MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 8 October 2002
         DOCKET NUMBER: AR2002070316

         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.

Mr. Carl W. S. Chun		Director
Mr. W. W. Osborn, Jr.		Analyst

The following members, a quorum, were present:

Ms. Jennifer L. Prater		Chairperson
Mr. Melvin H. Meyer		Member
Mr. James E. Anderholm		Member

         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)

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APPLICANT REQUESTS: That her discharge for completion of her term of required active service be changed to retirement due to physical disability rated at 30 percent with back pay authorized.

APPLICANT STATES: She was rated by a formal physical evaluation board (PEB) as disabled due to bipolar disorder rated at 30 percent. That decision was disregarded and she was separated for completion of her term of required active service. Her condition has continued to deteriorate and she is without benefits. She submits a page of information about bipolar disorder from the National Institute of Mental Health (on which she has underlined abuse of drugs, particularly cocaine, alcohol and sleeping medications as a symptom of mania) and several pages of military, civilian and Department of Veteran Affairs (VA) medical records and rating sheets.

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

The applicant, a career Reservist extended her enlistment and entered the AGR (Army Guard/Reserve) Program as a sergeant (E-5) on 6 July 1993.

In September 1993 she was referred to the mental health community for treatment.

A 23 September 1993 psychiatric evaluation notes that, "Prior to 28 September 1993, she had been seen by Dr. G____ O. A____, a psychiatrist in private practice in Birmingham , Alabama. She reportedly had been referred to Dr. A____ on 20 April 1993 by a Dr. S____ of the American Health Facility in Birmingham, Alabama. Her chief complaint at that time was depression and anxiety stemming from job related difficulties." That evaluation produced diagnoses of: (29570) schizoaffective disorder-bipolar with psychotic features; (30502/30590) periodic alcohol abuse with multiple drug abuse; and (3019) personality disorder-not otherwise specified. A 23 August 1994 medical evaluation board found her medically unqualified and referred her case to a PEB.

On 1 November 1994, an informal PEB considered her case, including a 26 May 1994 letter from a private physician to the effect that he had treated her since 30 September 1993 and had diagnosed her with bipolar disorder. The informal PEB found that the applicant's condition had existed prior to entry onto active duty and that any worsening was natural progression.

A 4 November 1994 memorandum from the Chief, Community Health Service, Fort McClellan, Alabama stated that a typographical error had occurred in the 23 September 1993 evaluation report to the extent that the referral to Dr. A____ occurred on 20 September vice 20 April 1993.

The applicant appealed and, on 28 March 1995, a formal PEB found that the condition was incurred during the period of active duty, rated her at 30 percent and recommended that she be retired due to physical disability.

An Army Physical Disability Agency (USAPDA) worksheet shows that the agency's review of the case was completed on 10 April 1995 and the case was returned to the PEB. A formal reconsideration was completed and referred to the applicant on 14 June 1995. The case was then referred back to the military treatment facility on that same date. The USAPDA administratively closed the case on 30 September 1995.

The record is incomplete; it is not clear what occurred between the return of the applicant's case to the military treatment facility and her release from active duty. A 24 April 1996 endorsement from the 5^th Medical Group, Birmingham, Alabama states that the applicant had been barred from reenlistment, was pending evaluation by a PEB and separation under Army Regulation 635-200, chapter 9 [Alcohol/Drug Abuse Rehabilitation Failure.

The applicant was ultimately released from active duty due to the completion of her term of active duty service on 19 September 1996.

Since her separation the VA has rated the applicant for bipolar disorder rated at various levels from 30 to 60 percent.

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 entitled to basic pay.

Army Regulation 635-40, paragraph 3-2b(1), provides that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.

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, applicable law and regulations, it is concluded:

1. In the absence of evidence to the contrary, it is presumed that the disability discharge proceedings and discharge processing were conducted in accordance with law and regulations applicable at the time.

2. 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.

3. 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 this requirement.

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

__JLP___ ___MHM_ ___JEA _ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2002070316
SUFFIX
RECON
DATE BOARDED	20021008
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	108.04
2.
3.
4.
5.
6.