ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	

	BOARD DATE:  11 October 2019

	DOCKET NUMBER:  AR20170001771


APPLICANT REQUESTS:  Reconsideration of his previous request for change of 
narrative reason for separation from not a disability to disability.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record)
*	Army Review Boards Agency (ARBA) letter, 8 February 2017

FACTS:

1.  Incorporated herein by reference are military records which were summarized in the 
previous consideration of the applicant's case by the Army Board for Correction of 
Military Records (ABCMR) in Docket Number AR20110023804 on 31 May 2012.

2.  The applicant states he believes the record to be unjust because he was not properly 
diagnosed at the time of his separation.  Had he been diagnosed properly of having 
severe narcolepsy with cataplexy, the veteran affairs is fully compensating him for now.  
He would not have been chaptered out, instead he would have been made eligible to go 
through the medical board.  Thus, he would not be held liable for the signing bonus he 
received when he enlisted.  He has sent documents in June as evidence for his request 
with the help of Congressman Sw__’s office in Pleasanton, CA.  No documents were 
attached to this case.

3.  The applicant provides a letter from ARBA, dated 8 February 2017 stating his 
application had been received.

4.  A review of the applicant’s service records shows the following:

	a.  He enlisted in the Regular Army on 2 November 2009.

	b.  A DA Form 3349 (Physical Profile), dated 2 August 2010, shows he was given a 
temporary profile that expired on 11 September 2010.  The profile indicated he was not 
able to move at least two miles with a fighting load and was able to walk at his own 
pace and distance as tolerated by pain.

	c.  The applicant completed a DA Form 2823 (Sworn Statement) on 
24 September 2010 stating in effect he is not able to perform his duties as a Soldier.

	d.  A DA Form 4856 (Developmental Counseling Form), dated 24 September 2010, 
shows he was counseled on that date by his supervisor, a sergeant first class (SFC).  
The SFC stated the applicant did not have a profile that prevented him from deploying, 
that he had gone on sick call several times to try and get a profile, and when asked 
about his physical and mental condition the applicant had stated he did not want to 
deploy because he was not ready mentally or physically and that he wanted to get out 
of the Army under paragraph 5-17.

	e.  On 30 September 2010, the applicant underwent a mental health evaluation at 
the request of the commander who was considering separation under the provisions 
(UP) of Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel) 
chapter 13, for unsatisfactory performance.  The examining psychologist stated:

*	the applicant had an adjustment disorder
*	met the retention requirements of AR 40-501 (Standards of Medical Fitness), 
chapter 3 and did not require a medical evaluation board
*	did not have a psychiatric condition that warranted disposition through 
medical channels
*	he was psychiatrically cleared the applicant for any administrative action as 
deemed appropriate
*	emotionally and behaviorally disabled Soldiers are at high risk to continue to 
engage in self-destructive and disruptive behaviors
*	command is advised to consider an expeditious separation to be in the best 
interest of the Soldier and the unit
*	continued military service would keep him at risk and continue to be a burden 
to the unit

	f.  On 19 November 2010, the applicant underwent a second command directed 
evaluation.  The applicant stated he very much wanted out of the Army because he is 
very stressed out and had been taking Xanax for his anxiety.  Also, he cannot sleep at 
night because of lower back pain.  The psychologist stated:

*	he was cleared for a chapter 13 on 30 September 2010, per a phone contact 
on 3 November 2010, the command would like him to be assessed for a 
possible chapter 5-17
*	meets the retention requirements of Chapter 3, AR 40-501 and does not 
require a MEB
*	he is psychiatrically cleared for any administrative action is deemed 
appropriate by command
*	his present state of emotional and/or behavioral dysfunction is of such 
severity that the Soldier's ability to perform military duties is significantly 
impaired
*	this condition meets the criteria set forth in AR 635-200, Chapter 5-17 for 
administrative separation

	g.  On 26 January 2011, he was notified by his immediate commander that 
discharge action was being initiated against him UP of AR 635-200, paragraph 5-17, for 
other designated physical or mental conditions.  The specific reason noted was the 
applicant's diagnosis of adjustment disorder with anxiety.

