MEMORANDUM OF CONSIDERATION

		IN THE CASE OF:      

		BOARD DATE:           30 SEPTEMBER 2003                   
		DOCKET NUMBER:  AR2003083878

	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. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Mr. Raymond J. Wagner		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Ms. Margaret V. Thompson		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 records be corrected to reflect that she was retired under the TERA (Temporary Early Retirement Authority) because she was medically unfit for retention in the Army National Guard and had more than 16 years of qualifying service for retirement purposes.

APPLICANT STATES:  In effect, that following a series of harassment incidents by members of her chain of command in the Florida Army National Guard she was, unbeknownst to her, discharged and transferred to the United States Army Reserve Control Group (Reinforcement).  She states that the harassment commenced in October 1995 when all the male members of her section were called to active duty in support of Hurricane Opal.  She notes that she was not notified of the call to active duty order and when she found out and reported for duty she was not permitted to sign in; being told by her chain of command that she was too late.  Following that incident she states that she attempted to find out why white male soldiers were being permitted to sign in while she, a black female, was not permitted.  She states that she was verbally assaulted by her first sergeant which she states she found “sexually insulting.”  Ultimately she left the unit, wrote to the President, and was contacted by the Inspector General at the National Guard Headquarters in Washington and a formal investigation was initiated.  She states that a “compromise settlement was proposed” and she signed the settlement with the verbal understanding that the harassment would cease and certain members of her chain of command would be transfered, reassigned or retired.

She states that in June 1997 she was issued a counseling statement because someone found a “round” in her gas mask.  She argued that she had not seen the gas mask since the previous November but when her section leader was pressured by the first sergeant she received the counseling statement.  She contends this was further evidence of a pattern of harassment.

She notes it was during this period that her health began to fail and she was “given doctor orders restricting [her] physical activities.”  She states that her commander “used this situation to try to force [her] out of the guard.”  She notes that she was referred for a medical evaluation and placed on a temporary profile. 

In August 1998, after a “continuous series of renewals of the original profile” she states she was ordered to complete a series of tests “to determine fitness for duty”.  She states that two out of three tests “were successfully completed….”  However, she states that the “psychological examination was not completed because the psychologist felt ‘ethically bound’ not to complete a test that [she] did not want.”  

The applicant states that she later received a letter transferring her to the “inactive Army Reserve.”  She states that she filed letters of protest with the Florida Army National Guard and with the Army Board for Correction of Military Records.  She notes that in September 2001 she found out that she “had been administratively discharged as of November 1998.”

The applicant contends that she was not given due process, informed of her rights to a fair and impartial hearing, and maintains that her discharge is “a clear and flagrant injustice.”  

In support of her request she submits copies of her temporary profiles, a copy of a May 1998 counseling statement, statements rendered by the psychiatrist who elected not to render a mental status evaluation, and a copy of her request for retirement under the TERA.

EVIDENCE OF RECORD:  The applicant's military records show:

She initially entered military service as an enlisted member of the United States Army Reserve in September 1974.  She served on active duty as an enlisted soldier between October 1974 and March 1978.  She served on active duty as an Air Force second lieutenant between October 1982 and March 1985 but was discharged when she failed to be promoted to first lieutenant.

In July 1988 the applicant enlisted in the Florida Army National Guard.  She was assigned to a transportation company as a food service specialist and served on active duty for approximately 4 months during Operation Desert Storm, but was not deployed to the theater of operations.

In May 1991 she was promoted to pay grade E-5.

The performance evaluations, which were available to the Board, indicate the applicant was consistently rated as a “successful” soldier and rated in the second or third blocks by her senior raters for overall performance and potential.  With two exceptions, the reports note that she passed her annual physical fitness test. 

Her records contain a report of “flagging” action (suspension of favorable personnel action), which was initiated in December 1995 after she failed a physical fitness test and a November 1996 performance evaluation report notes she failed the physical fitness test in November 1996.  Neither the flagging action, nor the evaluation reports, mentions that she had any sort of physical profile at the time.

In May 1997 the applicant underwent a physical examination under a program which required soldiers over the age of 40 to undergo a physical.  Although the applicant indicated on her report or medical history that she was having trouble sleeping, was nervous, had some memory loss or amnesia and was experiencing depression or excessive worry, among other ailments, she did state that overall her health was good.
The examining physician noted the applicant had some left lower quadrant pain, that she was unable able to exercise due to tiredness, palpitations and occasional CP (chest pain), and that she may have been suffering from depression because of family stressors.  He noted that she was not qualified for retention but recommended a cardiac evaluation, a psychiatric evaluation, and continued evaluation of her abdominal pain.

