635-200, chapter 6, due to parenthood of a married service woman.  The reason for her request was that she was unable to handle the role of soldier and parent.

The applicant’s request was processed and approved by the appropriate authority on 8 June 1989 who directed issuance of an Honorable Discharge Certificate.  The applicant was discharged on 16 June 1989 under the provisions of Army Regulation 635-200, paragraph 6-3b(1) due to parenthood of married service woman.  She had a total of 3 years, 3 months, and 3 days of creditable service.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 6 of that regulation provides, in pertinent part, for the separation of personnel because of genuine dependency or hardship.  An 
application for such separation will be approved when a service member can substantiate that his/her situation or immediate family's situation has been aggravated to an excessive degree since enlistment, that the condition is not temporary, and that discharge will improve the situation.

Paragraph 6-3a, provides for the separation of dependency.  Dependency exists when death or disability of a member of a soldier’s (or spouse’s) immediate family causes that member to rely upon the soldier for principal care or support.  Paragraph 6-3b, provides for the separation due to hardship.  A hardship exists when, in circumstances not involving death or disability of a member of the soldier’s (or spouse’s) immediate family, separation from the service will
materially affect the care or support of the family by alleviating undue and genuine hardship.

Paragraph 6-3b(1), provides for the separation for parenthood of married service women.  An application for such separation will be approved when a service member can substantiate that her situation or immediate family’s situation has been aggravated to an excessive degree since enlistment, that the condition is not temporary, and that discharge will improve the situation.

The applicant provided a copy of her VA claim, dated 13 May 1999, which shows she was granted compensation for a service connection of Post-Traumatic Stress Disorder due to a personal assault.

In the processing of this case, a staff advisory opinion was obtained from the Department of the Army Review Boards Agency (DARBA) medical advisor.  The medical advisor indicated that the applicant requested a change in her discharge status to a physical disability retirement which was based on the applicant’s assertion that her unit’s actions and the discharge were actually due to the fact that she was raped while on active duty.  He also indicated that the applicant is receiving 50% disability from the DVA for Post-Traumatic Stress Disorder incident to her rape.  He further indicated that there are several psychological evaluations in the applicant’s records to support her diagnosis.  He also indicated that the military medical records show that the applicant was brought to the emergency room on 16 August 1986 secondary to an “alleged sexual assault”.  However, the note in the chart as to the incident is missing but there are follow-up notes to the incident.  The note of 21 August 1986 recommended a Social Work Services referral for counseling; however, there are no Mental Health/Social Work Services notations in the chart.  The remaining chart entries do not address the applicant’s complaint and that there is no evidence that a Medical Evaluation Board (MEB) was considered by treating physicians.  In conclusion the medical advisor stated that, from his review of the available records, it appears that, at the time, the incident did not impact on the soldier’s performance of duty.  It is the medical advisor’s considered opinion that there is currently not enough medical evidence in the record to warrant a change in the applicant’s discharge status.

The applicant was provided a copy of this opinion for possible comment prior to consideration of her case.  The applicant stated that she would like to address the issue concerning the missing notes which were written the night that she was taken to the emergency room due to the sexual assault.  She stated that she does not feel that she should be held accountable for the handling, or the lack thereof, of her medical records.  She had no access to her medical records during that time and would not have benefited from removing the notes concerning the incident from her records.  The advisory opinion also spoke of an alleged referral for Mental Health/Social Work Services.  She also stated that she was never informed about the referral by the treating physician, nor her chain of command, and had she been informed about such a referral she would have followed up on the referral.  The advisory opinion states that there is no evidence that the incident affected her job performance, however; further review does not state such a traumatic experience did not affect her job performance, as far as she can tell it was never corroborated either way.  The advisory opinion also spoke of the alleged referral which has no notes annotated in the chart but, had she disregarded the referral or missed the appointment for Mental Health/Social Work Services, she is compelled to believe that it would have been annotated in the records as such. Therefore, she feels the error of the alleged referral should be in her favor.  The advisory opinion states that there is no evidence of the treating physician considering her for an MEB.  The treating physician would have had to receive an evaluation from the Mental Health/Social Work Services before considering her for an MEB unless he was a qualified psychologist/psychiatrist.  Without any notes in the Mental Health/Social Work Services chart how can the Board be sure of what the treating physician would have considered for her.  At the time the incident took place, she was new to the Army and still learning the rules and regulations that governs the Army.  This incident was a very traumatic experience for her and it affected her more than anyone will ever know, and unless you have gone through something like this, you cannot understand what it feels like to have your peers ridicule you everyday and have soldiers that you work with scared to talk to you.  The worst part for her was facing the guy who did this to her at the court-martial and having to prove that she was telling the truth.  Then to receive an advisory opinion that states there is not enough medical evidence to warrant a change in her discharge only means that she has to prove herself again.  She is asking that the Board consider her application and grant her a disability retirement.

Title 38, United States Code, section 310 and 331, permits the VA to award
compensation for disabilities which were incurred in or aggravated by active service.

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/her
office, rank, grade, or rating because of a disability incurred while entitled to basic pay.

Army Regulation 40-501, at paragraph 4-3a, provides, in pertinent part, that performance of duty despite an impairment would be considered presumptive evidence of physical fitness. 

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

An award of a VA rating does not establish entitlement to medical retirement or 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.

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

1.  The evidence of record clearly shows that the applicant requested to be discharged under the provisions of Army Regulation 635-200, chapter 6, paragraph 6-3b(1) for parenthood of a married service woman.  This separation was administratively correct and in conformance with applicable regulations.  Accordingly, her DD Form 214 properly reflects the appropriate narrative reason for separation.

2. The Board notes that the applicant was cleared for separation with a 111121 physical profile.  The Board also notes that there is no evidence of record to show that the applicant appeared before an MEB and was found not medically qualified for retention.

3.  The applicant’s service records do not indicate any medical condition incurred while entitled to receive basic pay which was so severe as to render the applicant medically unfit for retention on active duty.  At the time of the applicant’s separation medical examination, competent medical authority determined that the applicant was then medically fit for retention or appropriate separation.  Accordingly, the applicant was separated from active duty for reasons other than physical disability.  There is no basis to change the applicant’s narrative reason for separation to “Physical Disability Retirement”.

4.  The rating action by the VA does not necessarily demonstrate any error or injustice on the part of the Army.  The VA, operating under its own policies and regulations, assigns disability rating as it sees fit.  Any rating action by the VA does not necessarily constitute an error or injustice on the part of the Department.

5.  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 this requirement.  

6.  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

__ew___  ___to__  ___rd__  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000047060	
SUFFIX		
RECON		
DATE BOARDED	20010315	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	19890616	
DISCHARGE AUTHORITY	AR 635-200, C, 6	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  177		
2.		
3.		
4.		
5.		
6.