IN THE CASE OF: BOARD DATE: 25 October 2016 DOCKET NUMBER: AR20150008830 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 IN THE CASE OF: BOARD DATE: 25 October 2016 DOCKET NUMBER: AR20150008830 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. IN THE CASE OF: BOARD DATE: 25 October 2016 DOCKET NUMBER: AR20150008830 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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was medically discharged or retired due to disability instead of by reason of a "physical condition, not a disability." 2. The applicant states he was consistently seen by military physicians and diagnosed while in the Army, which can be seen in his military medical records. The Army clearly made a mistake by listing his narrative reason for separation as "physical condition, not a disability." He is currently considered 100-percent disabled by the Department of Veterans Affairs (VA) for the same disabilities that he incurred during his service in the Army. 3. The applicant provides: * 1st Cavalry Division Mental Health administrative separation request memorandum, dated 16 January 2003 * DD Form 214 * VA letter, dated 18 March 2014 * page 2 of an unidentified VA document, which appears to be a VA Rating Decision 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 29 May 2002. 3. A memorandum from the Chief, Division Mental Health Clinic, 1st Cavalry Division, dated 16 January 2003, regarding an administrative separation request for the applicant states he was evaluated from 7 January 2003 until the date of the memorandum and diagnosed with an adjustment disorder with mixed anxiety and depression. a. The findings state the applicant met the retention standards in chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness) and there was no psychiatric disorder or defect that warranted his disposition through medical channels. The applicant was deemed mentally sound and able to appreciate any wrongfulness in his conduct and to conform his conduct to the requirements of the law. He had the mental capacity to understand and participate in board or other administrative proceedings. His condition and problems were not amenable to hospitalization, treatment, transfer, disciplinary action, training, or reclassification to another type of duty in the military. b. He strongly recommended the applicant's administrative separation as expeditiously as possible. The applicant met the criteria for an administrative separation in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-17 (Other Designated Physical or Mental Conditions). He was returned to his unit as psychiatrically fit for duty, not requiring a medical board. 4. His available service records do not indicate: * he was issued a permanent physical profile * he suffered from a medical condition or physical or mental condition that affected his ability to perform the duties required by his military occupational specialty (MOS) and/or grade or rendered him unfit for military service * he was diagnosed with a medical condition that warranted his entry into the Army Physical Disability Evaluation System (PDES) * he was diagnosed with a condition that failed retention standards and/or was unfitting 5. On 11 April 2003, his immediate commander notified him of his intent to initiate separation action against him under the provisions of Army Regulation  635-200, paragraph 5-17. The reason for the proposed action was the recommendation by his evaluating psychiatrist for discharge due to a diagnosis of an adjustment disorder with mixed anxiety and depression. His commander recommended an honorable discharge. He was advised of his right to consult with counsel, submit written statements in his behalf, and obtain copies of the documents that would be sent to the separation authority. 6. On 11 April 2003, he acknowledged receipt of notification of separation by reason of other designated physical or mental conditions under the provisions of paragraph 5-17 of Army Regulation 635-200. 7. On 2 May 2003, he acknowledged he was advised by consulting counsel of the basis of the contemplated action to separate him by reason of other designated physical or mental conditions under the provisions of paragraph 5-17 of Army Regulation 635-200. He waived his right to consult with counsel prior to submitting his Election of Rights. He acknowledged he understood he might expect to encounter substantial prejudice in civilian life if a discharge under other than honorable conditions were issued to him. He waived consideration of his case by an administrative separation board and did not submit statements in his own behalf. 8. Consistent with the chain of command's recommendations, the separation authority approved his discharge. His DD Form 214 shows he was honorably discharged on 26 June 2003 by reason of a "physical condition, not a disability" under the provisions of Army Regulation 635-200, paragraph 5-17. He completed 1 year and 20 days of net active service. 9. A letter from the VA, dated 18 March 2014, shows he filed a disability claim with the VA for service-connected compensation subsequent to his military service. He was granted 100-percent service connection for chronic adjustment disorder. The effective date is not shown. 10. An Army Review Boards Agency clinical psychologist provided an advisory opinion on 8 September 2016 based on the applicant's records and the information he provided. Based on a thorough review of the available medical records, the clinical psychologist determined there is no evidence the applicant met the criteria for medical retirement for an adjustment disorder. Although he was diagnosed with an adjustment disorder during his time in the service, it was determined by medical professionals and acknowledged by him through counseling that the appropriate disposition would be an administrative separation and not a medical discharge. 