Service medical records, which were available to the Board, do not reflect follow-up evaluations after the May 1997 examination.

However, in July 1997 the applicant was issued a temporary physical profile which precluded “military functions till eval[uation] done….”  The condition warranting the profile was recorded as “dyspnea on exertion-chest pain.”

A 7 November 1997 memorandum in the applicant’s file from the Director, Military Personnel, Florida Army National Guard, to the applicant’s commander noted that the applicant had been directed “by the State Surgeon’s Medical Review (SSMR), 23 July 1997 to obtain medical evaluations and provide them for determination of fitness for retainability.”  The memorandum indicated, “she did not comply with the directives.”  It went on to note that a determination was made to permit the applicant’s profile to be extended until January 1998 to allow her “additional time to comply with their directive.”  It also noted that if she failed to comply she could be subject to discharge from the Army National Guard.

On 17 December 1997 the applicant was informed that her request to be retired under the TERA could not be finalized because the “State Surgeon currently does not have sufficient information to determine your fitness for continued service.”  She was urged to “complete the scheduled physical examination at Fort Rucker on 6 January 1998 so that the State Surgeon can make a final determination.”  The memorandum concluded by telling the applicant that if she were found unfit for further military service she would be issued a letter of eligibility for retired pay at age 60 and assigned to the Retired Reserve.

On 6 January 1998 the applicant underwent a physical examination to determine her medical fitness for retention.  The applicant indicated on her report of medical history that she was in poor health.  She again noted that she suffered from depression or excess worry, and nervousness.  However, in this report of her medical history she did not indicate that she was having trouble sleeping or loss of memory or amnesia.

The evaluating physician noted the applicant reported frequent upper respiratory infections, abdominal pain, anxiety, tension and depression among her ailments. He noted there was no current psychiatric evaluation and his recommendations included a repeat CBC (complete blood count), a gynecological pelvic examination, and a psychiatric evaluation.  He cleared her for a Medical Evaluation Board (MEB).

The applicant’s records contain copies of medical referral documents referring the applicant to the gynecological clinic for evaluation and to the mental health center for an evaluation to determine if “patient qualified for WWD [world wide deployment], retention.”

In accordance with one of the referrals, the applicant underwent an evaluation for pelvic pain on 5 February 1998.  The evaluation noted the applicant had reported lower left quadrant pain on and off since 1983, that the external pelvic exam was within normal limits, and that the internal exam revealed no masses but was “very tender at palpation on L [left].”  The examining physician noted that without a full pelvic pain work up it was very difficult to say if “pathology exists or not.”  However, he did note, based on the applicant’s statement and pelvic exam, that it was “doubtful that she can do PT [physical training].”

On 3 February 1998 the applicant’s physical profile was extended until 4 May 1998 “to safeguard” the applicant’s “health until a final determination can be made on your MEB.”  The applicant’s profile ultimately ended up being extended several more times, with the last available profile terminating on 22 October 1998.

In a 3 April 1998 letter to the “Defense Hot line,” the applicant complained of “possible improper use of psychological testing.”  She stated that in January 1998 she was “ordered to undergo another set of medical evaluation” and that  “after all these evaluations came back in [her] favor, the command ordered [her] to undergo one final test – a psychological exam.”  She stated that she “did not understand what psychological exam could do as far [as] helping obtain early retirement.”  She stated that when she told the examining clinical psychologist about her concerns he commented that he “was ethically bound not to give me the exam.”  The letter was provided by the applicant in support of her application to this Board.  Her record and her application did not contain evidence of the results of her letter to the hot line.

However, a 14 April 1998 memorandum from the “licensed psychologist” at the mental health center at Fort Rucker noted that the applicant had been referred to his clinic by the “Aviation Medicine Clinic at Lyster Army Hospital to determine if there were psychiatric conditions that would prevent [the applicant’s] retention in military service.”  He ultimately noted that applicant believed that the evaluation “was an effort by her command to retaliate for previous charges she had made against the command” and that she “had been informed that the results of this evaluation would be used in ‘Medical Evaluation Board’ proceedings.”  He stated that the applicant “apparently did not fully understand that if found unqualified for worldwide deployment, she could be separated from the military without being “medically disabled” and entitled to monetary compensation.”  He indicated that he attempted to obtain clarification for the applicant but was not successful and that he “attempted to explain the possible ramifications of the evaluation—she could be found medically unfit for further retention in the military.”  He states that the applicant was extremely anxious and confused during the “course of events” and that he believed that if he proceeded with the evaluation that it was his “opinion that any information obtained about her mental status during this evaluation could easily be attributable to her reaction to the evaluation per se and not represent her true mental health status.”  He recommended that if the command wished to have the applicant evaluated in the future she should be “command referred” in accordance with appropriate Department of Defense Directives.

