RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         08 FEBRUARY 2005
      DOCKET NUMBER:  AR20040000265


      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             |
|     |Mr. Kenneth H. Aucock             |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Margaret Patterson            |     |Chairperson          |
|     |Ms. Shirley Powell                |     |Member               |
|     |Ms. Susan Powers                  |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests physical disability retirement with a 100
percent disability rating.

2.  In his 19 February 2004 letter to the Army Chief of Staff the applicant
states that he should be granted a 100 percent service connected disability
rating effective 1 June 1994, the date he was released from active duty.
He is currently in the Retired Reserve, having been so transferred on 23
March 2000 because of medical disqualification.  Prior to his reassignment
to the Retired Reserve he was selected for promotion to major.  The
proximate cause of his disability was the medications he received while on
temporary duty (TDY) in Africa in 1992.

      a.  He deployed to Africa in July 1992 and was improperly medicated by
Army and Peace Corps doctors between mid-October 1992 and 2 June 1994.  He
was getting worse but avoided seeking psychiatric/medical care for his
condition.  At first his insomnia allowed him to accomplish tasks, but then
his health deteriorated.  The historical research on the medications that
he was given shows that the doctors were wrong.  In all instances, he was
slowly getting worse because of the medications he received in Africa, but
he kept his condition to himself.  He got by with “Symptom Accommodation”
and supposition behavior with symptoms of sinus pain, fatigue, GI symptoms,
sleep pattern, CNS (?) problems (concentration, memory, etc.), back and
knee pain, excessive weight gain, disillusionment, and repeated colds and
flu.

      b.  He suffered one “flash back” PTSD (posttraumatic stress disorder)
symptom, but avoided going on sick call.  He did not list all of his
medical problems on his ETS (expiration of term of service) report of
physical examination.  While on terminal permissive TDY he slept the whole
time.  After being released from active duty he was bedridden all of the
time.  He received a psychiatric evaluation from the Department of Veterans
Affairs (VA) and received a 100 percent service connected disability
rating, effective 2 June 1994.  Currently, he takes various psychiatric
medications.

      c.  Should more medical records be needed; he will provide them upon
request.  He would like to be retired as a major.  He will provide the
Social Security Administration’s rating decision’s 30 exhibits, if needed.


3.  The applicant provides the documents depicted herein.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 1 June 1994.  The application submitted in this case is
dated           29 March 2004.

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.  The applicant attended the State University of New York (SUNY) at
Fredonia obtaining a Bachelor of Arts degree in psychology in 1982.  He was
commissioned a second lieutenant in the Regular Army on 15 May 1982,
ordered to active duty on 24 May 1982, completed the Quartermaster Officer
Basic Course on 15 October 1982, and immediately thereafter was assigned to
a maintenance company in Germany.  He had tours of duty at Fort Lee,
Virginia, Fort Polk, Louisiana, Honduras, and again in Germany.  He
completed the Quartermaster Advanced Course, the Combined Arms and Services
Staff School, and in 1992 the Command and General Staff Officer Course
(nonresident).  In September 1994 he obtained a Master of Science degree in
business administration.

4.  A review of the applicant’s evaluation reports shows that his raters
indicated that he should be promoted either with or ahead of his
contemporaries.  The       17 reports on file show that he was never rated
in the “top block” by his senior raters, and was rated by those officials
as either a center of mass or below center of mass officer.  Every report
shows that he passed the Army Physical Fitness Test (APFT) and met the
weight control standards.  His report for the three-month period ending on
24 October 1992 shows that he served as a security assistance officer
responsible for management of the United States security assistance program
to the Republic of Sierra Leone, West Africa.  His senior rater on that
report stated that the applicant should be selected for Command and General
Staff College and trained to be a foreign area officer.

5.  On 3 December 1993 the applicant, then stationed in Germany, was
notified that he was not selected for promotion to major, and consequently
would be honorably discharged on 1 June 1994.

6.  The applicant’s last evaluation report, for the six-month period ending
on      26 April 1994 prior to being released from active duty, although a
below center of mass report, contained the remarks by his senior rater,
“Recommend him for promotion to major and selection to attend the Command
and General Staff College.  Upon [the applicant] discharge from active
duty, he can continue to make a contribution to the US Army as a member of
the active Reserves.”

