MEMORANDUM OF CONSIDERATION


	IN THE CASE OF:        
	 

	BOARD DATE:            25 February 1999
	DOCKET NUMBER:   AC96-06684
				   

	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. 




	The following members, a quorum, were present:





	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	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, that the percentage of his disability retirement be increased from 10 percent to 30 percent.

APPLICANT STATES:  That his condition had not improved when he was removed from the Temporary Disability Retired List (TDRL) with a 30 percent disability rating and placed on the Permanent Disability Retired List (PDRL) with a 10 percent disability rating.

COUNSEL CONTENDS:  That the applicant was unfit for retention in the Army by virtue of a disability which was incurred while he was entitled to basic pay to the severity of which warranted continuance on the TDRL or placement on the PDRL instead of removal from the TDRL and discharge with severance pay.  He further contends that removal from the TDRL requires proof that the applicant’s psychiatric disorder improved to where a rating of less than 30 percent was appropriate, whether or not the condition had stabilized and that the evidence of record, or which should have been of record, when the applicant was removed from the TDRL clearly proved that there was no improvement in his condition.  Counsel contends that current records provide further substantiation that the applicant’s psychiatric disorder was ratable at or above 30 percent since his removal from the TDRL.  Counsel further contends that the applicant has exhausted all remedies provided by existing law or regulation, that the applicant’s petition was not timely filed however, the Board should excuse this failure because it is in the interest of justice to do so, and because sufficient evidence is presented demonstrating error or injustice.

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

On 1 November 1963, he enlisted in the Army for 3 years in the pay grade of 
E-1.  He successfully completed his training as a signal supply and parts specialist.  He completed 2 years, 5 months and 29 days of total active service prior to being discharged on 19 May 1966.  On the following day, he reenlisted in the Army.  On 19 May 1969, he was again, honorably discharged after he completed his 3-year tour of duty.  On 20 May 1969, the applicant reenlisted for an additional 3 years.

On 21 January 1970, he was referred for a medical evaluation for the purpose of determining whether he should be referred to a medical evaluation board.  The attending physician concluded that he was suffering from reaction, schizophrenic, paranoid type, acute, moderate, manifested by hyperactivity, grandiosity, delusions, bizarre behavior, and loose associations; external precipitating stress: moderate, duty in Vietnam, possibly use of hallucinogenic; predisposition: severe for this episode, history of similar episode one year ago; impairment; moderate for further military duty, definite for social and industrial adaptability.  The physician determined he was not qualified for further military duty and he recommended that the applicant be referred to a Medical Evaluation Board (MEB).

An MEB convened on 23 January 1970 to determine whether the applicant should be referred to a Physical Evaluation Board (PEB).  The MEB concurred with the diagnoses that was rendered by the Army’s medical physician. The MEB recommended that the applicant be referred to a PEB.  The applicant indicated that he did not concur with the findings and recommendation of the MEB.  Nonetheless, the findings and recommendation were approved by the proper authority.

On 17 February 1970, a PEB convened to determine whether the applicant was fit for retention on active duty.  The PEB diagnosed him as having schizophrenia, paranoid, acute.  The PEB concluded that his disability was incurred while entitled to basic pay, and that the disability was the proximate result of the performance of military service.  The PEB recommend that he be placed on the TDRL with a 30 percent disability rating.  The applicant indicated that he concurred with the findings and recommendation of the PEB and he waived his right to a formal hearing in his case.

Accordingly, on 17 March 1970, the applicant was honorably retired by reason of physical disability and he was placed to the TDRL with a 30 percent disability rating and scheduled reexaminations.  

On 18 March 1970, the applicant was evaluated by the VA and he was awarded a combined service-connected disability rating of 30 percent for a nervous condition.

On 11 January 1972, a PEB reexamined the applicant and determined that his disability had improved to a degree, however he was still medically unfit for further retention in the service.  The PEB recommended that he be separated from the Army with severance pay based on a 10 percent disability rating.  

The applicant was notified of the decision made by the PEB on 17 January 1972, and he failed to submit a rebuttal to the decision within the prescribed period of time.  Accordingly, on 29 February 1972, he was removed from the PDRL and discharged by reason of physical disability under the provisions of Title 10 United States Code, section 1203.  He was awarded a 10 percent disability rating and severance pay.  He had completed 6 years, 4 months and 17 days of total active service.

On 3 October 1984, the applicant was reevaluated by the VA and awarded a combined service-connected disability rating of 70% for schizophrenia, paranoid type, competent.  

Title 10 United States Code, section 1203, provides for the physical disability separation of a member who had less than 20 years service and a disability rated at less than 30 percent.

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 regulation, assigns disability ratings as it sees fit.  Any rating action by the VA does not compel the Army to modify its rating.

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 applicant’s disability was properly rated in accordance with the VA Schedule for Rating Disabilities.  His separation with severance pay was in compliance with law and regulation.

2.  Continuation on the TDRL was precluded since the applicant had completed less than 20 years service and had a combined disability rating of less than 30 percent.

3.  The contentions of the applicant and his counsel have been noted by the Board.  However, they do not demonstrate error or injustice in the disability rating assigned by the Army, nor error or injustice in the disposition of his case by his removal from the TDRL.  On 11 January 1972, a PEB reexamined the applicant and determined that his disability had improved to a degree, however he was still medically unfit for further retention in the service.  The PEB recommended that he be separated from the Army with severance pay and placed on the PDRL based on a 10 percent disability rating.  Moreover, he was properly notified and he failed to submit a rebuttal to the decision within the prescribed period of time.

4.  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.

5.  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

___sc___  __jlp____  ___ja____  DENY APPLICATION




						Loren G. Harrell
						Director



INDEX

CASE ID
AC96-06684/AR1999022692
SUFFIX

RECON
 
DATE BOARDED
1999/02/25
TYPE OF DISCHARGE

DATE OF DISCHARGE
 
DISCHARGE AUTHORITY
 
DISCHARGE REASON
 
BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.  108.020

2.  108.000

3.

4.

5.

6.