IN THE CASE OF: 
BOARD DATE: 4 January 2023 
DOCKET NUMBER: AR20220006664 


APPLICANT REQUESTS: reconsideration of her prior request for correction of item 28 (Narrative Reason for Separation) of her DD Form 214 (Certificate of Release or Discharge from Active Duty) to show she was discharged from the Army because of a service-connected disability. 

APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: 
DD Form 149 (Application for Correction of Military Record) 

FACTS: 

1.Incorporated herein by reference are military records which were summarized in theprevious consideration of the applicant's case by the Army Board for Correction ofMilitary Records (ABCMR) in Docket Number AR20150016377 on 2 March 2017.

2.The applicant states she was discharged from medical reasons and awarded 100percent disability compensation less than 90 days of separation. Therefore, she shouldbe considered service connected.

3.The applicant underwent a medical examination on 29 March 2007 for the purposeof enlistment in the Regular Army. Her DD From 2807-1 (Report of Medical History)shows she indicated she was in good health with a history of hernia repair at age 5. Thecorresponding DD Form 2808 (Report of Medical Examination) shows she was foundqualified for service and assigned a physical profile of 111111.

A physical profile, as reflected on a DA Form 3349 (Physical Profile) or DD Form 2808, is derived using six body systems: "P" = physical capacity or stamina; "U" = upper extremities; "L" = lower extremities; "H" = hearing; "E" = eyes; and "S" = psychiatric (abbreviated as PULHES). Each body system has a numerical designation: 1 meaning a high level of fitness; 2 indicates some activity limitations are warranted, 3 reflects significant limitations, and 4 reflects one or more medical conditions of such a severity that performance of military duties must be drastically limited. Physical profile ratings can be either permanent or temporary. 

4.The applicant enlisted in the Regular Army for a period of 4 years effective
30 April 2007. She completed her required training and was assigned to Fort Hood, TX effective 1 October 2007.  

5.A Memorandum from the Medical Department Activity, Fort Hood, TX, shows theapplicant was placed on the Command Interest Profile on 24 March 2008. The medicalofficial’s evaluation found she did not pose an imminent risk to herself or other andrecommended her removal from the Command Interest Profile on 26 March 2008 withfurther evaluation scheduled for 31 March 2008.

6.A DA Form 4856 (Developmental Counseling Form), dated 26 April 2008, shows theapplicant was counseled to inform her she was being recommended for administrativeseparation from the Army. She acknowledged the counseling with her signature.

7.The applicant was notified on 30 April 2008 action to separate her from the Armyunder the provisions of Army Regulation (AR) 635-200, Chapter 5, Section III,Paragraph 5-17 for other designated physical or mental condition as she was diagnosedas having major depressive disorder, resulting from long-term difficulties transition to theArmy. She was advised she was recommended for an honorable characterization ofservice. She was advised she had the right to consult with consulting counsel, couldsubmit written statements on her own behalf, could obtain copies of documents thatwould be sent to the separation authority, could waive her rights in writing and couldwithdraw any such waiver at any time prior to the date the separation authority orders,directs, or approves separation. She was advised she could elect to undergo a medicalexamination prior to separation. She was advised she was required to undergo a MentalStatus Evaluation. She acknowledged receipt with her signature.

8.The applicant consulted with counsel prior to submitting her elections. She elected towaive consideration of her case by an administrative separation board and a personalappearance before such a Board. She elected not to submit statement on her ownbehalf.

9.A Commanders Worksheet shows the applicant had been provided a rehabilitationtransfer. It also states she served honorably but medical evaluation has determined toseparate her.

10.The appropriate authority initiated separation under AR 635-200, Chapter 5-17 on
5 May 2008, stating specifically the applicant was diagnosed as having majordepressive disorder. Her separation was approved on 7 May 2008.

11.The applicant was honorably discharged on 9 May 2008 under the provisions of AR635-200, paragraph 5-17 for condition, not a disability.

