APPLICANT REQUESTS: In effect, the applicant requests physical disability retirement or separation. She states that she did not have a character or behavior disorder, but was mentally ill. The doctor did not examine or test her, but said that he was putting her out of the Army. He did not like women in the Army. She is a paranoid schizophrenic. It was impossible for her to have had a character or behavior disorder. She can not reenlist, get benefits, or obtain medication.
PURPOSE: To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.
EVIDENCE OF RECORD: The applicant's military records are not available. Information contained herein were obtained from the applicants VA records:
A 6 September 1972 report of psychiatric evaluation indicates that the applicant was thoroughly evaluated psychiatrically and determined to have a long standing character and behavior disorder which rendered her unfit for military duty. The severity of her illness is such that she would not respond to any form of rehabilitation, psychiatric or otherwise. The examining psychiatrist recommended against a rehabilitative transfer, in that the applicant would prove disruptive to any unit she would be assigned because of her lack of direction and inability to follow orders. He recommended that she be separated for unsuitability under the provisions of Army
Regulation 635-212.
A 13 October 1972 report of medical examination indicates that the applicant was medically qualified for separation with a physical profile of 1 1 1 1 1 1. In the report of medical history the applicant furnished for the examination, she did not indicate that she had any medical problems.
The applicant received an honorable discharge on
1 November 1972 at Fort Bragg, North Carolina, under the provisions of Army Regulation 635-200, paragraph 13-4c, for unsuitability-apathy defective attitude or inability to expend effort constructively. She had 5 years, 3 months, and 29 days of service, with 31 days of lost time.
A VA medical report indicates that the applicant was hospitalized for 30 days in 1978 because of withdrawal, hallucinations, and suicidal attempt. She was diagnosed as having a schizo-affective disorder. At the time of her discharge she was not suicidal nor dangerous to others, nor was she psychotic; there were no behavior disorders noted.
A 12 September 1979 VA rating decision awarded the applicant a 10 percent service connected disability for bronchitis, and a 30 percent nonservice connected disability for depressive psychoneurosis; character and behavior disorder, and zero percent for a kidney infection.
A VA rating decision of 10 August 1989 for bronchitis noted that a court had found the applicant to be of unsound mind and had appointed a guardian for her in 1982. She was confined to a state mental hospital. She was found incompetent by the VA.
A 5 February 1993 medical report indicates that the applicants mental diagnoses were schizophrenia and schizo-affective disorder.
On 16 November 1994 the VA notified a member of congress (MC) that the applicant was receiving a 10 percent service connected disability for bronchitis; however, that service connection for a nervous disorder was denied on 2 July 1991, and that that decision was upheld by the Board of Veterans Appeals on 24 March 1992. The VA informed the MC that the
applicant had not furnished medical evidence to show that her condition was incurred in or aggravated by military service.
On 21 November 1995 the VA denied the applicants request for an increased evaluation for service connected bronchitis, which was then rated as 10 percent disabling.
Army Regulation 635-200 sets forth the policy and
prescribes the procedures for administrative separation
of enlisted personnel. Chapter 13, in effect at that
time, applied to separation for unsuitability. At that time, paragraph 13-4c provided for the separation of individuals whose record evidenced apathy (lack of appropriate interest), defective attitudes, and an inability to expend effort constructively. A member separated for unsuitability will be furnished an honorable or general discharge certificate as warranted by the soldiers military record.
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. Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.
In the processing of this case, a staff advisory opinion (COPY ATTACHED) was obtained from the Office of the Surgeon General. It contains no information, advice or recommendation which would constitute a basis for granting the relief requested or for excusing the applicant's failure to timely file.
DISCUSSION: The alleged error or injustice was, or with reasonable diligence should have been discovered on
1 November 1972, the date of her discharge. The time for the applicant to file a request for correction of any error or injustice expired on 1 November 1975.
The application is dated 12 October 1995 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.
DETERMINATION: The subject application was not submitted within the time required. The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.
BOARD VOTE:
EXCUSE FAILURE TO TIMELY FILE
GRANT FORMAL HEARING
CONCUR WITH DETERMINATION
Karl F. Schneider
Acting Director
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