7.  On 2 May 1994 the applicant was awarded the Meritorious Service Medal
for the period 6 June 1991 to 28 April 1994.

8.  Prior to his discharge, the applicant underwent a medical examination.
The    7 January 1994 report of medical examination shows that he was
medically qualified for separation with a physical profile serial of 1 1 1
1 1 1.  In the report of medical history which he furnished for the
examination, the applicant stated that he was in fair health with CTM
occasionally.  He also indicated on that report that he had surgery to his
left knee in 1990, a right ankle injury in 1983, a left shin ankle fracture
in 1993, and micro surgery on his left knee in 1980.  He indicated that he
had or had had frequent or severe headaches, dizziness or fainting spells,
eye trouble, hearing loss, hay fever, skin diseases, palpitation or
pounding heart, heart trouble, broken bones, recent gain or loss of weight,
recurrent back pain, trick or locked knee, and frequent trouble sleeping.


9.  The applicant returned to the United States and on 1 June 1994 was
discharged from the Army under the provisions of Army Regulation 635-120,
chapter 9, nonselection for permanent promotion.  He received $48,160.00 in
separation pay.  Prior to his discharge he made an agreement to join the
Ready Reserve, and on 9 August 1994 was appointed a captain in the Army
Reserve.  On 2 June 1995 he was notified that he was selected for promotion
with a promotion eligibility date of 2 June 1994.  On 23 March 2000 the
applicant was released from the Army Reserve Control Group (Reinforcement)
and assigned to the Retired Reserve because of medical disqualification.


10.  Included with his application are chronological records of medical
care, maintained by the Peace Corps, Sierra Leone, beginning on 31 July
1992, showing that he received in-country briefing and vaccinations,
including rabies, and “Hep B #1.”  He received rabies #2 and #3, and Heb B
#2.  On 5 September 1992 he requested and was given Triazolem (Halcion).
He was seen for problems with his right ankle on 22 September 1992 and on
29 September 1992 received a re-supply of Halcion.

      a.  A 23 August 1993 record indicates that a doctor and another
individual received copies of an unfocused and disjointed letter that the
applicant sent to the U.S. Ambassador to Sierra Leone making a number of
personal allegations against embassy personnel.  The letter appeared to
reflect paranoid thinking.  Over the weekend, the ambassador received a
call from the applicant, presumably from Germany, during which she [the
ambassador] felt that the applicant was going to sue her or even harm her
physically.  The author [doctor] of this record indicated that they needed
to inform his commander of possible need for psychiatric evaluation and
possible intervention.


      b.  Included is a copy of a record of optometric examination, dated
       15 December 1993.


      c.  The applicant was examined by a physician at the New York
Diagnostic Centers in Buffalo, New York on 11 March 1995.  The applicant
complained of numerous problems, to include chronic immunodeficiency
fatigue syndrome symptoms, which he mentioned as recurrent fatigue, flu and
cold symptoms, headaches, malaise or less energy (constant up and down),
sore throat, runny nose, hoarseness, cough, infrequent muscle aches, stiff
neck, unexplained muscle aches, chronic sinus type of symptoms, frequent
diarrhea, sleep disorder, hypersomnia, or insomnia, irregular bowel
movements, heartburn, abdominal cramps, possible benign prostatic
hypertrophy or prostatitis, and total difficulty from his prior visit to
Africa.  The applicant mentioned his hospitalizations and the medications
that he was taking.  The doctor touched upon his social history.  He stated
that a mental status examination showed that the applicant seemed to have
an anxious personality, of a quite obsessive type, and seemed to indulge in
incessant talking sometimes not of reasonable relevance.  He was oriented
and his insight into the problem seemed to be rather extensive.  His
thought content appeared to indicate that he was obsessed with his multiple
symptoms.  The physician stated that the applicant seemed to have an
obsessive and anxious type of personality, and opined that he needed to be
seen by a psychiatrist and/or psychologist in addition to being seen at the
Gulf War clinic.

