RECORD OF PROCEEDINGS


         IN THE CASE OF:


         BOARD DATE: 25 MARCH 2004
         DOCKET NUMBER: AR2003083423


         I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Ms. Deborah L. Brantley		Senior Analyst

The following members, a quorum, were present:

Mr. Luther L. Santiful		Chairperson
Mr. Lester Echols		Member
Mr. Thomas E. O'Shaughnessy, Jr.		Member

         The applicant and counsel if any, did not appear before the Board.

         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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THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant submitted multiple applications. He requests, in effect, disability retirement. The applicant also requests award of six million dollars, a heart, liver and kidney, or the equivalent monetary benefits of three million dollars.

2. The applicant states, in effect, that he should be 100 percent disabled because of the “severity of all known and unknown disabilities.” He states Army personnel did not care about what was really going on or what happened to Soldiers. He states that it is impossible to know “exactly what had happened to [him] medically.” He states he was exposed to nerve gas and hard core drugs as a young recruit. He states he was subjected to peer pressure and he put his life on the line. He states that he was confused and misguided by his leaders.

3. The applicant provides copies of his Department of Veterans Affairs (VA) rating documents and a record of his hospitalization and treatment of schizophrenia between 1999 and 2002.

CONSIDERATION OF EVIDENCE:

1. The applicant is requesting correction of an injustice which occurred on
7 November 1979. The applications submitted in this case are dated between October 2002 and September 2003.

2. Title 10, U.S. Code, Section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so. In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3. Records available to the Board indicate that the applicant entered active duty on 8 October 1975. He successfully completed training and in April 1976 he was assigned to a signal battalion in Germany as a radio teletype operator. By February 1977 he had been promoted to pay grade E-4. In July 1978 he extended his 4-year enlistment by 1 month in order to meet a service remaining requirement for rotation back to the United States.

4. In February 1979 the applicant returned to the United States and was assigned to Fort Bliss, Texas. On 7 November 1979 he was honorably discharged by reason of completing his enlistment contract.

5. During the applicant’s military service he received multiple letters of appreciation and commendation. He was awarded the Army Good Conduct Medal. He received the highest possible rating (5) from both his rater and senior rater in the area of physical fitness on all of the period performance evaluations rendered on him during his military service.

6. There were no service medical records available to the Board. However, a July 1979 Personnel Qualification Record indicates that the applicant had a physical profile of 1-1-1-1-1-1 and a physical category code of A, indicating that he had no medical deficiencies which precluded full participation on the military duties.

7. Subsequent to the applicant’s separation from active duty, he served in several United States Army Reserve units and was honorably discharged on
17 July 1981.

8. The applicant’s VA rating documents indicate that at some point after his separation from active duty he was granted a 10 percent service connected disability rating for a foot condition and for a skin condition.

9. According to the medical documents submitted in support of his request, it appears that he began receiving Social Security Disability payments in 1984 and was hospitalized for schizophrenia on several occasions between 1999 and 2002. The report noted that applicant had a “long history of schizophrenia for which he was receiving antipsychotic medications and actually has done well when taking these medications.” The 2002 hospitalization noted that the applicant stopped taking the medications.

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

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

12. Title 38, United States Code, sections 1110 and 1131, 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. Furthermore, unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

DISCUSSION AND CONCLUSIONS:

1. The evidence indicates that the applicant successfully completed his military service without any indication of any medical problems.

2. The evidence of record indicates that 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.

3. A rating action by the VA does not necessarily demonstrate any error or injustice by the Army. 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 reason or authority for separation.

4. While the applicant offers evidence of his hospitalization and treatment for schizophrenia, subsequent to his separation, he provides no evidence that the condition was related to his military service or that he exhibited any symptoms while in the military. He has provided no evidence that his current condition was in any way service connected.

5. In order to justify correction of a military record the applicant must, 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.

6. Records show the applicant should have discovered the alleged error or injustice now under consideration on 7 November 1979; therefore, the time for the applicant to file a request for correction of any error or injustice expired on
6 November 1982. However, the applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to file in this case.

BOARD VOTE:

________ ________ ________ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

__LLS___ __LE ___ __TEO __ DENY APPLICATION

1. The Board determined that the evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

2. As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law. Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.




                  ___ Luther L. Santiful_____
                  CHAIRPERSON

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INDEX

CASE ID	AR2003083423
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20040325
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.