In a 6 May 1998 response from the Florida Office of the Adjutant General to the applicant’s congressional representative, it was noted that the applicant was seeking early retirement and had alleged a pattern of harassment by supervisors “as well as improper referral for psychiatric evaluation.”  The letter was provided by the applicant as part of her application to the Board.  It did not, however, contain a signature page.  The part of the letter that was provided noted that the applicant’s allegations of harassment had been reviewed and “no credible substantiating evidence” was found.  The letter stated that “these findings are born out by prior Presidential/Congressional Inquiries, Equal Opportunity Investigations, a Florida National Guard Inspector General Investigation and a Commander’s Formal Inquiry.  In each investigation, findings of sexual harassment, continued harassment and racial discrimination were not substantiated.”

Regarding her medical circumstances, the letter stated that the applicant had two physical examinations indicating that “she may not be suited for continued military service.”  It noted that “medical authorities – not her unit chain of command” recommended psychiatric evaluation.  The letter stated that the applicant’s medical problems were not military related and as such she would not be entitled to disability pay or benefits.  However, because she had more than 16 years of service for retirement purposes, if she were found “not fit for retainability because of medical problems” she would qualify for reserve retirement at age 60 under the TERA.  It also noted that if she were found medically qualified for military service, she would be “free to continue her duty with the Florida National Guard.”

On 20 May 1998 the applicant was counseled regarding her requirement to undergo “three (3) different types of medical evaluation” as a result of comments she made during her May 1997 medical examination.  The counseling statement noted that the applicant had completed only two of the three required evaluations and emphasized that the psychiatric evaluation was directed by a doctor and not by her command.  The counseling document informed the applicant about the difference between a “medical discharge with medical compensation” and being found medically unfit for retention resulting in a transfer to the Retired Reserve with entitlement to retired pay at age 60.  The statement indicated that another appointment for the psychiatric evaluation would be scheduled.  The applicant acknowledged the counseling statement and made no comments.

On 29 May 1998 the “licensed psychologist” at the mental health center at Fort Rucker rendered a second statement noting that he had met with the applicant again.  He noted that “while attempting to obtain informed consent” the applicant again raised issues about appropriateness of the evaluation, including “under whose authority the evaluation was ordered.”  He stated that after “approximately an hour of discussing issues related to informed consent” the applicant stated that she would undergo the evaluation but wanted to add her own statement to the consent document.  The statement she wished to add indicated that she was “taking this test to complete my medical evaluation process.  I was made to take this evaluation or be discharged immediately.”  She also included a statement that her commander had told her “if I did not take this test I’d be kicked out.”  He noted that in his opinion, the statement indicated that the applicant “was not freely consenting to the evaluation process” and that “to proceed would have been unethical.”

On 5 June 1998 the Physical Evaluation Board Liaison Officer returned the psychologist’s letter and the applicant’s health records to the applicant’s commander “for appropriate disposition by the FL [Florida] ARNG [Army National Guard].”  Because the documents were returned to the applicant’s commander, there was no finding of fitness or unfitness for retention purposes.

A July 1998 CT (computerized tomographic) scan of the applicant’s chest showed “borderline C/T ration, possible due only to compression of the heart in the short space between the spine and sternum” and a “nodule in the lateral segment of the middle lobe appears to be present, and is of questionable of significance.  A follow-up study after about eight weeks is recommended to see if any change is occurring.  At that time, a routine radiographic examination of the chest may suffice.”

On 20 August 1998 the applicant’s commander was advised by the FL ARNG Director of Military Personnel to initiate separation action on the applicant under the provisions of National Guard Regulation 600-200, paragraph 8-27j, because she “failed to obtain the physical evaluations required to establish her fitness for duty within the prescribed time period….”

The applicant provided a copy of a 25 August 1998 notification of separation action with her application to the Board.  She indicated in her application that she received the document after being separated.  A copy of the document is not contained in records which were available to the Board.  The notification indicates that action was being initiated to separate the applicant from the Florida Army National Guard for non-completion of a physical required to establish fitness for duty.