12.Army Regulation 15-185 (Army Board for Correction of Military Records) prescribesthe policies and procedures for correction of military records by the Secretary of theArmy acting through the ABCMR. Paragraph 2-11 states applicants do not have a rightto a formal hearing before the ABCMR. The Director or the ABCMR may grant a formalhearing whenever justice requires.

13.The Army rates only conditions determined to be physically unfitting at the time ofdischarge, which disqualify the Soldier from further military service. The Army disabilityrating is to compensate the individual for the loss of a military career. The VA does nothave authority or responsibility for determining physical fitness for military service. TheVA may compensate the individual for loss of civilian employability.

14.Title 38, U.S. Code, Sections 1110 and 1131, permit the VA to award compensationfor disabilities which were incurred in or aggravated by active military service. However,an award of a VA rating does not establish an error or injustice on the part of the Army.

15.Title 38, CFR, Part IV is the VA’s schedule for rating disabilities. The VA awardsdisability ratings to veterans for service-connected conditions, including those conditionsdetected after discharge.  As a result, the VA, operating under different policies, mayaward a disability rating where the Army did not find the member to be unfit to performhis duties.  Unlike the Army, the VA can evaluate a veteran throughout his or herlifetime, adjusting the percentage of disability based upon that agency's examinationsand findings.

16.MEDICAL REVIEW:

a.The applicant is applying to the ABCMR for reconsideration of her prior request forcorrection of item 28 (Narrative Reason for Separation) of her DD214 Form to show she was discharged from the Army because of a service-connected disability. 

b.The specific facts and circumstances of the case can be found in the ABCMRRecord of Proceedings (ROP). Pertinent to this advisory are the following: 1) The applicant enlisted in the Regular Army 30 April 2007; 2) The applicant was notified on 26 April 2008 that she was being recommended for an administrative separation from the Army; 3) The applicant was honorably discharged on 09 May 2008 with a Chapter 5-17 for a condition, not a disability; 4) The applicant’s request for a reconsideration for the narrative reason for her separation was denied by the ABCMR on 08 March 2017. 

c.The Army Review Board Agency (ARBA) Medical Advisor reviewed the supportingdocuments and the applicant’s military service records. The Armed Forces Health Longitudinal Technology Application (AHLTA) and VA’s Joint Legacy Viewer (JLV) were also reviewed. 
d.The applicant was first seen by a behavioral health provider while on activeservice on 07 November 2007 for symptoms of depression related to a previous miscarriage and resulting medical complications. There was evidence she was prescribed Celexa on 09 November 2007, and she was diagnosed with depression. She was referred to a civilian network provider, but she did not continue with individual therapy consistently.  

e.Then on 24 March 2008, she was seen again for increased psychiatricsymptomatology. In this session, she reported hypersomnia (sleeping 10+ hours a day), mood swings, irritability, erratic appetite, racing thoughts, difficulty concentrating, visual hallucinations, and “her brain feels unusual.” She denied any suicidal or homicidal thoughts, but she repeatedly stated she felt “the only way anyone would listen to her is if she hurt herself.” She also stated that she was avoiding others in her unit for “fear she would snap and hurt someone if they aggravated her.” Since her previous encounter in November, she had also prescribed Paxil, Wellbutrin, and Seroquel.  She was non-compliant with these medications due to not being able to tolerate the side effects.  She was described as appearing tired, disheveled, and unkempt. Her behavior demonstrated psychomotor agitation, and she was very irritable. She was diagnosed again with depression. Her command was notified of the applicant’s condition, and she was placed on 1:1 watch and recommended for a reevaluation the following day.  

f.On 25 March 2008, she was seen again as recommended. Her irritability andagitation had only increased. She was reporting an increase in paranoid and confusing thoughts. She believed that no one was listening or responding to her concerns, and she wanted to be hospitalized to receive a brain scan. She was very belligerent and escorted by a member of her unit. She was diagnosed again with depression.  

