BOARD DATE: 26 September 2017 DOCKET NUMBER: AR20160000366 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING _____x___ ___x_____ ____x___ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 26 September 2017 DOCKET NUMBER: AR20160000366 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. BOARD DATE: 26 September 2017 DOCKET NUMBER: AR20160000366 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, correction of her records to show she received a medical retirement. 2. The applicant states: a. On 14 November 2008, she was discharged as a result of not having a Family Care Plan (FCP). b. She had just returned from deployment with the 426th Brigade Support Battalion when her unit informed her the easiest way to get out of the Army was to take an administrative separation. She has been having a hard time dealing with depression since she deployed. She was told it would be easier if she was no longer in the Army. c. She realized she was not being helped when she returned from Iraq and began working for the Warrior Transition Battalion. d. Her unit saw her as a problem because she was receiving treatment on a weekly basis. e. She should have been afforded the opportunity to go before a medical evaluation board (MEB) prior to being processed out of the Army. This would have allowed her to be treated by doctors who better understand her situation. f. The Department of Veterans Affairs (VA) initially awarded her a 40% (percent) disability rating, then a 90% rating, and now she has a 100% rating for mood and adjustment disorder. g. After speaking with the chain of command at the Warrior Transition Battalion, she was told she should appeal the decision because she was an MEB candidate, not a candidate for administrative separation for not having an FCP. 3. The applicant provides a letter from a Licensed Clinical Social Worker. CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, 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 this case 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 for timely filing. 2. The applicant enlisted in the Regular Army on 1 November 2000 and continued to serve on active duty through one reenlistment. 3. She received an annual Noncommissioned Officer Evaluation Report (NCOER) for the period May 2005 through April 2006 and her principal duties were those of a supply sergeant. She received ratings of "Fully Capable" (rater), "Successful/2" (senior rater), and Superior/1" (senior rater) with positive comments. 4. Initially, she was deployed to Iraq from 17 January to 17 September 2006. 5. She received an annual NCOER for the period 1 May 2006 through 30 April 2007 and her principal duties were those of a company supply sergeant. a. In Part IVc (Physical Fitness and Military Bearing), the rater marked "Needs Improvement (Some)," with the following comments: * Soldier failed to meet the height/weight requirement in accordance with Army Regulation 600-9 * Soldier is authorized 34% body fat * Soldier's actual body fat is 39% * Soldier is enrolled in the weight control program and making improvement b. In Part V (Overall Performance and Potential) - the rater marked "Fully Capable." * overall performance - the senior rater marked "Successful/2" * overall potential for promotion and/or service in positions of greater responsibility – the senior rater marked "Superior/1" with positive comments 6. She was also deployed to Iraq from 18 September 2007 to 28 May 2008. 7. On 29 September 2008, she received FCP counseling. The counselor informed the applicant she had to make an FCP because of her family situation. She was advised that she had 4 days to complete the plan. On the same date, she signed a DA Form 4856 (Developmental Counseling Form) acknowledging she agreed with the counseling. 8. Also on 29 September 2008: a. The applicant informed her chain of command that she was unable to create an FCP. b. The applicant’s commander advised the applicant, due to her responsibilities as a parent, she was no longer able to perform her duties as a Soldier in the U.S. Army. He had no choice but to start separation under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-8. 9. On 30 September 2008, she submitted a sworn statement to her chain of command stating her family, who had been active in the support of her military career, were no longer able to support her. In the past during her deployments, her daughter and son were in the care of her grandmother. However, her grandmother was no longer physically able to care for her children because she was getting older. Her aunt had assumed care for her disabled husband in addition to caring for her disabled mother. Another aunt could no longer help because she was a care provider for her grandmother. Her father lived in Texas and he was unable to help her due to his work hours. She also stated she had no contact with the children's father. She provided contact information for all the individuals who had in the past cared for her children, but were no longer able to help. 10. A Memorandum for Record, subject: Separation Justification for [applicant], dated 23 October 2008, shows the applicant’s commander spoke with the applicant, her husband (a deployed Soldier, serving in the rank of sergeant first class), and those family members who had been childcare providers for her children in the past. Those individuals could no longer help her. Therefore, the applicant had no suitable childcare provider. She was planning to get out of the military at the expiration of her term of service and she was pregnant with a due date of 17 January 2009. 