On 1 November 1998 the applicant was honorably discharged from the Army National Guard and transferred to the United States Army Reserve Control Group, Reinforcement.

In March 1999 the applicant submitted an application to the Army Board for Correction of Military Records requesting assistance in having her discharge from the Army National Guard corrected to show she was discharged because of medical reason and transferred to the Retired Reserve.  Her application was closed administratively when she was advised to appeal her discharge via the Adjutant General of her State Army National Guard.  Included with the applicant’s application to this Board was a copy of a 2003 letter informing the applicant that the Florida Army National Guard Inspector General Office considered her case closed and planned no further action.

On 27 July 1999 the applicant was honorably discharged from the United States Army Reserve upon completion of her 1993 6-year service extension contract.

Army National Guard Regulation 600-200, paragraph 89-27j, provides for the separation of soldiers who fail to obtain required physical examinations.

Army Regulation 635-40 establishes the policies and provision for the separation of soldiers because of disability.  It notes that the mere presence of an 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 soldier reasonably may be expected to perform because of his or her office, grade, rank of rating.  It states that to ensure all soldiers are physically qualified to perform their duties in a reasonable manner, medical retention standards have been established in Army Regulation 40-501.

Title 10, United States Code provides for disability processing of Reserve Component soldiers who incur or aggravate an injury or disease in the line of duty while performing inactive or active duty for training.  

Army Regulation 635-40 states that in order for soldiers of the Reserve Components to be compensated for disabilities incurred while performing duty for 30 days or less, there must be a determination by a Physical Evaluation Board that the unfitting condition was the proximate result of performing duty.

Army Regulation 635-40 states, in effect, that Reserve Component soldiers will be separated from the Reserve when they no longer meet medical retention standards.  Such separation will be without benefits if the unfitting condition was not incurred or aggravated as the proximate result of performing annual training, active duty special work, active duty for training, or inactive duty training.

The National Defense Authorization Act for Fiscal Year 1995 (Public Law 103-337) amended Title 10, United States Code, section 1331a (now codified under section 12731a).  The modification allows Reserve component soldiers who are involuntarily separated between 5 October 1994 and 30 September 1999 because of medical unfitness to elect transfer to the Retired Reserve for Reserve retirement pay at age 60 based on a minimum of 15 years of qualifying service toward Reserve component retirement.

Army Regulation 40-501 states an individual with a mood disorder, anxiety, somatoform, or dissociative disorders may be referred for disability processing with persistence or recurrence of symptoms sufficient to require extended or recurrent hospitalization, or persistence or recurrence of symptoms necessitating limitations of duty or duty in protected environments; or persistence or recurrence of symptoms resulting in interference with effective military performance.

Army Regulation 40-501 states that personality and adjustment disorders may render an individual administratively unfit rather than unfit because of physical disability.  Interference with performance of effective duty in association with these conditions will be dealt with through appropriate administrative channels.  It also states that transient, situational maladjustment due to acute or special stress do not render an individual unfit because of physical disability, but rather may be the basis for administrative separation if recurrent and causing interference with military duty.

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 Board notes, based on the applicant’s statements in her application, and in documents she provided to the Board, that there are apparently three issues, which she believes, warrant actions or corrections by this Board.  Those issues appear to be her complaints of harassment, her contention that she should have been medically retired or separated and as such entitled to either an immediate disability annuity or disability severance pay, and/or her contention that she was medically unfit for continued military service and as such, should have been discharged and transferred to the Retired Reserve with entitlement to retired pay at age 60 under the TERA.

2.  The applicant’s contention that she was subjected to harassment, which ultimately resulted in her referral for a psychiatric evaluation and separation from the Army National Guard is not supported by any of the evidence available to the Board, or provided by the applicant.  The Board notes that in May 1998 the Florida State Adjutant General indicated in a response to the applicant’s congressional representative that there was no credible substantiating evidence found that the applicant had been harassed.  That letter indicates that “these findings are born out by prior Presidential/Congressional Inquiries, Equal Opportunity Investigations, a Florida National Guard Inspector General Investigation.”  The applicant has provided no evidence which refutes the May 1998 information in the letter to her congressional representative.

3.  Although not specifically mentioned in any of the documents provided to the Board by the applicant, the information which was provided tends to indicate that the applicant may have been seeking to be retired or separated from the Army National Guard by reason of physical disability.  The comments contained in the memorandums from the psychiatrist, information in the May 1998 congressional response, and information contained in the May 1998 counseling document, regarding disability separation and compensation support this conclusion.

