MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:


         BOARD DATE: 14 AUGUST 2003
         DOCKET NUMBER: AR2003085689


         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. Raymond V. O'Connor, Jr.		Chairperson
Mr. James E. Anderholm		Member
Ms. Linda M. Barker		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 the application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file.

         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: Physical disability retirement.

The applicant states that he was hospitalized for bipolar disorder while in the Army, but was awarded nothing for it. He submits a copy of a 9 September 1998 VA decision showing a 10 percent service connected disability rating for bipolar disorder with post-traumatic stress disorder (PTSD).

PURPOSE: To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.

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

The applicant enlisted in the Army for six years on 27 February 1991, completed training and in November 1991 was assigned to a helicopter battalion in Germany.

An 18 December 1991 investigation accident report indicates that the applicant sustained multiple fractures and lacerations when the forward portion of a trailer tongue landed on his left foot.

A 7 May 1992 Medical Board narrative summary diagnosed the applicant's condition as postop status open fracture, first metatarsal; postop status fracture, proximal phalanx, second and third toes; fractured fourth metatarsal distal condyle; fractured base of second, third, and fourth metatarsals; postop status fractured second cuneiform; residuals reflex sympathetic dystrophy, left foot; hallux rigidis secondary to the first diagnosis; decreased range of motion, mid tarsal joints, left foot secondary to diagnoses four and five; and plantar callouses, secondary to the second diagnosis. The examining physician stated that the applicant was unable to carry out his duties, and that he did not expect that his situation would improve and did not think that any addition surgical or medical treatment would benefit him. He stated that the applicant would be submitted to a Medical Evaluation Board (MEB) for further evaluation and recommendations.

On 18 May 1982 a Medical Evaluation Board (MEB) determined that the applicant had multiple fractures to his left foot and recommended that he be referred to a Physical Evaluation Board (PEB). The applicant concurred.

On 5 June 1992 the applicant received a permanent P3 profile because of multiple fractures to his left foot.

The applicant was transferred to the United States, arriving at the Naval Hospital in Portsmouth, Virginia on 6 August 1992. An addendum to the report of the Medical Board prepared at that hospital shows that he was treated in the podiatry section of the orthopedic department for three weeks for a crush injury to his left foot, undergoing various procedures to include surgery. The addendum indicates that the applicant was in a rehabilitative and healing status from the surgery and was being followed up on an outpatient basis via plastic surgery and psychiatry department. It indicated that his rehabilitative potential for return to full duty in the Army was minimal.

A 24 November 1992 addendum to the report of the medical board from the Naval Hospital at Portsmouth indicates that the applicant was admitted to the psychiatric department on 6 August 1992 because of a bipolar disorder, and discharged to Fort Eustis on 27 August 1992 pending his admission to orthopedic surgery for the corrective surgery of his left foot. He was followed by a psychiatrist at Fort Eustis.

That addendum indicates that it was the second psychiatric admission for the applicant who was transferred from Fort Eustis for evaluation for an episode of irritability and anger at the post exchange in which he broke a window with his cane when told that his check cashing privileges were suspended. It indicated that the applicant had been admitted to a ward from 6 August to 27 August 1992 for stabilization of bipolar disorder which he had since age 18. The addendum indicated that he began on lithium, and did well, but once at medical hold at Fort Eustis he began to feel stressed, becoming more irritable with vague paranoid ideation that culminated in the events in the post exchange that led to his subsequent admission on 6 September 1992.

The addendum indicated that the applicant described himself as a very rebellious and problematic child, who was sent to a boy's home at age 17 for one month for impulsiveness and promiscuity. He described good and bad relationships with his teachers and peers. He eventually dropped out of school, later obtaining his diploma through night school.

The mental status examination indicated that there was no psychotic, major affective, nor organic systems noted. Memory and cognition were intact. Insight about his problems was good and his judgment was not impaired.

The addendum indicated that the applicant was admitted to a ward where he was afforded individual, group, and milieu therapy, and that he participated well. Serial mental status examinations revealed no evidence of psychosis, organicity or anxiety disorders. He was competent to participate in discharge planning and did so actively. At the time of his discharge, he was not suicidal, homicidal or psychotic and had received maximum inpatient hospitalization.

