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ARMY | BCMR | CY1990-1993 | 9306118A
Original file (9306118A.rtf) Auto-classification: Denied
MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 28 October 1998
         DOCKET NUMBER: AC93-0611A


         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. Loren G. Harrell Director
Ms. P. A. Castle Analyst


The following members, a quorum, were present:

Ms. JoAnn H. Langston Chairperson
Mr. Curtis W. Barbee Member
Mr. Raymond V. O’Connor, Jr. 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 : In effect, reconsideration of his previous request to correct his records by showing that he was separated due to physical disability.

APPLICANT STATES : In effect, that since the Board’s denial in 1994 he has submitted two requests for reconsideration with new evidence but received no reply. He demands reconsideration for a medical discharge based on the new evidence regarding his current medical condition.

NEW EVIDENCE OR INFORMATION : Incorporated herein by reference are military records which were summarized in a memorandum of consideration (MOC) prepared to reflect the Board's original consideration of his case on 23 November 1994 (COPY ATTACHED).

In support of his application the applicant submits a VA rating decision dated 16 February 1996 which grants 100 percent evaluation of service connected nervous disorder from 25 November 1992, but denies entitlement to monthly compensation. A letter enclosed dated March 1996 from the VA advises the applicant of a retroactive benefit payment of $71,490.00.

He further submits a May 1996 letter addressed to the VA and the surgeon general’s office appealing his discharge and demanding he be given a medical discharge based on his own contentions and a letter he enclosed. The May 1995 letter is from a physician who states the applicant suffers from schizoaffective schizophrenia, manifested by depression, hallucinations, sever insomnia, paranoid delusions, and suicidal/homicidal ideation. Further enclosures are letters to the VA where the applicant contends that the settlement of $71,490.00 should have been from 1976 when his condition was originally rated by the VA at 0 percent.

Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel. Chapter 5 of the regulation provided, at that time, for the administrative separation of individuals who had demonstrated during the first 180 days of training that they lacked the necessary motivation, discipline, ability or aptitude to become effective soldiers. This program, known as the Trainee Discharge Program, mandated the award of an honorable discharge.

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 law and regulations cited in the Board’s prior consideration of the applicant’s case make it clear that to be separated for physical disability a soldier must be physically unable to perform duty and that the presence of a medical condition that was acquired or aggravated while entitled to basic pay does not necessarily require an medical evaluation board or qualify an individual for physical disability.

2. The Board’s original consideration explains that the Military and VA systems are essentially different. The rating action by the VA does not necessarily demonstrate any error or injustice in the Army rating. The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit. Any rating action by the VA does not compel the Army to modify its rating.

3. The applicant did not have any medical unfitting disability which required physical disability processing. Therefore, there is no basis for physical disability retirement or separation. There is no right to a medical evaluation board. Individuals are referred to a medical evaluation board when, in the opinion of their attending military doctors, a medical condition may make them incapable of performing duty.

4. Prior to reaching the determination that it was not in the interest of justice to excuse the failure to timely file, the Board looked at the entire file. It was only after all other aspects had been considered and it had been concluded that there was no basis to recommend a correction of the records that the Board considered the statute of limitations. Had the Board determined that an error or injustice existed it undoubtedly would have recommended relief in spite of the failure to submit the application within the 3 year time limit. The Board has never denied an application simply because it was not submitted within the required time.

5. The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its pervious decision.

6. 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

__ JHL ___ ___ CWB _ ___ RVO __ DENY APPLICATION




                                                      Loren G. Harrell
                                                      Director



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