IN THE CASE OF: BOARD DATE: 19 April 2016 DOCKET NUMBER: AR20150009365 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: 19 April 2016 DOCKET NUMBER: AR20150009365 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: 19 April 2016 DOCKET NUMBER: AR20150009365 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 items 23 (Type of Separation), 26 (Separation Code (SPD)), and 28 (Narrative Reason for Separation), on her DD Form 214 (Certificate of Release or Discharge from Active Duty) by, in effect: a. Voiding her discharge under the provisions of paragraph 5-17 (Other Designated Physical or Mental Conditions), Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations); and b. Replacing it with a disability separation under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). 2. The applicant states, in effect: * based on a behavioral health diagnosis of adjustment disorder with anxiety and depression, she was discharged under the provisions of paragraph 5-17 (Other Designated Physical or Mental Conditions), Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations) * following her discharge, the Department of Veterans Affairs (VA) awarded her a combined disability rating of 20 percent for two service-connected conditions: iliotibal band syndrome (ITBS) in the right knee and syncope (temporary loss of consciousness caused by a fall in blood pressure, which can either stem from either heart or neurological conditions) * she contends, in effect, these two medical conditions should have resulted in her being enrolled into the Integrated Disability Evaluation System (IDES) and then receiving a disability separation 3. The applicant provides: * second page of a letter from VA * extract from a VA Rating Decision * ten pages extracted from the applicant's medical records * DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 25 July 2012 CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 22 November 2011. Following basic combat training at Fort Sill, OK, she was assigned to Fort Sam Houston, TX, to participate in advanced individual training (AIT) for military occupational specialist (MOS) 68W (Health Care Specialist). 2. On 23 May 2012, she was counseled by Sergeant (SGT) RP, Operations Sergeant. SGT RP expressed concern about the applicant's lack of motivation and overall behavior. He indicated she was being referred for a behavioral health evaluation. He also stated, should her conduct continue, she could be separated. 3. She was evaluated by a behavioral health specialist (JIB, a licensed psychologist with a doctorate degree), Campus Behavioral Health Service (CBHS) on 23 May 2012. Dr. JIB essentially stated: * the applicant had been seen at CBHS on multiple occasions * she was dealing with mild to severe levels of depression and anxiety * she was also experiencing an extreme lack of motivation and desired to be home with her family * her depressed emotional state may negatively affect her duty performance as a Soldier, and have an impact on her ability to adapt to military life * her current emotional difficulties made it unlikely she would respond to treatment * the diagnosis was adjustment disorder with anxiety and depressed mood * she was recommended for separation under the provisions of paragraph 5-17, Army Regulation 635-200 4. On 27 June 2012, she was notified by her commander of his intent to initiate separation action under the provisions of paragraph 5-17, Army Regulation 635-200. She was advised he would be recommending her service be characterized as honorable and that she had the following rights: * consult with counsel * submit written statements in her own behalf * obtain copies of all documents which would be considered by the separation authority * to waive the above rights in writing 5. The applicant acknowledged the commander's notification on 27 June 2012. She consulted with counsel on 28 June 2012. She then indicated in writing she had been informed of the basis for the contemplated separation action, of the rights available to her, and, because she had less than 6 years of service, she was not entitled to have her case heard by an administrative separation board. Following consultation with counsel, she: * elected not to submit statements in her own behalf * requested counsel * understood she could encounter substantial prejudice in civilian life, if a general discharge under honorable conditions was issued * requested a copy of the entire packet 6. On 3 July 2012, her administrative separation action received a legal review and was determined to be legally sufficient. 7. On 12 July 2012, the separation authority approved the applicant's discharge and directed the issuance of an honorable discharge. She was discharged accordingly on 25 July 2012. 