MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 03 DECEMBER 2002
         DOCKET NUMBER: AR2002075977

         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. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. James E. Anderholm		Member
Ms. Charmane Collins		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: In effect, the applicant requests that her records be corrected to show retirement because of physical disability with a 95 percent disability rating in the grade of lieutenant colonel. She also requests that her records be corrected to reflect her maiden name.

APPLICANT STATES: That the VA stated that she was severely disabled, that she was a paranoid schizophrenic. She states that she can never work in her career field as a pathologist/physician. She also states that she was promoted to lieutenant colonel on 2 December 1992. She states that she was divorced on 4 May 1982, and went to court to have her name changed.

The applicant submits with her request a copy of an 11 February 2002 VA decision awarding her a 50 percent disability rating for paranoid schizophrenia effective on 4 August 2000; a copy of a certificate transferring her to the Retired Reserve in the grade of lieutenant colonel on 2 December 1992; copies of two evaluation reports, of which the ending periods are 14 August 1987 and 14 August 1988; copy of a 1 December 1992 order retiring her in the grade of major with a permanent disability rating of 30 percent; a copy of a 4 May 1982 divorce decree; a copy of her social security card and birth certificate; and a copy of a 13 June 2002 DFAS letter informing her that a name change would be effective from the date approved by this Board.

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

The applicant was a pathologist who was initially appointed a Reserve commissioned officer in the Medical Service Corps. She was appointed a Reserve officer in the Medical Corps on 16 June 1981, underwent training as a pathologist, and was promoted to major on 22 June 1985. Her officer evaluations, through 31 January 1989 were generally excellent, with the majority being center of mass reports.

A notice in the Court of Common Pleas of Montgomery County, Pennsylvania, in reference to the applicant’s 1982 divorce, shows that the applicant elected to retake and use her prior surname.

In May 1985 she was assigned to a medical activity in Germany, and subsequently to the 98^th General Hospital in Germany. On 27 December 1988 orders were published assigning her to the 5^th General Hospital in Germany with a reporting date of 1 February 1989.

The applicant’s evaluation report for the period ending on 21 August 1989 shows that both her rater and senior rater stated that she had stress-related psychiatric problems, and that she was air evacuated to the United States for a medical board.

Orders show that the applicant was medically transported to the United States for assignment to Walter Reed Army Medical Center with a reporting date of
22 August 1989. The order was later amended to assign her to Fort Knox, Kentucky, with attachment to the Air Force Regional Medical Center at Wright-Patterson Air Force Base for hospitalization and medical care.

Neither Medical Evaluation Board (MEB) nor Physical Evaluation Board (PEB) proceedings are available to this Board. However, in a 24 October 1989 memorandum, the PEBLO (PEB Liaison Officer) at the Fort Knox, Kentucky medical activity stated that the applicant was counseled concerning the MEB that was completed at Wright-Patterson Air Force Base Medical Center, and that she did not want to sign anything to show that she agreed or disagreed with the MEB findings; but did state that she did not agree with the diagnosis, but did not want to add anything to the board.

In a 13 November 1989 memorandum an alternate PEBLO stated that the applicant had agreed with the 30 percent disability rating placing her on the temporary disability retirement list (TDRL).

On 2 January 1990 the Acting Assistant Secretary of Defense approved the recommendation to place the applicant on the TDRL with a disability rating of 30 percent.

A 12 January 1990 DA Form 3713 (Data for Retired Pay) shows that the applicant’s active duty and retired grade were both “major,” and that the highest grade that she had attained was “major.”

On 26 January 1990 the applicant was retired because of physical disability and placed on the TDRL in the grade of major with a 30 percent disability rating.

On 16 January 1991 orders were published directing the applicant, then living in Germany, to report to the 5^th General Hospital for a periodic physical examination during the month of May 1991. The results of that examination are not available.
In a 19 March 1992 memorandum, the Office of The Surgeon General informed the President of the PEB at Walter Reed Army Medical Center that the MEB proceedings concerning the applicant were reviewed by The Surgeon General’s psychiatry consultant, that the proceedings documented diagnoses of psychotic disorder and personality disorder, and consequently, the applicant could not be used as a Medical Corps officer.

On 1 April 1991 a PEB determined that the applicant was physically unfit because of her psychotic disorder, not otherwise specified, in remission; and

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recommended that the applicant be permanently retired with a 30 percent disability rating. The applicant did not concur and demanded a formal hearing.

On 13 August 1992 the President of the PEB granted an extension until 10 September 1992 in order to rebut the findings of the 5 August 1991 formal PEB.

Orders published on 1 December 1992 show that the applicant was removed from the TDRL on that date and permanently retired in the grade of major because of physical disability with a disability rating of 30 percent.

On 23 August 1996 the applicant, using her married surname, requested that she be returned to active duty. Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's consideration of her request (AC97-09382) on 22 July 1998.

