MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:  16 March 2000
	DOCKET NUMBER:   AR1999029463

	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. Paul A. Petty		Analyst	

  The following members, a quorum, were present:

	Ms. Jennifer L. Prater		Chairperson	
	Mr. Christopher J. Prosser		Member	
	Mr. Orville W. Troesch		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:  That his discharge be reopened to access his mental condition as of the date of discharge and entitlement to disability retirement or severance pay.

APPLICANT STATES:  That at the time of discharge, he received no advice on asking for a Medical Evaluation Board and did not have a fair evaluation for Post Traumatic Stress Disorder (PTSD).  He provides two notebooks of documents, primarily of Veterans Administration medical records, rating decisions, and appeals, plus his active duty military medical record and some military personnel records.

COUNSEL CONTENDS:

That the Army Board for Correction of Military Records statute of limitations on considering a request being three years from the date of discovery of an error or injustice be waived and the applicant’s petition be heard.

That the applicant was discharged without a comprehensive physical and mental evaluation as required by Military Personnel Manual 1910-808.  He contends that the applicant was illegally discharged because he was not counseled about his right to have a Medical Evaluation Board (MEB) nor did he waive his right to have a medical evaluation board.  The counsel contends that under current standards required by AR 635-200, paragraph 3-7(b)(7), that as part of his discharge, the applicant was required to receive counseling to inform him of his right to request a review of a serious defect or condition that would interfere with the performance of his military duties.  He also contends that according to 
AR 40-501, paragraph 3-3 (sic 3-33), which describes psychiatric reasons for referral to a MED, the applicant should have been so referred by his separation medical evaluation doctor based on records in the applicant’s medical record of three psychiatric episodes.

That the applicant was improperly discharged as physically and mentally qualified when in fact he was not qualified.  Counsel and the applicant cite three incidents in the applicant’s medical records when he was diagnosed respectively with transient stress reaction manifest by depression; personality pattern disturbance, transient, situational; and mild situational anxiety.

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

That he enlisted in the Regular Army on 26 July 1967 for a three year term of service.  After completing basic training and artillery training, he was assigned on 12 January 1968 as a cannoneer at Fort Davis, Panama Canal Zone.  He was advanced to E-3 on 20 May 1968.  On or about  12 June 1968, he was thrown from or jumped from a moving jeep.  No bones were broken.  He did have multiple abrasions and contusions.  He was released from the hospital on 
28 June 1968.  On 2 August 1968, he received a special court-martial and was reduced to E-1.  He was readvanced to E-3 on 18 January 1969 and then advanced to E-4 on 24 September 1969.

On 18 August 1969, he was assigned to Fort Bliss, Texas, and then on 
9 December 1969, he was reassigned in Vietnam as a light air defense artillery crewman.  He was promoted to Sergeant E-5 on 28 March 1970.  He returned to the United States, Fort Lewis, Washington, on 15 July 1970 for transfer to the USAR to complete his military obligation.  His medical records were reviewed and he was given a separation physical on 16 July 1970.  No abnormalities were found and he was qualified medically for separation.  He was honorably transferred to the USAR Individual Ready Reserve on 17 July 1970 by reason of being an overseas returnee.  He had a total active service of 2 years, 11 months, and 19 days of which 7 months and 17 days were in Vietnam.

His medical record from his period of active duty shows: right hand mashed by tank hatch (x-rays did not show broken bones but right index finger was splinted); blood clot on upper lip from being hit in the mouth; acne, athlete’s foot (tinea pedis), infected foot blister, conjunctivitis (eye infection); crabs (pediculosis pubis), gonorrhea (intra and extracellular diplocucci), rash on buttocks, rash and lesions in the groin area; fainting episode, Diarrhea, flu, abdominal pain, and earache.

On 12 June 1968, the applicant was admitted to the Coco Solo Hospital in the Canal Zone for back pain as a result of jumping from or being thrown from a moving jeep.  The applicant sustained abrasions and contusions but no broken bones.  He was placed on bed rest in the hospital and given a liquid diet.  As a result of the accident and hospitalization he experienced transient stress reaction manifest by depression.  This was treated with medication and the applicant was released on 28 June 1968 with one week of light duty due to his physical injuries. The psychiatrist judged that no follow-up psychiatric appointment was necessary.

On 11 January 1969, the applicant was admitted to the Coco Solo Hospital for evaluation of complaints of headache and chest pain.  The applicant considered himself to be overworked in his job and unhappy with his assignment in the Canal Zone.  He was given a battery of physical examinations and laboratory tests.  There were no physical findings.  A psychiatric evaluation determined that the applicant was, “immature and that his symptoms were due to transient situational stress.”  The final diagnosis was, “Personality pattern disturbance, transient, situational.”  The applicant was discharged on 22 January 1969 and returned to duty with prescription of valium sedative (5 mg twice a day).