8. Her DD Form 214 shows: * item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) - National Defense Service Medal * item 23 - Discharge * item 24 (Character of Service) - Honorable * item 25 (Separation Authority) - Army Regulation 635-200, paragraph 5-17 * item 26 - "JFV" (SPD for Condition, Not a Disability, Army Regulation 635-200, paragraph 5-17) * item 28 - Condition, Not a Disability 9. The applicant provides: a. The second page of a letter from the VA which states she was granted a combined disability rating of 20 percent effective 26 July 2012 (the day following her discharge) for the following service-connected conditions: * ITBS of the right knee, due to a limitation of extension of 10 to 14 degrees * syncope, as a result of a confirmed diagnosis of epilepsy with a history of seizures b. Ten pages, dated between December 2011 and May 2012, extracted from the applicant's medical records. (1) The following medical conditions are identified: * vasovagal syncope (according to the Mayo Clinic website, vasovagal syncope occurs when a person faints due to an overreaction to triggers, such as the sight of blood or extreme emotional distress; it is usually harmless and requires no treatment, but the treating physician should rule out a heart disorder as the cause) * intermittent knee pain is mentioned in only one entry, dated 9 December 2011 * adjustment disorder with anxiety and depressed mood (2) Standard Form (SF) 600 (Chronological Record of Medical Care), dated 12 January 2012, Fort Sill, shows the diagnosis as vasovagal syncope. (3) SF 558 (Emergency Department Physical Record - Version B), undated, but completed by a physician at Brooke Army Medical Center, Fort Sam Houston. It notes the applicant had had syncope episodes with exercise. She was stable and there was no evidence of cardiac abnormality. REFERENCES: 1. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) sets forth policies, responsibilities, and procedures that govern the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. a. Chapter 3 states the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade or rating. b. Chapter 4 provides guidance on referring Soldiers for evaluation by a medical evaluation board (MEB) when a question arises as to the Soldier's ability to perform the duties of his or her office because of physical disability. 2. Army Regulation 40-501 (Standards of Medical Fitness) provides medical retention standards and is used by MEBs to determine which medical conditions will be referred to a physical evaluation board (PEB). Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement) identifies various medical conditions and provides the standards by which a determination may be made as to passing or failing retention standards. a. Paragraph 3-3 states Soldiers whose medical conditions fail retention standards are to be referred to a PEB as defined in Army Regulation 635-40. The PEB will make the determination of fitness or unfitness. b. Recurrent syncope is a basis for referral to a MEB only when it is cardiovascular in origin. When neurologically based, it falls under the criteria of seizure disorders and epilepsy. Seizures by themselves are not disqualifying unless they are manifestations of epilepsy. c. Regarding the knee, it states the measurement of joint range of motion should be made with a goniometer (an instrument used for the precise measurement of angles) and the knee extension should equal or exceed 15 degrees. d. Chapter 7 provides guidance for the physical profile serial system The profile is based on the function of body systems and their relation to military duties. There are six factors, designated as: * "P" for physical capacity or stamina * "U" for upper extremities * "L" for lower extremities * "H" for hearing * "E" for eyes * "S" for psychiatric e. Each factor is assigned a numerical designation from 1 to 4. * "1" represents a high level of medical fitness * "2" means there are some activity limitations * "3" equates to significant limitation * "4" indicates defects of such severity military duty performance is -drastically limited f. The DA Form 3349 is used to record both permanent and temporary profiles. A profile with a permanent 3 rating for any category requires approval by a physician designated by the military treatment facility commander. All permanent 3 or 4 profiles are reviewed by an MEB physician or physician approval authority. 3. Directive-Type Memorandum (DTM) 11-015 (IDES), in effect at the time, prescribes policies and procedures for the processing of Soldiers with duty-related disabling medical conditions. a. IDES is a joint Department of Defense and VA process by which it is determined if Soldiers who have been wounded, ill, or injured are fit for continued military service. b. In consultation with the Soldier's commander and on approval by the MEB convening authority, a military medical provider refers a Soldier with disabling medical conditions to IDES. (1) The VA provides the medical examinations (identified as Compensation and Pension (C&P) examinations) of the disabling conditions. Then, based on the VA's medical examinations, an MEB makes an assessment to identify those medical conditions which fail to meet medical retention standards. All conditions which fail are referred to a PEB for a fitness determination. (2) Conditions found by the PEB to be unfitting are sent to the VA for a disability rating. In determining the rating(s) to be assigned, the VA uses the VA Schedule for Rating Disabilities (VASRD). (3) Each rated disability is assigned a code by VA in accordance with the schedule of ratings within the VASRD. (4) Upon receipt of the disability rating(s) from VA, the results are finalized and the disposition can include the Soldier being returned to duty or separated (either with severance pay, if the total disability rating is 20 percent or less, or retired, for those cases where the disability rating is 30 percent or higher). 