11. The applicant was provided a copy of the advisory opinion on 9 September 2016 and given an opportunity to respond, but failed to do so. REFERENCES: 1. Army Regulation 635-200, paragraph 5-17, states commanders who are special court-martial convening authorities may approve separation under this paragraph on the basis of other physical or mental conditions not amounting to disability that potentially interfere with assignment to or performance of duty. A recommendation for separation must be supported by documentation confirming the existence of the physical or mental condition. Members may be separated for physical or mental conditions not amounting to disability sufficiently severe that the Soldier's ability to effectively perform military duties is significantly impaired. 2. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency, under the operational control of the Commander, U.S. Army Human Resources Command (HRC), is responsible for administering the PDES and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). a. The objectives of the system are to: * maintain an effective and fit military organization with maximum use of available manpower * provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability * provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected b. Soldiers are referred to the PDES when: * they no longer meet medical retention standards in accordance with Army Regulation 40-501, chapter 3, as evidenced in a medical evaluation board * receive a permanent physical profile rating of 3 or 4 and are referred by an MOS/Medical Retention Board * are command-referred for a fitness-for-duty medical examination * are referred by the Commander, HRC c. The PDES assessment process involves two distinct stages: the medical evaluation board (MEB) and the physical evaluation board (PEB). The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are "separated" receive a one-time severance payment, while veterans who retire based on disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. d. The mere presence of medical impairment does not, in and of itself, justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his/her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 3. Army Regulation 635-40 establishes the Army PDES 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/her office, grade, rank, or rating. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. 4. Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement). Once a determination of physical unfitness is made, the PEB rates all disabilities using the VA Schedule for Rating Disabilities (VASRD). 5. The VASRD is used by the Army and the VA as part of the process of adjudicating disability claims. It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service. This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation. 6. Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish error or injustice on the part of the Army. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The VA does not have the authority or responsibility for determining physical fitness for military service. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. These two government agencies operate under different policies. Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. DISCUSSION: 1. The applicant's request for correction of his DD Form 214 to show he was medically discharged for disability or medically retired instead of separated by reason of a "physical condition, not a disability" was carefully considered. 2. The evidence of record shows he was diagnosed with adjustment disorder and properly discharged in accordance with Army regulatory guidance for a condition, not a disability. He received a mental health evaluation and was deemed to meet the retention standards of Army Regulation 40-501. His administrative discharge was accomplished in compliance with applicable regulations without procedural errors which would have jeopardized his rights. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. 3. Although he provided a VA rating decision showing he was granted 100-percent service connection for a diagnosis of adjustment disorder, the Army and the VA disability evaluation systems are independent of one another. A diagnosis of a medical condition and/or a subsequent award of a rating by another agency does not establish an error by the Army. Operating under different laws and policies, the VA does not have the authority or the responsibility to determine medical unfitness for military service. The VA may award ratings because a medical condition is related to service (service connected) and affects the individual's civilian employability. The VA has the responsibility and jurisdiction to recognize any changes in a condition over time by adjusting a disability rating. 4. There is no evidence showing he had a permanent physical profile, a diagnosis of a disabling condition that rendered him unable to perform the duties required of his MOS or grade, or a medical evaluation that warranted his entry into the PDES. Referral into the Army PDES requires a designation of "unfit for duty" before an individual can be separated from the military because of an injury or medical condition. At the time of the applicant's discharge, there was no evidence of an unfitting condition that would have warranted entry into the PDES. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150008830 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150008830 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2