11. On 30 October 2008, the applicant’s company commander notified the applicant he was initiating action to separate her under the provisions of Army Regulation 635-200, paragraph 5-8, for the parenthood with an honorable discharge. The company commander indicated the reasons for this recommendation was the applicant's inability to establish an adequate FCP. The applicant was advised of her rights. She acknowledged receipt of separation notification, consulted with legal counsel, waived her right to an administrative separation board, and elected not to submit statements in her own behalf. 12. On 3 November 2008, the separation authority directed that the applicant be discharged from the service under the provisions of Army Regulation 635-200, paragraph 5-8, by reason of parenthood with service characterized as honorable. 13. On 14 November 2008, the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 5-8, by reason of parenthood. 14. The applicant provided a letter, dated 30 November 2015, from a Licensed Clinical Social Worker who stated she was deployed to Iraq from 2007 to 2008 served as the Behavioral Health Officer for the 1st Battalion, 101st Brigade Combat Team, for 17 months, including her 15-month deployment experience. During this time, she was the behavioral healthcare provider for the applicant, who was on her second deployment. This social worker stated they met on a weekly basis for psychotherapy visits and her treatment plan addressed the applicant’s ongoing behavioral health diagnoses although she truly wanted to complete the deployment experience with her team. This deployment was during the "surge" and all Brigade Soldiers were important to mission success. During the deployment, their medical records were maintained in the electronic medical record titled, "Medical Communications for Combat Casualty Care" (MC4). Providers were told these records were to be migrated to the Medical Treatment Facility (MTF) known as AHLTA [Armed Forces Health Longitudinal Technology Application]. However, since they were deployed during early fielding of MC4, apparently the records did not migrate. 15. On 30 June 2017, an advisory opinion was received from a Medical Advisor/Psychologist within the Army Review Boards Agency. The psychologist provided a brief summary of the applicant's military service and stated the following: a. The applicant explained the she had no adequate FCP because the caregivers she preferred had ceased to be available and the caregivers who might be available did not enjoy her trust. None of the stated reasons in records related to the absence of an adequate FCP referenced any psychiatric impairment of the applicant as a reason for its absence. b. The last NCOER the applicant received went through 6 months that ended on 30 April 2007. The applicant's senior rater gave her the highest possible rating. The chief complaint about her in this NCOER seemed to be that she was having difficulty maintaining her weight at Army standards. She is now contending that she was in a psychiatric condition at the time of discharge that warranted an MEB referral, rather than discharge for parenthood. c. The applicant provided a letter, dated 30 November 2015, from a Licensed Clinical Social Worker who treated her in-theatre on a weekly basis for “major depressive disorder and anxiety”; however, this referenced writer had not referred her for an MEB. d. The applicant's last behavioral health note (18 May 2009) in the Army showed a history of diagnoses that included episodic mood disorder, explosive disorder intermittent, and adjustment disorder. In her last visit, she also complained of “compulsions,” but they did not appear to meet criteria for an OCD [obsessive-compulsive disorder] diagnosis at that time. Based on the available records, at no time during her service in the Army did the applicant reach a medical retention decision point. Therefore a referral for an MEB would have been out of order. The applicant does point out the VA has awarded her disability percentages of 40%, 90%, and 100% for "mood, adjustment disorder." She does not seem aware that the VA and Army rely on different standards in determining disability and she also seems unaware that a veteran may become more impaired over time. The applicant is apparently not responding well to treatment, based on her escalating disability—without ever having failed to meet Army Medical Retention Standards. e. The applicant’s medical records did not at the time of her discharge reasonably support her having had a boardable medical condition for that period; she did meet mental-health standards in Army Regulation 40-501 (Standards of Medical Fitness) and Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or