APPLICANT REQUESTS:  That his general discharge be corrected to a medical discharge.

APPLICANT STATES:  That the trouble he got into while in the Army was due to a severe mental disorder he was suffering from over which he had no control, that condition later being diagnosed as bipolar disorder with psychotic features.

In support of his request the applicant submits a decision by the Board of Veterans Appeals (BVA) (COPY ATTACHED) in which he is granted service connection for bipolar disorder.  In the BVA proceedings, the applicant’s two plus years of unblemished service was noted, with sudden, pronounced disciplinary and attitude changes apparent when he came back to the United States from Korea.  The BVA also determined that the applicant demonstrated the onset of a mental disturbance while in the service and that the currently diagnosed (in 1985) bipolar disorder could not be disassociated from the mental disturbance manifested in service.

EVIDENCE OF RECORD:  The applicant's military personnel and medical records show:

He enlisted in the Regular Army on 21 November 1974, was awarded the military occupational specialty of infantryman, and was promoted to pay grade E-4, but was later reduced to pay grade E-3 as a result of nonjudicial punishment (NJP).

The applicant served his enlistment without incident, receiving an above average enlisted evaluation report, until 27 April 1977, the date he accepted NJP for being AWOL from 5 to 19 April 1977, and for his willful disobedience of a lawful order.  He had returned to the United States from an assignment in Korea on 31 May 1976.

On 17 May 1977 the applicant’s commander notified him of his intent to recommend his discharge under the expeditious discharge program (EDP), and of his rights in conjunction with that recommendation.  The applicant waived his rights and consented to the recommended discharge.

The applicant’s commander then recommended his discharge.  In that recommendation his commander stated that the applicant had been counseled on five occasions between 10 February and 17 May 1977 for insubordination, appearance, negative attitude towards the Army, AWOL, poor duty performance, and shirking.  The commander’s recommendation was approved by the appropriate authority, and the applicant was issued a General Discharge Certificate on 27 May 1977.  He had completed 2 years, 5 months and 23 days of creditable service and had 14 days of lost time. 

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  That regulation, in effect at the time, provided, in pertinent part, for the expeditious discharge of soldier’s who had served at least 6 but not more than 36 months of continuous active duty on their first enlistment in the Army, and who had demonstrated poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential.  When separation was directed under those provisions, an Honorable or General Discharge Certificate could be issued, as appropriate.

Army Regulation 40-501, paragraph 3-32, affective (mood) disorders, states that the persistence or recurrence of symptoms sufficient to require extended or recurrent hospitalization, the necessity for limitations of duty, or behavior resulting in interference with effective military performance is considered medically disqualifying.

Army Regulation 635-40 provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board.  Those members who do not meet medical retention standards will be referred to a physical evaluation board for a determination of the percentage of disability to be awarded.  This regulation also provided in pertinent part that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the person physically unfit.
Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while performing active or inactive (weekend drill) duty.

Title 38, United States Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual’s medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, it is concluded:

1.  There is no indication that the applicant was ever determined to be medically unfit while on active duty.  Therefore, he was not referred to a medical evaluation board.  Absent this referral, the applicant was not eligible for separation by reason of physical unfitness.

2.  The applicant’s insubordination upon his transfer to the United States could be contributed to a variety of reasons, many of which would be attributed to a simple change of attitude, such as a dislike of present circumstances or unit members, not medical or psychiatric problems.  As such, this Board must discount the applicant’s contention that his insubordination is evidence that the onset of his bipolar disorder occurred while he was on active duty.



3.  The applicant’s mental condition, to have been classified as unfitting, would have had to have been persistent, or would have had to have exhibited evidence of recurrence of symptoms sufficient to have required extended or recurrent hospitalization, or would have had to have required limitations of duty, or would have had to have been of the severity to where the applicant exhibited behavior resulting in the interference with effective military performance.  The applicant’s records do not show any such indications of such conditions.  To the contrary, it appears that he would not, rather than could not, comply with the rules and regulations of the Army.

4.  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

                       DENY APPLICATION




						Karl F. Schneider
						Acting Director