MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:           3 August 2000                  
	DOCKET NUMBER:   AR1999030386

	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	
	Mr. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone 		Chairperson	
	Mr. Edwin S. Castle 		Member	
	Mr. Calvin M. Fowler 		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:  Physical disability retirement.

APPLICANT STATES:  That she was under severe mental pressure and should have underwent a medical board to determine her fitness for retention.  Because of her mental state of mind and because of inadequate counseling, she believed that a medical board was an adverse action, disciplinary in nature, and its only purpose was to destroy her.  Consequently, she fought not to have a medical board. 

COUNSEL CONTENDS:  Counsel supports the applicant’s request for physical disability retirement, stating that the applicant did suffer from major depression before she was released from active duty, as reflected in her records.  COPY OF COUNSEL’S STATEMENT IS ATTACHED. 

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

The applicant was appointed as a Reserve commissioned officer as a second lieutenant in the Army Nurse Corps on 23 August 1990.  She completed the advanced course in 1994 and was promoted to Captain on 1 October 1994.  She had assignments at Fort Sam Houston, Texas, Korea, and Fort Leonard Wood.  Her officer evaluation reports through December 1995 have been consistently excellent with her senior raters placing her in the center of mass in the potential evaluation portion of the evaluation report form.  That changed with the report for the 4 month period ending on 22 May 1996, when her rater indicated that she usually exceeded requirements and should be promoted with her contemporaries.  That rater stated that her skills and attention to detail did not reflect her training and experience.  Her senior rater placed her below center of mass in the potential evaluation portion of that report.  Her report for the 3 month period ending on 31 August 1996 was likewise not good, in that her rater stated that she demonstrated marginal clinical competence and judgment, and that despite counseling, she did not meet the established standards.  That person stated that she met requirements and should be promoted with contemporaries.  Her senior rater again placed her below center of mass on that report.  

Outpatient psychiatric notes, submitted with the applicant’s request, show that she was evaluated by a doctor at Fort Leonard Wood, Missouri on two occasions in October of 1996.  She was evaluated for symptoms of depression and had been having some difficulties as a nurse in her job.  The doctor stated that it was apparent that she was having a major depression, and having some moderate, cognitive problems along with prominent neurovegetative symptoms.  The doctor stated that the applicant said that she had a great deal of difficulty with concentration and memory, and had missed several appointments with her nurse supervisors.  She was informed that more than likely she would have a medical board for her depression.  He stated that he believed that the applicant needed to have a medical board, that she was not capable of overseas duty and needed to have her depression aggressively treated.  He stated that she had generalized anhedonia and extremely poor energy and had extreme difficulty with concentration and memory.  He stated that she appeared to be sad and anxious and her affect was somewhat restricted.  She denied any suicidal or homicidal ideations or passive death wishes.  Her self-attitude was intact and appropriate.  Her vital sense appeared diminished.  She denied any auditory or visual hallucinations or any other psychotic symptoms.  She denied any obsessions, compulsions, or phobias.  He stated that he discussed her case with the chief of clinical services in the psychiatry department, and surmised that she would need a medical board since she was not deployable and was unable to perform her duties.  He informed the applicant that more than likely her depression might be recurrent and she might have to transfer to civilian life and have her psychiatric care continued there.  He diagnosed her condition as major depression, moderate to severe without psychotic features.  In a later session with the applicant, that same doctor again stated that the applicant would more than likely require a medical board.  He stated that she did not require emergency hospitalization at that time; and, although 72 hours ago, she was quite dysfunctional and was unable to even complete simple tasks in the library without acute agitation, she was now calmer and more in control.  He stated that the applicant would continue on certain medications, would follow up with him for a  reassessment, and would continue with supportive psychotherapy sessions.
A undated list of the applicant’s medical appointments show that she was seen by a psychiatrist on five occasions in October 1996.  A penciled notation on that list indicates that the applicant “had been put through a bad mental trauma she could not successfully overcome.  She should have been medically boarded but extremely bad counseling and leadership prevented that.”  The author of that note is unknown.

A hand written list of her assignments show that in March 1996 she had a new head nurse, that the applicant repeatedly asked for a transfer, that she talked with her commander, went to the Inspector General (IG), and went to the Judge Advocate General (JAG) about continued harassment by the head nurse.  She received progressively worse evaluation reports.  That list indicates she was hospitalized in the psychiatry ward on 2 October 1996, and sent to Wright-Patterson Air Force Base on 2 December.  

The applicant was released from active duty on 14 February 1997 under the provisions of Army Regulation 600-8-24, paragraph 2-5, and transferred to the Army Reserve Control Group (Reinforcement) at St. Louis.  Her characterization of service was honorable.  The reason for her separation is shown as “Early Release Program-Voluntary Separation Incentive.”  She had 6 years, 8 months, and 28 days of active service.  She received a voluntary separation incentive (VSI) of $6318.00.   

