APPLICANT REQUESTS:  In effect, physical disability retirement or separation.  

APPLICANT STATES:  The present discharge is inequitable.  She developed a medical condition while on active duty, and that condition has prevented her from living a normal life.

COUNSEL CONTENDS:  Counsel supports the applicant’s request.

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant enlisted in the Army Reserve in December 1972, served on active duty from February through November 1973, when she was honorably discharged.  She reenlisted on 
8 August 1974, served two tours of duty in Korea, among other locations, and attained the grade of E-4.

A 7 November 1979 medical report indicates that the applicant was admitted to the emergency room of a medical battalion for evaluation of drug intoxication.
A 7 November 1979 psychiatric report indicates that the applicant had a long history of mixed drug abuse.       

On 28 December 1979 the applicant was barred from reenlisting.  That action indicates that she had received nonjudicial punishment under Article 15, UCMJ, for failure to go to her place of duty, that she had been formally counseled on five occasions regarding her duty performance, absenteeism, and attitude; and received many verbal counselings for the same reasons.

A 13 February 1980 psychiatric report indications that the applicant was very nervous, getting a lot of pressure from the Army, and that in the past she had attempted suicide.  The examining official also stated that she had a lot of hostility from outside forces. 


A 5 March 1980 report of mental status evaluation indicates that the applicant was mentally responsible, able to distinguish right from wrong and able to adhere to the right, had the mental capacity to understand and participate in board proceedings, and met the medical standards for retention in the Army.  The examining psychiatrist diagnosed the applicant as having an adjustment disorder of adult life manifested by psychosomatic symptoms, depression, paranoid ideation, continual drug abuse.  He went on to say that with her recent history of multiple cumulative behavior which she chose not to change, he anticipated very poor future adaptability to the Army and recommended that she be considered for administrative discharge.

On 18 March 1980 the applicant’s commanding officer recommended that the applicant be eliminated from the Army under the provisions of Army Regulation 635-200, paragraph 13-4b, for unsuitability.  That individual stated that the applicant had a personality disorder as diagnosed by medical authority, that she had the opportunity to work under the supervision of numerous NCO’s and officers, and that repetitive counseling was to no avail.  He stated that her conduct was unsatisfactory and her performance, average.
Attachments to his request show that the applicant had missed formations on numerous occasions, had left her place of duty without authorization on various occasions, indicating a pattern of malingering.

The applicant consulted with counsel and stated that she had been advised of the basis for the contemplated action, its effects and the rights available to her.  She waived consideration of her case before a board of officers and declined to submit statements in her own behalf.

On 19 March 1980 the separation authority approved the recommendation and directed that the applicant receive an Honorable Discharge Certificate.  


A 25 March 1980 report of medical examination indicates that the applicant was medically qualified for separation with a physical profile of 1 1 1 1 1 1.

She was discharged at Oakland Army Base, California on 
9 April 1980 for unsuitability because of a personality disorder.  She had 6 years, 5 months, and 4 days of service.

On 12 February 1982 the Army Discharge Review Board determined that the applicant’s discharge was proper, but directed that the reason for her discharge be changed from that of a personality disorder to unsuitability - apathy defective attitude or inability to expend effort constructively.

On 1 June 1994 the VA awarded the applicant a 20 percent service connected disability rating from January 1993 for ventral hernia, postoperative. 

On 29 March 1995 the VA confirmed the denial of the applicant’s request for service connection for an acquired psychiatric disorder, stating that an acquired psychiatric condition/psychosis was not incurred in or aggravated by her military service.  That rating decision indicated that the applicant had numerous hospitalizations for schizophrenia, and schizo-affective disorder from 1987 to 1994.  The evidence did not show that the psychiatric condition had its onset while she was on active duty nor was a psychosis presumed to have been incurred within.

On 10 October 1995 the VA confirmed the denial of the applicant’s request for service connected post-traumatic stress disorder (PTSD).

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.  Paragraph 13-4b provided for separation for unsuitability for those individuals who were determined to have a personality disorder.  Paragraph 13-4c provided for the separation for unsuitability of those individuals who were apathetic (lack of appropriate interest), had defective attitudes, and did not have the ability to expend effort constructively.  When separation for unsuitability was warranted an honorable or general discharge was issued as determined by the separation authority based upon the individual's entire record.

Army Regulation 40-501, paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, she must be unable to perform the duties of her office, grade, rank or rating.

Army Regulation 635-40, paragraph 2-2b, as amended, provides that when a member is being separated by reason other than physical disability, her continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that she was unable to perform her duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

Army Regulation 40-501, at paragraph 3-3a, provided, in pertinent part, that performance of duty despite an impairment would be considered presumptive evidence of physical fitness.

Army Regulation 635-40 was changed by Department of the Army message, dated 27 February 1973, to provide that when a
member is undergoing evaluation because of a referral arising during processing for separation for reasons other than physical disability, her continued performance of duty until she is scheduled for separation creates a presumption that the member is fit for 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.

In the processing of this case an advisory opinion (COPY ATTACHED) was obtained from the medical advisor the DA Military Review Boards Agency.  That official stated that the applicant had no medical condition which disqualified her for retention on active duty.

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

1.  The applicant’s discharge for unsuitability was proper. The reason for her discharge was changed by the Army Discharge Review Board from personality disorder to apathy. There is no reason for any further action by this Board.  

2.  The applicant's continued performance of duty raised a presumption of fitness which she has not overcome by evidence of any unfitting, acute, grave illness or injury concomitant with her separation.

3.  On 14 May 1997 the records in this case were reviewed by the medical advisor to the DA Military Review Boards Agency. He stated, in effect, that there was no evidence of any medical condition which rendered the applicant medically unfit and justified physical disability processing.  He opined that the applicant was medically fit for retention, or appropriate separation, at the time, and there was no medical basis for a change in the applicant’s separation status.

4.  The medical evidence of record indicates that the applicant was medically fit for retention at the time of her separation.  Neither the applicant nor counsel has submitted any probative medical evidence to the contrary.                                         
5.  The applicant did not have any medically unfitting disability which required physical disability processing.  Therefore, there is no basis for physical disability retirement or separation.

6.  The fact that the VA, in its discretion, has awarded the applicant a disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish physical unfitness for Department of the Army purposes.

7.  The award of VA compensation does not mandate disability retirement or separation from the Army.  The VA, operating under its own policies and regulations, may make a determination that a medical condition warrants compensation.  The VA is not required to determine fitness for duty at the time of separation.  The Army must find a member physically unfit before she can be medically retired or separated.

8.  The VA 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, the applicant'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 her for VA benefits based on an evaluation by that agency.

9.  An award of a VA rating does not establish entitlement to medical retirement or separation.  The VA is not required to find unfitness for duty.  Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected.  Furthermore, the VA can evaluate a veteran throughout her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.

10.  Neither the applicant nor counsel has submitted  probative evidence or a convincing argument in support of her request.   

11.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

12.  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