	h.  On 28 January 2011, he acknowledged notification of his proposed discharge 
from the Army.  He subsequently consulted with legal counsel and he was advised of 
the basis for the contemplated separation from the Army, the effect on future enlistment 
in the Army, and of the procedures and rights that were available to him.  He declined to 
submit a statement on his own behalf.  He also understood that he would be ineligible 
for enlistment in the US Army for a period of 2 years after discharge.

	i.  On 15 February 2011, the separation authority approved his discharge UP of 
AR 635-200, paragraph 5-17, and directed issuance of an Honorable Discharge 
Certificate.

	j.  On 17 February 2011, he was discharged accordingly.  His DD Form 214 confirms 
he was discharged by reason of a condition - not a disability UP of AR 635-200, 
paragraph 5-17, with an honorable characterization of service.  He completed 1 year, 
3 months, and 16 days of creditable active service.

5.  On 5 June 2012, the applicant was notified that the Army Board for Correction of 
Military Records on 31 May 2012 the Board considered his application under 
procedures established by the Secretary of the Army, and the application was denied.

6.  By regulation, AR 635-200 sets forth the basic authority for the separation of enlisted 
personnel.  Paragraph 5-17 provides for the separation of Soldiers on the basis of other 
physical or mental conditions not amounting to disability that potentially interfere with 
assignment to or performances of duty.  Such conditions may include, but are not 
limited to, disorders manifesting disturbances of perception, thinking, emotional control 
or behavior sufficiently severe that the Soldier’s ability to effectively perform military 
duties is significantly impaired.

	a.  AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 
governs the evaluation of physical fitness of Soldiers who may be unfit to perform their 
military duties because of physical disability.  It states medical evaluation boards (MEB) 
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 
qualification for retention based on the criteria in AR 40-501, chapter 3.

	b.  Paragraph 3-1 provides that 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.  The Army must find that a service member is physically 
unfit to reasonably perform his or her duties and assign an appropriate disability rating 
before that service member can be medically separated or retired.

	c.  AR 40-501, paragraph 3-36, states an adjustment disorder does not render an 
individual unfit because of physical disability, but may be the basis for administrative 
separation if recurrent and causes interference with military duty.

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board determined that 
relief was not warranted.  Based upon the documentary evidence provided by the 
applicant for reconsideration, the Board concluded that there was no new evidence to 
demonstrate that the previous ABCMR decision was an error or injustice which would 
warrant making a change to the military record of the applicant.  

The Board wished to inform the applicant that the VA and the DoD measure disability 
rating in different ways for different reasons.

BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

: X:	X:	X	DENY APPLICATION



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.
	  
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.

REFERENCES:

1.  Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel) sets 
forth the basic authority for the separation of enlisted personnel.  Paragraph 5-17 
provides for the separation of Soldiers on the basis of other physical or mental 
conditions not amounting to disability that potentially interfere with assignment to or 
performances of duty.  Such conditions may include, but are not limited to, disorders 
manifesting disturbances of perception, thinking, emotional control or behavior 
sufficiently severe that the Soldier’s ability to effectively perform military duties is 
significantly impaired.

2.  AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs 
the evaluation of physical fitness of Soldiers who may be unfit to perform their military 
duties because of physical disability.  It states medical evaluation boards (MEB) 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 
qualification for retention based on the criteria in AR 40-501, chapter 3.  Paragraph 3-1 
provides that 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.  The Army must find that a service member is physically unfit to 
reasonably perform his or her duties and assign an appropriate disability rating before 
that service member can be medically separated or retired.

3.  AR 40-501 (Standards of Medical Fitness), paragraph 3-36, states an adjustment 
disorder does not render an individual unfit because of physical disability, but may be 
the basis for administrative separation if recurrent and causes interference with military 
duty.

NOTHING FOLLOWS

ABCMR Record of Proceedings (cont)	 AR20170001771

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