      d.  A document, titled “Report of Contact,” dated in 1995, indicates
that the applicant continually goes back to chronic fatigue problems and
had be redirected.  It indicates that the applicant believed that his
problems were related to all the antibiotics that he had taken, that when
off the antibiotics he felt down and tired, and when on them had lots of
energy.  It indicates he spoke of taking the physical training test while
in the Army, that he had been referred to the Persian Gulf Clinic at the
VA, that he had requested and received information about an infection, and
that he knew many antibiotics and dosages, and medical facts.  It indicates
that the applicant stated, “I was being a good Soldier drudging on enough
though I felt lousy.”

      e.  In a form that he was asked to complete, the applicant listed all
his medical problems, hospitalizations, and medications.  He signed and
dated the form on 7 March 1995.

      f.  On 6 June 1995 and again on two occasions in August 1995 he wrote
to a Member of Congress (MC) about his chronic medical problems, stating
that they could be traced back to his temporary duty in Sierra Leone.  He
stated that he had been denied social security disability status as of 13
April 1995.  He commented on the medications that he had received, his
research into the effects of those medications, his health, and his
symptoms.

      g.  On 11 May 1996 the applicant wrote the Secretary of the Amy,
requesting an investigation in the “erroneous medications” that he was
prescribed by the Army and the State Department.

      h.  On 15 July 1996 the Social Security Administration (SSA) awarded
the applicant disability benefits retroactive to October 1994.  In so
doing, the Administrative Law Judge found that the applicant had failed to
prove the presence of any physical basis for his complaints, but there was
sufficient evidence of an alternative basis for his numerous, debilitating
symptoms, and cited the findings by the above-mentioned doctor who
diagnosed the applicant as having an obsessive and anxious type of
personality.  The SSA decision indicated that the applicant’s records
showed that he had been diagnosed with schizoaffective disorder, as well as
depression and histrionic personality.  The decision indicated that a
psychiatric consult also resulted in a diagnosis of schizoaffective
disorder.  The applicant was also examined by a consultative examiner in
May 1996 who opined that the applicant’s obsessive preoccupation with vague
medical symptoms and paranoid letter writing suggested a significant
thought disorder.  The applicant was diagnosed with schizophrenia, paranoid
type.  The Administrative Law Judge found that the applicant was incapable
of performing at any exertional level on a sufficiently reliable basis so
as to function in a competitive work setting – that he was unable to work
due to his mental disorder.  In making their findings, the SSA noted that
given proper treatment, however, nothing suggested that the applicant would
not be able to return to the work force in some entry level capacity in the
future.

      i.  On 1 August 1997 the applicant wrote the Chairman, Joint Chiefs of
Staff, referencing previous correspondence with that official, and
providing data regarding medicating information.

      j.  On 10 November 1997 the VA awarded the applicant a 100 percent
disability rating for undifferentiated somatoform disorder and a 10 percent
disability rating for frontal sinusitis.

      k.  On 30 April 2002 the applicant requested assistance from a Member
of Congress.

      l.  On 28 April 2003 the VA informed the applicant that he was rated
     100 percent disabled for service connected disabilities, and since
there were no further VA examinations scheduled, his disability was
considered permanent in nature for VA purposes.

      m.  In a 19 February 2004 letter to the Army Chief of Staff, he made
reference to a conversation with a Colonel regarding a telephone call made
to the ambassador to Sierra Leone in August 1993.  This apparently was a
follow-up letter to previous correspondence to that official.

      n.  On 22 March 2004 the Army Physical Disability Agency informed the
applicant that he could apply to this Board if he felt that he was
erroneously discharged.

      o.  On 12 July 2004 a member of this agency informed him that he had
located a 16 September 1992 chronological record of medical care; but could
not find the results of his blood tests in his records.

      p.  Additional documents submitted by the applicant include a request
and authority for leave for the period 28 April 1994 to 1 June 1994, a copy
of a         28 August 1998 memorandum to him from the Office of the Chief
of Staff returning certain correspondence, and a copy of a newspaper
article titled “Survey reveals Americans would rather tough it out.”

11.  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.

