APPLICANT REQUESTS: That the general discharge he received for unsuitability be corrected to a medical discharge.
APPLICANT STATES: That the Board of Veterans Appeals (BVA) has determined that he has a service related disability.
In support of his application he submits the BVA ruling. In the BVAs decisional document, it is noted that the applicants medical records contain a report of mental status evaluation dated in October 1979 which showed the applicant to have normal behavior and to be fully alert and fully oriented. His mood was level, his thinking processes were clear with normal thought content and good memory. It was concluded that the applicant had no significant mental illness. However, the BVA determined on 30 September 1994, based upon its review of the relevant evidence, that the applicant has chronic schizophrenia which first manifested itself during his active military service.
EVIDENCE OF RECORD: The applicant's military records show:
That he enlisted in the Regular Army on 22 June 1976, was awarded the military occupational specialty of cannon crewman and was promoted to pay grade E-4.
The applicant accepted punishment on two occasions for violations which included failure to go at the time prescribed to his appointed place of duty (a total of four specifications), disobeying a lawful order, and making a false statement.
The applicant was formally counseled on eight occasions for various infractions and was barred from reenlistment.
On 17 October 1979 he was notified of his commanders intent to recommend his involuntary separation due to unsuitability and of his rights in conjunction with that recommendation. He waived those rights.
His commander then recommended his discharge, stating that he was immature and irresponsible, that he had neglected his duties, that his actions had resulted in damage to government vehicles, that he was not self-motivated, and that he required constant supervision.
That recommendation was approved by the appropriate authority and the applicant was issued a General Discharge Certificate for unsuitability, apathy, defective attitude or inability to expend effort constructively. He had 3 years, 4 months and 28 days of active military service.
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 he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation.
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 individuals 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.
On 22 July 1994 the Army Discharge Review Board denied the applicants request to change the narrative reason for his discharge and to upgrade his general discharge to fully honorable.
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. The applicant was never determined to be medically unfit and, therefore, 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 fact that the VA granted the applicant service connection for his schizophrenia is the prerogative of that agency and was accomplished within the scope of the laws and regulations governing that department. That determination is not sufficient, in itself, to persuade the Board to grant the applicants request, as it does not establish that the applicant was physically unfit while he was on active duty, the prerequisite for a discharge or retirement for medical unfitness, nor does it definitively establish to the satisfaction of this Board that the applicants condition actually existed while he was on active duty.
3. In view of the foregoing, there is no basis for granting the applicants 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
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