The addendum indicated that the staff psychiatrists agreed that the applicant suffered from a condition that precluded his rendering useful military service. His condition was diagnosed as bipolar disorder, mixed, existed prior to entry into the service, as manifested by a long history of expansive mood, irritability, racing thoughts, inflated self-esteem and a history of mood disturbance (sufficiently bad enough to cause impairment in occupational functioning) that led to his lay off from his job, and a history of alternating depression with manic episodes. The Medical Board opined that the applicant was unfit for further military service as a result of a physical disability that existed prior to his entry into the service. The Medical Board recommended that the applicant's case be referred to the PEB.

On 13 December 1992 a MEB diagnosed the applicant's condition as crush injury, left foot, and bipolar disorder, mixed (existed prior to service), and recommended that the applicant be referred to a PEB. The applicant concurred.

On 4 January 1993 a PEB determined that the applicant was physically unfit for satisfactory performance of duty in his grade and MOS because of a moderately severe injury to his left foot, and recommended that the applicant be separated with a 20 percent disability rating. The applicant concurred and waived a formal hearing of his case.

On 25 February 1993 the Physical Disability Agency (USAPDA) modified the findings of the PEB, to include the diagnosis of bipolar disorder; however, indicating that it existed prior to service and was not service aggravated and not ratable. The applicant initially did not concur with the modification and requested a formal board; however, on 1 April 1993 he withdrew his request for a formal board, stating that he did not agree with the decision, but would not submit additional information at that time. The modified findings and recommendation were approved on 7 April 1993.

On 5 May 1993 the applicant was discharged under the provisions of Army Regulation 635-40 because of his physical disability, with a 20 percent disability rating. He received $4,004.30 in severance pay.

On 9 September 1998 the VA awarded the applicant a 10 percent disability rating for bipolar disorder with post-traumatic stress disorder. The rating decision indicated that the evidence clearly showed that the applicant's bipolar disorder pre-existed military service. It indicated that his claim for service connection for bipolar disorder was previously denied because the evidence failed to show a permanent aggravation of the pre-existing condition during military service. It indicated that a psychiatric examination was conducted specifically for the purpose of obtaining an opinion as to any permanent aggravation. The VA examiner stated that the psychiatric diagnosis included two different disorders. The first was a diagnosis of bipolar disorder which was present prior to enlistment on active duty. It was the judgment of the examiner that the inservice crushing foot injury and associated residual disability permanently aggravated the bipolar condition. The examiner also determined that the applicant met the criteria for a diagnosis of post-traumatic stress disorder secondary to the inservice crushing foot injury. He stated that the bipolar disorder was in partial remission.

Army Regulation 635-40 states that according to accepted medical principles, certain abnormalities and residual conditions exist that, when discovered, lead to the conclusion that they must have existed or have started before the individual entered the military service. Standard in-service medical and surgical treatment reducing the effect of the conditions incurred prior to entry into military service does not constitute serviced aggravation unless the treatment was required to relieve disability that had been aggravated by military service.

Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.

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.

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. Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.

The evidence shows that the applicant's bipolar disorder existed prior to his enlistment in the Army in 1991, and that his bipolar disorder was manifested by a long history of various conditions and a history of alternating depression with manic episodes. Notwithstanding the opinion of the VA examiner five years after the applicant's discharge, there is no evidence that the applicant's condition was

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aggravated by his military service. His bipolar condition was properly diagnosed as existing prior to service, and not aggravated by his service. Consequently, his discharge with a 20 percent disability rating for his left foot condition is correct. Therefore, there is no basis to correct his record as the applicant has requested.

DISCUSSION: The alleged error or injustice was, or with reasonable diligence should have been discovered on 5 May 1993, the date of his discharge. The time for the applicant to file a request for correction of any error or injustice expired on 5 May 1996.

The application is dated 20 January 2003 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.

DETERMINATION: The subject application was not submitted within the time required. The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law. Prior to reaching this determination the Board looked at the applicant’s entire file. It was only after all aspects of his case had been considered and it had been concluded that there was no basis to recommend a correction of his record that the Board considered the statute of limitations. Had the Board determined that an error or injustice existed it would have recommended relief in spite of the applicant’s failure to submit his application within the three-year time limit.

BOARD VOTE:

________ ________ ________ EXCUSE FAILURE TO TIMELY FILE

________ ________ ________ GRANT FORMAL HEARING

__RVO__ __JEA___ ___LMB _ CONCUR WITH DETERMINATION

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

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INDEX

CASE ID	AR2003085689
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20030814
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.