Separation; and based on the available behavioral-health evidence, the applicant did not meet medical retention standards. f. The applicant did meet medical retention standards in accordance with Chapter 3, Army Regulation 40-501, and following the provisions set forth in Army Regulation 635-40 that were applicable to the applicant’s era of service. g. The applicant’s mental health conditions were not considered at the time of discharge from the Army, as they were not relevant to the reason for her discharge, despite her subsequent history. h. A review of available documentation did not discover evidence of mental-health considerations that were ignored at the time she was discharged for parenthood, after not providing an adequate FCP. 16. The Army Review Boards Agency forwarded a copy of the advisory opinion to the applicant to allow her to provide comments. However, she did not respond. 17. Her service record is void of evidence which indicates she incurred medical conditions that required processing through the physical disability evaluation system while she was on active duty. REFERENCES: 1. Army Regulation 635-200 establishes the policies and procedures for the separation of enlisted Soldiers. a. Paragraph 5-8 provides for the involuntary separation of Soldiers due to parenthood. That paragraph states Soldiers will be considered for involuntary separation when parental obligations interfere with fulfillment of military responsibilities. Specific reasons for separation because of parenthood include: * inability to perform prescribed duties satisfactorily * repeated absenteeism * repeated tardiness * inability to participate in field training exercises or perform special duties such as CQ [Charge of Quarters] and staff duty noncommissioned officer * non-availability for worldwide assignment or deployment according to the needs of the Army b. Separation processing may not be initiated under this paragraph until the Soldier has been adequately counseled concerning deficiencies and has been afforded the opportunity to overcome them. 2. Title 10, U.S. Code, chapter 61, provides for disability retirement or separation for a member who is physically unfit to perform the duties of his or her office, rank, grade, or rating because of a disability incurred while entitled to basic pay. 3. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of a physical disability. The regulation provides that Medical Treatment Facility (MTF) will provide a thorough and prompt evaluation when a Soldier's condition becomes questionable in respect to physical ability to perform duty. Unit commanders will ensure that any physical defects impacting on a Soldier's performance of duty are reflected in the Soldier's evaluation report and refer the Soldier to the servicing MTF for medical evaluation when the Soldier is believed to be unable to perform the duties of his or her office, grade, rank, or rating. It also states that the MTF commander having primary medical care responsibility will conduct an examination of the Soldier referred for evaluation. If it appears that the Soldier is not medically qualified to perform duty, the MTF commander will refer the Soldier to a MEB. The MEB will recommend referral to a Physical Evaluation Board (PEB) those Soldiers who do not meet medical retention standards. 4. 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: 1. By regulation, a Soldier's commander can initiate involuntary separation actions against a Soldier under the provisions of Army Regulation 635-200, paragraph 5-8, when the Soldier's parental obligations interfere with the performance of the Soldier’s duties. In the applicant's case, she was counseled for not having an adequate FCP. On the same date, she notified her chain of command that she was unable to provide an FCP for her children because her family was no longer able to help care for them. 2. The evidence of record shows the applicant was involuntarily separated from the Army as a result of parenthood. 3. The evidence of record shows the applicant served in the Regular Army from 1 November 2000 to 14 November 2008. 4. The applicant provided a letter from a Licensed Clinical Social Worker which shows she met with the applicant on a weekly basis for ongoing major depressive disorder and anxiety. 5. The applicant's service record is void of medical documentation or other evidence that indicates she incurred medical conditions while she was entitled to basic pay which was so severe as to render her medically unfit for retention on active duty. 6. The applicant's continued performance of assigned duties supports a presumption of fitness which she has not overcome by evidence of any unfitting, acute, grave illness or injury related to her service that prevented her from performing her duties through her discharge in 2008. As such, there was no reason for medical personnel or her unit commander to recommend her for physical disability evaluation processing. /NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160000366 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160000366 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2