On 22 April 1970, the applicant went on sick call to the 71st Evacuation Hospital in Vietnam complaining of an earache and nervousness.  The applicant was referred to the Neurological Psychiatric Clinic with a complaint of being agitated, nervous, tension headaches, and being short tempered, at 86 days from the end of his term of service and tour in Vietnam.  The applicant stated that he had some difficulty in interaction with supervisors and men in his squad, and that he was short tempered.  He was diagnosed with mild situational anxiety, prescribed a librium sedative (10 mg three times a day for 2 weeks), and returned to duty.

After separation from active duty, the applicant’s first record of application to the Veterans Administration for medical care was on 10 November 1972 for acute bronchitis or pneumonia.  He was diagnosed with acute bronchitis, external hemorrhoids, and tinea pedis (athlete’s foot).  He was treated and released on 
24 November 1972.  There was no evidence or complaint of PTSD related symptoms at that time.

On 6 January 1987, the applicant applied for admission to the VA Hospital in Montrose, New York, for drug rehabilitation.  He was diagnosed with mixed substance abuse: alcohol, cocaine, crack, marijuana, etc., and admitted to the Drug Rehabilitation Program.  While in this program, he was diagnosed on or about 9 February 1987 with PTSD.  On 9 April 1987, he was transferred to the Psychological Rehabilitation Program.  He was discharged on 11 June 1987 with follow up prescribed at the Brooklyn VA Clinic.

On or about 27 February 1987, he filed a claim for a VA Disability Evaluation for PTSD.  On or about 9 July 1987, he was given a VA rating decision of 30 percent for PTSD.  On 9 July 1990, the VA increased the applicant’s disability rating for PTSD to 100 percent.

The separation regulation in effect at the time of the applicant’s release from active duty, Army Regulation (AR) 635-200, Personnel Separations – Enlisted Personnel, dated 15 July 1966, with changes 1-20, concerning separation physicals, states in paragraph 2-20, “Commanders having discharge authority directing discharge or release from active duty of an enlisted person will comply with the provisions of AR 635-10.”

The separation processing regulation in effect at the time of the applicant’s release from active duty, AR 635-10, Personnel Separations - Processing Personnel for Separation, dated 21 May 1968, states that military personnel on active duty for more than 30 days will undergo a medical evaluation prior to separation.

The separation physical evaluation regulation in effect at the time of the applicant’s release from active duty and currently, AR 635-40, Physical Evaluation for Retention, Retirement, or Separation, does not give authorization to a solder to request a MEB.  Only a soldier’s commander, physician, or a Military Occupational Specialty/Medical Retention Board (MMRB) may request a MEB or refer a soldier to a MEB.  An MEB determines if a soldier is fit for duty.  
If a soldier continues to perform military duty up to the point of separation, the soldier is considered fit for military duty.  Military disability retirement or severance pay is to compensate soldiers for service terminating disabilities.

The medical standards of fitness regulation in effect at the time of the applicant’s separation from active duty, AR 40-501, Standards of Medical Fitness, dated 
5 December 1960 with changes 1-28, paragraph 3-31 b. states, “Transient personality disruptions.  Transient personality disruptions of a nonpsychotic nature and situational maladjustments due to acute and special stress do not render an individual unfit because of physical disability.”

The current AR 40-501, dated 27 February 1998, paragraph 3-33, states, “Anxiety, somatoform, or dissociative disorders (neurotic disorders).  The causes for referral to an MEB are persistence or recurrence of symptoms sufficient to require extended or recurrent hospitalization, necessity for limitations of duty or duty in protected environment or resulting in interference with effective military performance.”

PTSD, an anxiety disorder, was not recognized as a psychiatric disorder until 1980 with the publishing of the Diagnostic and Statistical Manual of Mental Disorders (DSM) III.  Army Regulation 40-501 does not specifically categorize PTSD; however, it does address anxiety or neurotic disorders, and provides that such disorders are unfitting ONLY if there is persistence or recurrence of symptoms sufficient to require extended or recurrent hospitalization, necessity for limitations of duty or duty in protected environment or resulting in interference with effective military performance.  

While both the Army and the VA use the Veterans Administration Schedule for Rating Disabilities (VASRD), not all of the general policy provisions set forth in the VASRD apply to the Army.  The Army rates only conditions which are determined to be physically unfitting for further military service thereby compensating the individual for the loss of his or her military career.  The VA, however, may rate any service connected impairment to compensate for loss of civilian employment.  Therefore, it is not unexpected that these two different systems would produce different evaluations.

Concerning the current regulations and standards referenced by counsel as
AR 635-200 as paragraph 3-7 (b)(7).  Counsel contends that this reference requires the applicant to be informed of his right to request review of a serious defect or condition that interfered with he performance of military duty.  The referenced sub paragraph does not exist.  Paragraph 3-7, does exist but deals with types and character of discharge and 3-7 (b) specifically deals with general discharge which is not relevant to the applicant’s case.

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 request to waive the three years statute of limitations on the Board considering cases is not an issue.  The Board routinely waves this limitation if the application for correction merits consideration.