4. 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 in the Army rating. a. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career. b. The VA does not have 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. c. As a result, these two Government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment. 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. 5. Army Regulation 635-5-1 (SPD Codes) states that SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty. The SPD code of "JFV" is the correct code for Soldiers separating under the provisions of paragraph 5-17 of Army Regulation 635-200 . 6. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. Paragraph 2-9 contains guidance on the burden of proof. It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. b. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. DISCUSSION: 1. The applicant requests changes to her DD Form 214 and, in effect, asks that her current reason for separation be voided and replaced with a disability separation. In support of this request, she provides a VA rating and evidence from her military medical records. 2. Army Regulation 635-40 states the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability. It is necessary in each case to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade or rating. Neither the available record nor the evidence submitted by the applicant shows her medical conditions precluded her from performing those duties required by her MOS and grade. 3. For referral into IDES, Army Regulation 40-501 requires: a. A physician to identify any medical conditions which: * individually or in combination, significantly limit or interfere with the Soldier's performance of her duties * may compromise or aggravate the Soldier's health or well-being if the Soldier were to remain in the military service * may compromise the health or well-being of other Soldiers; or may prejudice the best interests of the government if the individual Soldier were to remain in the military service b. Additionally, the regulation requires a DA Form 3349 be generated when the Soldiers is given a permanent 3 rating for any category. Permanent 3 or 4 profiles are reviewed by an MEB physician and are considered a basis for referral to IDES. The applicant offers no proof she was given either a permanent 3 or 4 profile for either ITBS or syncope. c. With regard to her ITBS, apart from one entry on 9 December 2011 where a note was made on an SF 600 stating she was having intermittent knee pain, the medical records she provides are void of any mention of her knee. There is no evidence she failed medical retention standards for ITBS. d. Syncope is not listed uniquely as a medical condition which can fail medical retention standards. Rather, depending on its cause, it can either be considered under conditions of the heart or neurological disorders. Her medical records indicate nothing to suggest her condition was the result of a cardiac abnormality. When syncope is neurological in etiology, it must be linked to epilepsy. She submits no documentation which shows she was diagnosed with epilepsy at any point while on active duty. 4. The applicant provides a rating decision from VA which appears to show she has been awarded service-connected disability compensation for ITBS and syncope effective the day after her discharge. However, an award of a rating by another agency does not establish error in the rating assigned by the Army's disability system. a. Operating under different laws and their own policies, the VA does not have the authority or the responsibility for determining medical unfitness for the military services. b. The VA may award ratings because a medical condition was related to military service (service-connected) and now affects the individual's civilian employability. c. The findings of the VA as to disabling conditions are not binding on the Army and do not require a reassessment of earlier determinations. 5. As to her separation action, the evidence of record shows it was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would have jeopardized her rights. The discharge proceedings were conducted in accordance with applicable law and regulations. Given the basis of this action, items 23, 26 and 28 of her DD Form 214 are appropriate, and no correction is required. 6. Based on the foregoing, there does not appear to be sufficient evidence to support granting the requested relief. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150009365 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150009365 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2