A 12 November 1998 psychology consultation report indicates that the applicant stated that her mental health problems began at Fort Leonard Wood where she was “backed into a corner” by a head nurse who reportedly made life difficult for her.  She was accused of attempting to overthrow the head of nursing.  Her job was stressful, she reported drinking in excess, and was reportedly hospitalized due to unmanageable stress.  She could not stop crying for 4 straight days.  The psychologist stated that the applicant indicated that she had difficulty working due to noticeable tremor (which might be secondary to medication), dreamt of people with faces she did not see, and slept in cycles.  He stated that thought blocking, mental confusion, anhedonia, and anenertia were significant problems for her.  No delusions or hallucinations were reported by the applicant.  That person stated that her clinical presentation could be interpreted as post traumatic stress disorder (PTSD). 

A 24 November 1998 medical record indicates that the applicant had resigned from a job because of her depression, sought work as a nurse in home health care, but was unable to function given her emotional state, and had to quit that job.  That record went on to state that her symptoms supported a diagnosis of PTSD.  Re-experiencing the traumatic events, such as recurrent and intrusive distressing recollection of her struggle with a supervisor at Fort Leonard Wood, whose treatment might very well be considered abusive and traumatic, persisted. Her job was on the line and her entire career as a registered nurse was in jeopardy, causing tremendous stress to be placed on her on a daily basis.  The applicant reported flashbacks.  That record indicated that distress over exposure to the medical/hospital setting was itself disturbing to the applicant.  It also indicated that she persistently reenacted through obsessive thoughts and regressiveness to the point where she missed some therapeutic activities when receiving treatment on an inpatient status, and suppressed her recollections from her own days as a nurse.  

On 22 March 1999 the Social Security Administration informed the applicant that she was entitled to monthly disability benefits beginning in August 1997. 

In a 23 June 1999 letter an individual who stated that he worked with her on her claim, stated that very poor counseling and leadership, coupled with the applicant’s mental state of mind, combined to deny her a medical board.  He also stated that the applicant believed that she would be destroyed professionally if she had a medical board.  He stated that at no time was she counseled by a chaplain, or an outside counselor.  Every person who counseled her was the enemy.  She was fighting for her career.  Her case was a travesty.

Army Regulation 600-8-24 prescribes the officer transfers from active duty to the Reserve Component and discharge functions for all officers on active duty for    30 days or more.  Paragraph 2-5 provides the rules for processing voluntary relief from active duty due to personal reasons, and states that if eligible, an officer may request relief from active duty whenever such action is considered appropriate.

A soldier approved for separation under the VSI program is paid an amount equal to 2.5 percent of her monthly basic pay on the date transferred to the Ready Reserve, multiplied by twelve and multiplied again by her years of service. A soldier will be paid in annual installments commencing on her departure date from active duty, and on each anniversary date thereafter for twice the number of years of active duty, provided the soldier continues to serve in the Ready Reserve.  VSI annual payments will be discontinued if the member is separated from the Ready Reserve, except under certain conditions, i.e., the soldier’s death.

Army Regulation 635-40 establishes the Army physical disability evaluation system and sets forth policies, responsibilities, and procedures that apply in determining whether a soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  It provides for medical evaluation boards (MEBD), which are convened to document a soldier’s medical status and duty limitations insofar as duty is affected by the soldier’s status.  A decision is made as to the soldier’s medical qualifications for retention based on the criteria in AR 40-501, chapter 3.  If the MEBD determines the soldier does not meet retention standards, the board will recommend referral of the soldier to a physical evaluation board (PEB).

Physical evaluation boards are established to evaluate all cases of physical disability equitability for the soldier and the Army.  It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of soldiers who are referred to the board; to evaluate the physical condition of the soldier against the physical requirements of the soldier’s particular office, grade, rank or rating; to provide a full and fair hearing for the soldier; and to make findings and recommendation to establish eligibility of a soldier to be separated or retired because of physical disability.

Paragraph 3-2b of that regulation states in pertinent part that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  

That paragraph goes on to say that when a member is being separated by reason other than physical disability, her continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that she was unable to perform 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.
Title 38, United States Code, sections 310 and 331, 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:  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 applicant voluntarily requested relief from active duty and transferred to the Army Reserve Control Group (Reinforcement).  Despite the information she has furnished with her request, and her contentions that she should have received a MEBD, a MEBD was not convened.  The applicant’s continued performance of duty raised a presumption of fitness which she has not overcome by evidence of any unfitting, acute, grave illness or injury concomitant with her separation from active duty.  She volunteered to be released from active duty under the VSI program, accepted an initial VSI payment of $6318, and was released in accordance with her wishes.

2.  The fact that the Social Security Administration, in its discretion, has awarded the applicant a disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish physical unfitness for Department of the Army purposes.

3.  There is no information as to whether or not the VA has awarded the applicant a service connected disability rating.  Nonetheless, an award of a VA rating does not establish entitlement to medical retirement or separation.  The VA is not required to find unfitness for duty.  Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected.  Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.

4.  The applicant did not have any medically unfitting disability which required physical disability processing.  Therefore, there is no basis for physical disability retirement or separation.

5.  Neither the applicant nor counsel has submitted probative evidence or a convincing argument in support of her request.   

6.  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.
  
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

___esc__  ___jns___  ___cmf__  DENY APPLICATION

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

INDEX

CASE ID	AR1999030386	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000803	
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.  177	108.00	
2.		
3.		
4.		
5.		
6.