IN THE CASE OF: BOARD DATE: 12 January 2016 DOCKET NUMBER: AR20150005990 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, in effect, a medical discharge for multiple sclerosis and depression. 2. The applicant states she received a service-connected disability rating after she was released from military service. 3. The applicant provides copies of the following: * Emergency Department Discharge Instructions from the Texas Health Presbyterian Hospital * A letter, from The Center for Neurology and Neurophysiology * six Department of Veterans Affairs (VA) Problem Lists * eighteen VA Progress Notes * five VA Radiology Reports * Lab Corps results * two VA Lab Results CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code (USC), 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 the cases 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. 2. The applicant's records contain a DD Form 2808 (Report of Medical Examination), dated 18 July 2008, showing she underwent this examination for the purpose of enlistment. She was found qualified for enlistment in the service. 3. She enlisted in the U.S. Army Reserve (USAR), in pay grade E-1, on 18 July 2008. 4. A DA Form 2173 dated 1 November 2008, shows she was seen as an outpatient at the Consolidated Troop Medical Clinic, Fort Leonard Wood, MO, for physical therapy when she complained of bilateral leg pain which had developed over the past week. This form stated that she had not received an injury due to any specific training event or activity; she received the injury during normal training activities. 5. Orders Number 09-022-00005, issued by Headquarters, 63rd Regional Readiness Command on 22 January 2009, discharged her from the USAR effective 22 February 2009, under the provisions of Army Regulation 135-178 (Army National Guard (ARNG) and USAR Enlisted Administrative Separations) with a general discharge. 6. She provided copies of the following: a. Emergency Department Discharge Instructions from the Texas Health Presbyterian Hospital dated 25 July 2011, showing she was diagnosed with neuropathy and was referred to a neurologist for further care. b. A letter from the Center for Neurology and Neurophysiology dated 12 August 2011, showing a neurologist stated the applicant was under her care for lumbar radiculitis and carpal tunnel syndrome. c. Six VA Problem Lists, dated between 31 March 2011 and 10 April 2014, showing she was seen at a clinic for muscle sprain, pain in joint involving ankle and foot, fibromyalgia, generalized anxiety disorder, eczema, hemorrhoids, social phobia, dizziness and giddiness, a migraine, counseling for marital and partner problems, an allergy, and multiple sclerosis. d. Eighteen VA Progress Notes, dated between 18 June 2014 and 20 March 2015, showing she received treatment for: * relapsing and remitting multiple sclerosis (diagnosed in 2013 and she had been under non-VA neurologist care) * depressive disorder * tobacco use disorder * adjustment disorder with mixed anxiety and depression mood (diagnosed and rated 100 percent (%) by the VA) * partner relational problems * pregnancy (due in June 2015) e. Five VA Radiology Reports, dated between 11 July 2011 and 8 January 2014, showing she underwent a magnetic resonance imaging of the lumbar spine, brain, and cervical spine to due to suspected or established multiple sclerosis. f. A Lab Corp record, dated 17 October 2011. g. Two VA Lab Results, dated between 16 June and 22 September 2014. 7. Army Regulation 135-178, in effect at the time, provided for the orderly administrative separation of ARNG and USAR enlisted Soldiers. The regulation provided for the involuntary separation from the USAR for a variety of reasons. Paragraph 6-7(e) specified that when a commander determined that a Soldier could have a medical condition that interfered with the Soldier’s performance of duty and contemplates initiation of separation, the commander would refer the Soldier for a medical evaluation. 8. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, governed the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. The unfitness was grade, rank or rating in such a way as to reasonably fulfill the purposes of such a degree that a Soldier was unable to perform the duties of his office, of his employment on active duty. The regulation stated in the mere presences of an impairment did not, of itself, justify a finding of unfitness because of physical disability. 9. Title 38, U.S. Code, sections 1110 and 1131, 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 AND CONCLUSIONS: 1. The applicant enlisted and served in the USAR from 18 July 2008 to 22 February 2009 until she was discharged. In 2013, the VA diagnosed her with multiple sclerosis and she received treatment from the VA. The VA also diagnosed her with an adjustment disorder with mixed anxiety and depressed mood; she was awarded a 100% service-connected disability rating. 2. There is no evidence of record and she did not provide sufficient evidence showing she had any medically unfitting disabilities during her USAR service which required physical disability processing. 3. There is also no evidence to show or suggest where the Army was in error regarding her USAR discharge. The documentation showing she received a disability rating from the VA does not support that she had any specific unfitting medical conditions at the time of her 2009 discharge. 4. Absent evidence to the contrary, it is presumed that all requirements of law and regulations were met and her rights were fully protected throughout her 2009 separation process from the USAR. 5. The fact that she was awarded a VA disability rating is not sufficient evidence to conclude that she should have been medically discharged. The VA is not required by law to determine medical unfitness for further military service. The VA 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, the applicant's medical condition of multiple sclerosis and depression, although not considered medically unfitting for military service at the time of processing for discharge, may be sufficient to qualify her for VA benefits based on an evaluation by that agency. 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) AR20150005990 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005990 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1