g.The next day on 26 March 2008, she was evaluated for her suitability of continuedmilitary service.  There was clear documentation of the applicant’s presenting symptomatology the two days prior. In addition, she reported banging her head on the wall due to her racing and confusing thoughts. She also described feeling as if her head was “constantly having water poured on it” and her brain was “constantly changing channels on the left-side and the right-side could not keep up or stop it.”  She was provided psychological testing, but the testing was invalid due to the applicant’s response style. The applicant’s behavioral health symptoms were attributed to a difficulty transitioning to the Army. She was diagnosed with major depressive disorder and recommended for a Chapter 5-17 and her command was notified.  The applicant was only seen for one other appointment for a group therapy session.  She was seen on 06 MAY 2008 at the Emergency Room for increased paranoid thoughts, agitation, anxiety. She was released to her unit and discharged from active service a few days later. 

h.A review of JLV provided evidence the applicant was diagnosed withschizoaffective disorder by the VA on 24 April 2009. She receives 100% service-connected disability for this condition. She is actively engaged in multiple modalities of treatment for this disorder. 

i.Based on the available information and out of an abundance of caution, it is theopinion of the Agency BH Advisor that there is sufficient evidence to support the applicant was experiencing a behavioral health condition that warrants a referral to IDES for consideration for a MEB/PEB.  

Kurta Questions 

A.Did the applicant have a condition or experience that may excuse or mitigate thedischarge? Yes, the applicant was experiencing severe psychiatric symptomswhile on active service.



B.Did the condition exist or experience occur during military service?  Yes, there issufficient evidence the applicant repeatedly endorsed behavioral healthsymptoms while on active duty. In addition, she receives service-connecteddisability for schizoaffective disorder.



C.Does the condition experience actually excuse or mitigate the discharge? Yes.There is sufficient evidence that the applicant was experiencing a severebehavioral health condition that warrants a referral to IDES for consideration for aMEB/PEB.




BOARD DISCUSSION: 

1.After reviewing the application, all supporting documents, and the evidence foundwithin the military record, the Board found that partial relief was warranted. The Boardcarefully considered through counsel the applicant's record of service, documentssubmitted in support of the petition and executed a comprehensive and standard reviewbased on law, policy and regulation.  Upon review through counsel of the applicant’spetition, available military records and the medical advisory the Board concurred withthe advising official finding here is sufficient evidence to support the applicant wasexperiencing a behavioral health condition that warrants a referral to IDES forconsideration for a MEB/PEB. Based upon the preponderance of the evidence, theBoard agreed the applicant’s record should be referred to the Office of the SurgeonGeneral for medical evaluation consideration, with all relief dependent upon a final medical determination. Therefore, the Board granted partial relief. 

2.Referral to the IDES occurs when a Soldier has one or more conditions whichappear to fail medical retention standards as documented on a duty liming permanentphysical profile.  The DES compensates an individual only for service incurred medicalcondition(s) which have been determined to disqualify him or her from further militaryservice.  The DES has neither the role nor the authority to compensate servicemembers for anticipated future severity or potential complications of conditions whichwere incurred or permanently aggravated during their military service; or which did notcause or contribute to the termination of their military career.  These roles andauthorities are granted by Congress to the Department of Veterans Affairs and executedunder a different set of laws.


BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

: : : GRANT FULL RELIEF 

:X :X :X GRANT PARTIAL RELIEF 

: : : GRANT FORMAL HEARING 

: : : DENY APPLICATION 


BOARD DETERMINATION/RECOMMENDATION: 

The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by referring her records to The Office of the Surgeon General for review to determine if she should have been discharged or retired by reason of physical disability under the Integrated Disability Evaluation System (IDES).  

a.In the event that a formal physical evaluation board (PEB) becomes necessary,the individual concerned will be issued invitational travel orders to prepare for and participate in consideration of her case by a formal PEB.  All required reviews and approvals will be made subsequent to completion of the formal PEB.  

b.Should a determination be made that the applicant should have been separatedunder the IDES, these proceedings will serve as the authority to void his administrative separation and to issue her the appropriate separation retroactive to her original separation date, with entitlement to all back pay and allowances and/or retired pay, less any entitlements already received. 