4.  The Board finds no evidence that any of the applicant’s medical conditions were determined to be incurred or aggravated as the proximate result of performing annual training, active duty special work, active duty for training, or inactive duty training.  As such, there is no basis for disability retirement or separation with entitlement to disability compensation under the provisions of Army Regulation 635-40.

5.  The applicant’s final concern, that she be transferred to the Retired Reserve under the TERA, appears to be her primary point of contention.

6.  The evidence available to the Board confirms that the applicant underwent a physical examination in May 1997 during which she reported having trouble sleeping, nervousness, memory loss or amnesia, and was experiencing depression or excessive worry, in addition to her other medical ailments associated with exercise induced tiredness, palpitations and occasional chest pain, and her left lower quadrant pain.  

7.  As a result of the examination, the examining physician referred the applicant for a cardiac evaluation, a psychiatric evaluation, and continued evaluation of her abdominal pain.  There is no evidence, and the applicant has not provided any that the referrals were command influenced in any way, or that it was a form of harassment.  The Board notes that it was the applicant who volunteered the information during the examination.

8.  The evidence confirms the applicant was also subsequently issued a profile for the chest pain.  The Board concludes that had the examining physician believed that either her abdominal pain or her emotional state warranted a profile limiting certain physical activities, that a profile would have been issued for those two conditions as well.  The fact that a profile was not issued was not an indication that medical follow-up was not warranted.

9.  Although it is unclear from evidence available to the Board, at some point the applicant must have felt that she was no longer medically qualified for retention and as such submitted a request for separation under the TERA.  While she may not have fully comprehended the ramifications of the request, the evidence does suggest that she felt her medical conditions were such that remaining in the military was not appropriate.  Again, the Board notes it was the applicant who initiated the separation action and not the applicant’s chain of command.

10.  In order to determine if the applicant met retention standards a finding of unfitness was necessary.  The May 1997 examination identified three conditions which may have been unfitting; the applicant’s exercise induced chest pain, her abdominal pain, and her emotional status.  There is no indication in any of the medical examinations that either the exercise induced chest pain or the abdominal pain, in and of themselves rendered the applicant unfit.  The Board notes that the applicant herself indicated in the conversation with the psychiatrist, and in the application to this Board, that both the cardiac and abdominal examination were “successful.”  Such a statement supports a conclusion that even the applicant may not have felt those conditions were sufficiently disabling so as to warrant a determination of medical unfitness.

11.  In view of the foregoing, only one issue remained to be resolved in determining whether the applicant met medical retention standards; her emotional condition.  However, as evidenced in documentation provided to the Board, and in the applicant’s record, the fact that she never underwent a psychiatric examination, precluded a determination whether she was suffering from a condition (mood disorder, anxiety, somatoform, or dissociative disorders), which rendered her unfit, or if she was suffering from a personality or adjustment disorder which would have warranted separation via administrative procedures.  The Board could conclude that the applicant was concerned that she may have been found to have a personality or adjustment disorder rather than a medically unfitting disorder and as such, hoped to continue pursuing her medical separation action by avoiding the psychiatric evaluation which may have resulted in a administrative separation.  The applicant has not offered any credible evidence to support any other conclusion.

12.  The applicant’s contention that she was denied due process in her separation action is without foundation.  The Board notes that the applicant should have been well aware of the ramifications of her inaction to complete her required physical examination.  She could not reasonably expect to remain in an active status while she pursued her goal of being medically retired or separated.  The Board notes the applicant was a noncommissioned officer with more that 16 years of military service.  It is reasonable to conclude that she should have known that a discharge would be initiated when she failed to comply with military medical directive.  Her argument that she did not receive a copy of the proposed separation action until after she was separated does not serve as a basis to excuse her inaction.  

13.  The evidence confirms that the applicant failed to complete her physical examination as directed by appropriate medical officials; based on information volunteered by the applicant during her physical examinations.  Because of her failure to complete such an evaluation she was appropriately discharged from the Army National Guard and transferred to the United States Army Reserve where she remained until she was appropriately discharged upon the expiration of her service agreement.  The applicant has presented no convincing argument or evidence of any error or injustice in her separation.

14.  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 that requirement.

15.  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

__RJW__  __MHM__  __MVT__  DENY APPLICATION

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

INDEX

CASE ID	AR2003083878	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20030930	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	108.00	
2.		
3.		
4.		
5.		
6.