The applicant’s records, to include those that she herself completed and signed, dating from June 1981 to the date that she was permanently retired, show that she used her married surname even after her 1982 divorce. Documents prepared subsequent to her retirement, some of which she completed and signed, show that she continued to use her married surname.

The applicant’s records fail to show that she was promoted to lieutenant colonel.
On 3 June 1998 the applicant requested to the Army Reserve Personnel Command that her records be changed to reflect her maiden surname.

The 11 February 2002 VA rating decision that she submits with her application, provides a history of the applicant’s physical condition. That document indicated that she had a psychotic breakdown in Germany on 9 August 1989 with a diagnosis of paranoid schizophrenia, that she was hospitalized for two months in Landstuhl, and following an escape attempt, she was transferred to Fort Knox, where she was placed on the TDRL. She returned to Germany, was placed on the permanent disability retired list on 2 December 1992, and began treatment at a VA medical center in 1997, when she was involuntarily committed following a serious suicide attempt. She was followed-up, ultimately accepted prescribed medications, and dramatically improved her functioning. She was in fairly good remission and doing the best she ever had since her initial hospitalization in Germany. The medications had given her back her life. She still remained isolated a good deal of the time, attempted to get work as a physician, but her spotty work history and her felony conviction always undermined her efforts. She took some low level jobs, but found the routine and pressure to work faster intolerable.

Examination showed that her affect was restricted and her emotions well controlled. On the surface, there was no evidence of psychotic process; however, by history and looking at the quality of her current life, it appeared clear that what she had achieved was an excellent remission of a major psychiatric illness. Though disappointed that her life had not gone as planned, she seemed to accept the fact, and adapted as best as she could. She was no longer considered to be of danger to herself or anyone else, and was considered competent to manage her own funds. However, it appeared unlikely that she could productively work on a full time basis. Although she was currently in a good remission, it was not clear how permanent or how fragile the remission might prove to be over the long-term. The VA examiner diagnosed paranoid schizophrenia, in remission with obsessive-compulsive features. A 50 percent evaluation rating was assigned because she still suffered from moderate anxiety and depression.

Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of her office, rank, grade or rating because of disability incurred while entitled to basic pay.

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.

Army Regulation 635-40 governs the evaluation for physical fitness of soldiers who may be unfit to perform their military duties because of physical disability. Appendix B of that regulation provides for the Army application of the VA Schedule for Rating Disabilities (VASRD), and states that not all of the general policy provisions of the VASRD apply to the Army. It states, in pertinent part, that loss of function is the principal criterion for establishing the level of impairment resulting from mental illness. Loss of function is reflected in impaired social and industrial adaptability. The VASRD uses specific terms to classify the level of social and industrial impairment. It provides disability ratings ranging from 100 percent, totally disabled, to 0 percent, full remission. A 50 percent rating indicates a considerable loss of function; a 30 percent rating a definite loss of function.

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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 medical records, MEB and PEB evaluations, and results of TDRL examinations, are not available to this Board. The evidence shows that the applicant apparently did accept the findings of a 1989 PEB which resulted in placing her on the TDRL. The evidence also suggests that she did not concur in a PEB finding to permanently retire her with a 30 percent disability rating, that a formal board adhered to that finding, and that she was permanently retired with a 30 percent rating in December 1992. Notwithstanding the VA rating decision, rendered over 9 years after her retirement, there is no evidence, nor has she provided any, to show that the rating given in 1992 was unfair or unjust. Absent evidence to the contrary, regularity is presumed.

2. The applicant's contentions do not demonstrate error or injustice in the disability rating assigned by the Army, nor error or injustice in the disposition of her case by her retirement with a 30 percent disability rating. 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 regulations, assigns disability ratings as it sees fit. Any rating action by the VA does not compel the Army to modify its rating. Furthermore, the VA can evaluate a veteran throughout her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

3. The applicant’s request to increase her disability rating to 95 percent is not granted.

4. Other than the 2 December 1992 certificate transferring her to the Retired Reserve, there are no records, documents, orders, etc., indicating that she was a lieutenant colonel, or that she was ever promoted to that grade. The preponderance of evidence indeed shows that she was a major from the date promoted to that grade, to the time she was placed on the TDRL and subsequently, the permanent retired list. There is insufficient evidence to grant her request to be retired in the grade of lieutenant colonel.

5. The applicant’s records show that she served as an officer from 1981 until her retirement using her married surname, even after her 1982 divorce. A 1982 court document shows that she intended to use her maiden surname subsequent to her divorce; however, apparently took no action to change her surname, continuing to use her married name even after her retirement. Accordingly, there is no basis to change the name that she was using during her military service. There is no error in her records concerning her surname, and there is no injustice done her because her records reflect her married surname.

6. The applicant has submitted neither probative evidence nor a convincing argument in support of her request.

7. 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 that requirement.

8. 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

__FNE__ __JEA___ __CC ___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002075977
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20021203
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	108.00
2.
3.
4.
5.
6.