RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        15 FEBRUARY 2005
      DOCKET NUMBER:  AR20040001551


      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:

|     |Ms. Jennifer Prater               |     |Chairperson          |
|     |Mr. Thomas Pagan                  |     |Member               |
|     |Mr. Kenneth Lapin                 |     |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 that his 1990 discharge from the Army be
corrected to show that he was retired or separated by reason of physical
disability.

2.  The applicant states, in effect, that the Army Discharge Review Board
(ADRB) recently upgraded his 1990 discharge to fully honorable and that
members of that board “further recommended” that he “seek a medical
discharge.”  The applicant states he was granted a 50 percent disability
rating by the Department of Veterans Affairs (VA).

3.  The applicant provides a copy of the ADRB summary and decision, a copy
of his recent VA rating, a copy of the statement he submitted to the ADRB
in support of his request to have his discharge upgraded, and two
statements from physicians with Bayview Associates to the VA regarding the
applicant’s Posttraumatic Stress Disorder (PTSD).

CONSIDERATION OF EVIDENCE:

1.  Records available to the Board indicate that the applicant was a member
of the Army National Guard for approximately 10 months prior to enlisting
in the Regular Army for a period of 4 years on 3 October 1989.  The
applicant completed his initial entry training while a member of the Army
National Guard.

2.  Upon the applicant’s enlistment in the Regular Army, he was assigned to
a Personnel Service Center in Germany.  His records indicate that he
arrived at his unit in Germany on 19 October 1989.

3.  In the applicant’s statement to the ADRB, he indicated that in February
1990 he was sent to an Air Force Base in Spangdalem, Germany, where the
sergeant who was in charge of the detachment sexually assaulted him.  He
stated that he struggled with continuous mocking and derision and was
prescribed medication because he could not sleep.  Ultimately he returned
to his parent organization in Baumholder, Germany, but continued to be
subjected to ridicule by members of that organization as well.  He stated
that in spite of constant harassment, he never lost his temper and
“performed my duties properly at all times.”  He stated that he did not
feel that the Army gave him the help he needed and his opportunity to purse
an Army career was cut short by a sergeant who abused his rank and power.
He stated that since his discharge he has relied on income from social
security and is dependent on medication to help him cope with trauma and
depression.

4.  The applicant’s records indicate that in September 1990 his unit
commander initiated action to administratively separate him (the applicant)
from active duty under the provisions of Army Regulation 635-200, Chapter
14, for a pattern of misconduct.  The commander cited a July 1990 record on
non-judicial punishment for two counts of failing to go to his appointed
place of duty, disobeying an order, using provoking words towards a woman
sergeant on three different occasions, and assaulting another Soldier.  All
of the incidents of misconduct took place on 15 and 16 June 1990.  The unit
commander recommended that the applicant receive a general discharge under
honorable conditions.  The recommendation was approved and on 18 October
1990, the applicant was discharged.

5.  An August 1990 and September 1990 automated personnel record shows that
the applicant’s physical profile was 1-1-1-1-1-1.  An 8 August 1990
physical examination noted that the applicant was “qualified for worldwide
service” with a physical profile of 1-1-1-1-1-1.

6.  On 14 March 2003 the applicant initiated an application to the ADRB
requesting that his discharge be upgraded to fully honorable.  On 25 March
2003 he initiated a request to the VA for disability compensation.

7.  On 27 June 2003 the ADRB unanimously voted to upgrade the character of
the applicant’s 1990 discharge to fully honorable.  In their summation, the
ADRB indicated that while they did not condone the applicant’s misconduct,
it “determined that he presented mitigating circumstances of sufficient
merit to overcome the discrediting entries in his service record” and as
such, concluded that his discharge was inequitable.

8.  On 3 March 2004 the VA granted the applicant a 50 percent disability
rating for PTSD retroactive to 1 April 2003.  In their decision the VA
noted that the applicant’s service medical records showed that he was seen
at the Bitburg Air Force Base emergency room where the applicant stated
that he “had been sexually assaulted by a male sergeant after drinking and
passing out.”  It noted that the applicant had been treated at the Mental
Health Facility on several occasions following the incident.  The VA
decision document also noted that the applicant had been “sexually
assaulted as a child” and that it was “impossible to say if the incident in
service caused the posttraumatic stress disorder or aggravated an already
existing PTSD.”

9.  The two statements from physicians with Bayview Associates were
addressed to the VA.  One statement was dated in August 2003 in which the
physician stated that the applicant “is experiencing the full range of PTSD
symptoms….”  The second statement was authored in March 2004.  The second
statement summarized the applicant’s condition and noted that attempts to
secure vocational training and gainful employment had not been successful
because of his extensive symptoms.

10.  Army Regulation 635-40 states 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.  When a Soldier is being
processed for separation for reasons other than physical disability,
continued performance of assigned duty commensurate with his or her rank or
grade until the Soldier is scheduled for separation, is an indication that
the applicant is fit.

11.  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 VA rating does not establish an error or injustice in the
separation or discharge of an individual from the Army not as a result of a
disability.  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.  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.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence, and the applicant has not provided any, that he
was physically unfit at the time of his separation from active duty in 1990
or that he had any disabling condition at the time, which warranted
referral for disability processing.  The applicant’s separation physical
examination noted that the applicant was qualified for worldwide assignment
and the applicant himself admitted in his statement to the ADRB that he
“performed [his] duties properly at all times.”

2.  The fact that the applicant subsequently received a disability rating
from the Department of Veterans Affairs, or that the ADRB chose to upgrade
the character of his discharge, is not evidence that he should have been
medically retired or separated from active duty in 1990, rather than
administratively discharged.  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.

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

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___JP___  ___TP __  ___KL___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.





                                  _____ Jennifer Prater______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040001551                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050215                                |
|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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