12.  Army Regulation 40-501, then in effect, 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.

13.  Army Regulation 635-40, paragraph 2-2b, as amended, provides that when
a member is being separated by reason other than physical disability, his
continued performance of duty creates a presumption of fitness which can be
overcome only by clear and convincing evidence that he was unable to
perform his duties or that acute grave illness or injury or other
deterioration of physical condition, occurring immediately prior to or
coincident with separation, rendered the member unfit.

14.  Title 38, United States Code, sections 1110 and 1131, permit the
Department of Veterans Affairs (VA) to award compensation for disabilities
which were incurred in or aggravated by active military service.  However,
an award of a higher VA rating does not establish error or injustice in the
Army rating.  An Army disability rating is intended to compensate an
individual for interruption of a military career after it has been
determined that the individual suffers from an impairment that disqualifies
him or her from further military service.  The VA, which has neither the
authority, nor the responsibility for determining physical fitness for
military service, awards disability ratings to veterans for conditions that
it determines were incurred during military service and subsequently affect
the individual’s civilian employability.  Accordingly, it is not unusual
for the two agencies of the Government, operating under different policies,
to arrive at a different disability rating based on the same impairment.
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.  The Army rates only conditions
determined to be physically unfitting at the time of discharge, thus
compensating the individual for loss of a career; while the VA may rate any
service connected impairment, including those that are detected after
discharge, in order to compensate the individual for loss of civilian
employability.  A common misconception is that veterans can receive both a
military retirement for physical unfitness and a VA disability pension.  By
law, a veteran can normally be compensated only once for a disability.  If
a veteran is receiving a VA disability pension and the ABCMR corrects the
records to show that a veteran was retired for physical unfitness, the
veteran would have to choose between the VA pension and military
retirement.

DISCUSSION AND CONCLUSIONS:

1.  He was on active duty from May 1982 until his discharge on 1 June 1994
because of his failure to be selected for promotion.  His service medical
records do not indicate any medical condition incurred while entitled to
receive basic pay which was so severe as to render the applicant medically
unfit for retention on active duty.  At the time of the separation physical
examination, competent medical authority determined that the applicant was
then medically fit for retention or appropriate separation.  Accordingly,
the applicant was separated from active duty for reasons other than
physical disability.

2.  The evidence shows that the applicant was able to pass the APFT
throughout his Army career.  He continued his military education while on
active duty, successfully completing the nonresident Command and General
Staff Officer Course in 1992.  The evidence also shows that he obtained his
Master’s degree in September 1994 shortly after his discharge.

3.  The evidence shown by his evaluation reports, to include the report for
the period ending on 26 April 1994, less than two months prior to his
discharge, shows that he was a capable officer, who was recommended for
promotion by his senior rater.  His award of the Meritorious Service Medal
prior to his discharge attests to his capability to perform his duties.  He
himself apparently felt that he was medically capable of military service
as evidenced by his request to join the Army Reserve and by his accepting
an appointment in that component after his discharge.

4.  The applicant's continued performance of duty raised a presumption of
fitness which he has not overcome by evidence of any unfitting, acute,
grave illness or injury concomitant with his separation.

5.  The fact that the VA and the SSA, in their discretion, have awarded the
applicant disability benefits is a prerogative exercised within the
policies of those agencies, and does not, in itself, establish physical
unfitness for Department of the Army purposes.

6.  The VA 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, the applicant'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 him for VA benefits based on an evaluation by that
agency.  Furthermore, the VA can evaluate a veteran throughout his
lifetime, adjusting the percentage of disability based upon that agency's
examinations and findings.  The SSA, as shown in its decision document, can
also adjust disability benefits should a veteran return to the workforce.
The Army must find unfitness for duty at the time of separation before a
member may be medically retired or separated.


7.  At the time of the applicant’s discharge in June 1994, he did not have
any medically unfitting disability which required physical disability
processing.  Therefore, there is no basis for physical disability
retirement or separation.

8.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 1 June 1994; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on           31 May 1997.  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 timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___MP __  ___SP __  ___SP __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




                                  ____Margaret Patterson_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040000265                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050208                                |
|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.                      |                                        |


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