2.  Current standards do not apply to discharge for physical disability.  Only standards and regulations in effect at the time of separation apply in the case of discharge for physical disability or severance pay due to physical disability.  After discharge, the VA addresses changes in physical or mental conditions that are service connected and compensates veterans for loss of civilian employability as a consequence.

3.  The applicant’s three medical incidents that involve stress and anxiety were not unfitting for military duty and did not meet the requirements for reference to a MEB.  The two short periods of hospitalization were for physical injuries due to a jeep accident and for headaches and chest pain, both temporary and unrelated physical conditions.  The associated stress in the first case and anxiety in the second case were transient, treated medically, and the soldier returned to his military duties with out limitations, impairment, lengthy follow up, or lengthy hospitalization.  The third incident, a clinic outpatient visit in Vietnam for an earache and nervousness, was likewise diagnosed as mild situational anxiety, a temporary condition treated medically and the applicant returned to full military duty the same day.  The medicines prescribed in these cases, Valium (5 mg twice a day) and Librium (10mg three times a day for two weeks), are low concentrations according to the Board’s medical doctor advisor.  These three incidents do not demonstrate persistent or recurrent symptoms sufficient to require extended or recurrent hospitalization.  They did not necessitate limitations of duty or duty in a protected environment.  They did not interfere with effective military performance of the applicant over his 2 years, 11 months, and 17 days.

4.  At the time of separation and the applicant’s separation medical examination, the applicant was performing his military duties.  He was not hospitalized, under treatment, on limited duty, or in a protected environment, for any disabling anxiety or stress.  According to an information paper from the U. S. Army Physical Disability Agency, a soldier is presumed fit if he or she continues to perform military duty up to the point of separation or can reasonably perform the duties of his or her grade and MOS.  AR40-501 in effect at the time of the applicant’s discharge also states that transient personality disruptions of a nonpsychotic nature and situational maladjustments due to acute or special stress do not render an individual unfit.  For both of these reasons, the doctor administering the separation physical correctly evaluated the applicant’s medical condition and medical records and found no basis for referral to a MEB.  As such, the doctor was correct in stating that the applicant was qualified for separation.

5.  Since the applicant was not found to have an unfitting condition at the time of separation, according to the above paragraphs 2 and 3, he would not have been considered for or granted a medical retirement or severance pay.  The Army rates only conditions which are determined to be physically unfitting for further military service thereby compensating the individual for the loss of his or her military career.

6.  The applicant’s rights were not violated by him not being counseled concerning his right to a MEB or requirement to waive a MEB before he could
be separated.  There is no such requirement for medical or legal counseling concerning a right to an MEB or waiver of an MEB required by the applicant for separation as an oversees early returnee according to AR 635-200, AR 635-40 and AR40-501.  The applicant was properly and legally separated.

7.  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

__JP___  __CP___  __OT___  DENY APPLICATION

						Karl F. Schneider
				     Director, Army Review Boards Agency

Current regulation, AR 635-200, dated 17 September 1990 with changes 1-15, states in paragraph 1.22, “Commanders having separation authority directing separation or release from active duty of a soldier will comply with AR 635-10.”  Paragraph 1-34, states medical examinations are required for soldiers being processed for separation under chapter 5 (only paras 5-3 (involuntary separation only by Secretarial Authority), 5-11 (separation of personnel who did not meet procurement medical fitness standards), and 5-12 (discharge for failure after enlistment to qualify medically for flight training); chapter 8, 9, 11 (para 11-3b only), 12, or 13; chapter 14 (section III only), 15 and 18; and for certain other soldiers as required by AR 40-501, paragraph 8-23 and table 8-3.  (The applicant was not discharged for any of the above.)  Medical examinations incident to separation under other provisions of this regulation are not required, but will be administrated if requested in writing by the soldier, but separation will not be delayed until completion of the physical.“  “In addition to medical examinations, mental status evaluations conducted by a psychiatrist or licensed clinical psychologist are required for soldiers being processed for separation under chapter 13, 14 (sec III), or 15.  A mental status evaluation is also required when a soldier being processed for discharge under chapter 10 requests a medical examination.”  (The applicant was not discharged for any of these reasons.

The current AR 635-10, paragraph 2.4 d states, “There is no statutory requirements for soldiers of the active Army including USMA cadets and members of the USAR and ARNG on active duty or active duty for training to undergo a medical examination incidental to separation from Active Army service.  However, it is Army policy to accomplish a medical examination if the soldier is being discharged/released from active duty requests a medical examination.  However, if soldier declines a medical examination, his Health Record must be reviewed by a physician or physician assistant (PA) before separation.  A physical examination may be required if the review of soldier's health records by physician or PA warrants an examination or if the soldier has an unfitting condition as described in AR 40-501.

INDEX

CASE ID	AR1999029463	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000316	
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.		
2.		
3.		
4.		
5.		
6.