2.The Board further determined the evidence presented is insufficient to warrant a
portion of the requested relief.  As a result, the Board recommends denial of so much of
the application that pertains to discharged from the Army because of a service-connected disability.



Microsoft Office Signature Line...
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), setsforth the basic authority for the separation of enlisted personnel. Chapter 5, Paragraph5-17 states: Commanders specified in paragraph 1–19 may approve separation underthis paragraph on the basis of other physical or mental conditions not amounting todisability (AR 635–40) and excluding conditions appropriate for separation processing under paragraph 5–11 or 5–13 that potentially interfere with assignment to or performance of duty. Such conditions may include, but are not limited to— 

•chronic airsickness

•chronic seasickness

•enuresis

•sleepwalking

•dyslexia

•severe nightmares

•claustrophobia

•other disorders, manifesting disturbances of perception, thinking, emotional.control or behavior sufficiently severe that the Soldier's ability to effectivelyperform military duties is significantly impaired



2.Title 10, USC, chapter 61, provides the Secretaries of the Military Departments withauthority to retire or discharge a member if they find the member unfit to perform militaryduties because of physical disability. The U.S. Army Physical Disability Agency isresponsible for administering the Army physical disability evaluation system andexecutes Secretary of the Army decision-making authority as directed by Congress inchapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-40(Physical Evaluation for Retention, Retirement, or Separation).

a.Soldiers are referred to the disability system when they no longer meet medicalretention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in an MEB; when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an MOS Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. 

b.The disability evaluation assessment process involves two distinct stages: theMEB and 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 either are 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 upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. 

 c.  The mere presence of a 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 or 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.  Title 38 USC, section 1110 (General - Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 
 
4.  Title 38 USC, section 1131 (Peacetime Disability Compensation - Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 
 
5.  AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army 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. 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. Once a determination of physical unfitness is made, all disabilities are rated using the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD). 
 
 a.  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 who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. 
b.Soldiers who sustain or aggravate physically unfitting disabilities must meet thefollowing line-of-duty criteria to be eligible to receive retirement and severance pay benefits: 

(1)The disability must have been incurred or aggravated while the Soldier wasentitled to basic pay or as the proximate cause of performing active duty or inactive duty training. 

(2)The disability must not have resulted from the Soldier's intentionalmisconduct or willful neglect and must not have been incurred during a period of unauthorized absence. 

6.AR 40-501 (Standards of Medical Fitness) governs medical fitness standards forenlistment, induction, appointment (including officer procurement programs), retention,and separation (including retirement). The Department of Veterans Affairs Schedule forRating Disabilities (VASRD). VASRD is used by the Army and the VA as part of theprocess of adjudicating disability claims. It is a guide for evaluating the severity ofdisabilities resulting from all types of diseases and injuries encountered as a result of orincident to military service. This degree of severity is expressed as a percentage ratingwhich determines the amount of monthly compensation.

7.Section 1556 of Title 10, USC, requires the Secretary of the Army to ensure that anapplicant seeking corrective action by the Army Review Boards Agency (ARBA) beprovided with a copy of any correspondence and communications (including summariesof verbal communications) to or from the Agency with anyone outside the Agency thatdirectly pertains to or has material effect on the applicant's case, except as authorizedby statute. ARBA medical advisory opinions and reviews are authored by ARBA civilianand military medical and behavioral health professionals and are therefore internalagency work product. Accordingly, ARBA does not routinely provide copies of ARBAMedical Office recommendations, opinions (including advisory opinions), and reviews toArmy Board for Correction of Military Records applicants (and/or their counsel) prior toadjudication.
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