RECORD OF PROCEEDINGS


      IN THE CASE OF:



      BOARD DATE:           19 May 2005
      DOCKET NUMBER:  AR20040005934


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Raymond J. Wagner             |     |Chairperson          |
|     |Ms. Barbara J. Ellis              |     |Member               |
|     |Ms. LaVerne M. Douglas            |     |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, in effect, medical retirement with full
benefits.

2.  The applicant states, in effect, that he was wrongfully terminated
(discharged) on 15 December 1965.  He states that his unit commander
informed him he would be punished if he did not sign a waiver of his rights
and accept a general, under honorable conditions discharge (GD).  He
further states that he had completed four years of honorable active duty
service at the time of his discharge.  He also claims that he was injured
in the line of duty as a result of a motor vehicle accident that left him
with multiple physical and mental handicaps for life.

3.  The applicant provides the following documents in support of his
application:  Self-Authored Statement, Record of Proceedings Under Article
15, UCMJ
(DA Form 2627-1), Waiver of Rights Statement, Separation Documents,
Clinical Record (SF 502), Physical Profile Record, Physical Evaluation
Document,
X-Ray Reports, and Post Traumatic Stress Disorder (PTSD) Diagnosis and
Treatment Plan.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 15 December 1965.  The application submitted in this case
is dated 10 August 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 limitations 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’s record shows that he was initially inducted into the
Army and entered active duty on 13 November 1961.  He was trained in and
awarded military occupational specialty (MOS) 62B (Engineer Equipment
Repairer.

4.  On 26 April 1962, the applicant was honorably discharged for the
purpose of immediate reenlistment in the Regular Army (RA).  The separation
document (DD Form 214) he was issued at this time shows he completed 5
months and
14 days of active military service and that he held the rank of private/E-2
(PV2).

5.  On 27 April 1962, the applicant reenlisted in the RA for six years.
His Enlisted Qualification Record (DA Form 20) shows that he was promoted
to the rank of specialist four (SP4) on 16 October 1963, and that this is
the highest rank he attained while serving on active duty.

6.  The applicant’s record documents no acts of valor, significant
achievement, or service warranting special recognition.  The record does
reveal a disciplinary history that includes his acceptance of nonjudicial
punishment (NJP) under the provisions of Article 15 of the Uniform Code of
Military Justice (UCMJ) on
19 March 1963, for concealing a weapon in a box in his wall locker.  His
punishment for this offense included 14 days of extra duty and restriction.


7.  On 15 November 1965, a psychiatric evaluation of the applicant was
completed at Fort Carson, Colorado.  The examining psychiatrist diagnosed
the applicant with a personality disorder and concluded his condition did
not warrant separation under medical regulations.

8.  On 16 November 1965, the unit commander notified the applicant he was
being recommended for discharge under the provisions of Army Regulation
635-209, by reason of unsuitability.  The unit commander informed the
applicant of the basis for the contemplated separation action and informed
him of his rights.  The applicant completed a statement in which he waived
his right to a hearing before a board of officers, and he elected not to
submit a statement in his own behalf.  The applicant further indicated that
military counsel had been made available to him, but he did not desire
counsel.

9.  On 17 November 1965, the unit commander submitted a recommendation that
the applicant be discharged under the provisions of Army Regulation
635-209, by reason of unsuitability.  He stated that the action was being
taken on the recommendation of Fort Carson medical authorities, and that
the combined efforts of the chaplain’s office, medical and psychiatric
facilities and extensive counseling at the unit level had met with no
success in the applicant’s case.

10.  On 2 December 1965, a medical evaluation of the applicant was
completed by the battalion surgeon.  The examining physician outlined the
applicant’s medical history related to a motor vehicle accident on 5 June
1965, for which he had been hospitalized.  The physician further stated
that as of 17 August 1965, his findings were unremarkable and the applicant
was treated symptomatically with pain relievers and a bed board.  When the
applicant obtained no relief from his pain, he was referred to the
orthopedic clinic, where he received extensive treatment.  He further
indicated that when the applicant returned on sick call several times with
persistent complaints of back and shoulder pain, he was thoroughly
reevaluated by orthopedics with a finding of malingering.  The final
determination of this evaluation was that the applicant had minimal, if
any, functional physical defects and was fit for duty.

11.  On 3 December 1965, the separation authority approved the applicant’s
separation and directed he receive a general, under honorable conditions
discharge (GD).  On 15 December 1965, the applicant was discharged
accordingly.

12.  The DD Form 214 he was issued upon his final separation confirms he
completed a total of 4 years, 1 month and 3 days of active military
service.  This document further shows that the applicant held the rank of
SP4 and had earned no individual military awards or decorations at the time
of his discharge.

13.  On 21 June 1977, the Army Discharge Review Board (ADRB) voted to
upgrade the applicant’s discharge to fully honorable based on his honorable
discharge from a previous tour of military service and his satisfactory
active service for 24 months.

14.  The applicant provides medical documents confirming he was
hospitalized and treated for injuries he received in a motor vehicle
accident while on a field maneuver on 5 June 1965.  This clinical record
indicates the applicant was treated and that his hospital course was benign
and marked by gradual improvement.  It further stated that he was returned
to duty with a temporary profile.  The applicant also provides a Physical
Profile Record (DA Form 8-274) that shows he was give a temporary 3 profile
based on a chronic lumbar muscle strain.
15.  The applicant also provides medical treatment records from 1996, which
indicate he was treated for a diagnosed condition of moderate degenerative
changes in the cervical and lumbar spine.  He also provides a medical
treatment record, dated 10 October 2003, which contains a diagnosis of
PTSD.  No further supporting medical records containing the medical
history, or the basis for this diagnosis was provided.

16.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement,
or Separation), then in effect, established the Army Physical Disability
Evaluation System (PDES) and set forth policies, responsibilities, and
procedures that apply in determining whether a Soldier was unfit because of
physical disability to reasonably perform the duties of his or her office,
grade, rank, or rating.  Chapter 3 provided guidance on presumptions of
fitness.  It stated that the mere presence of impairment does not, of
itself, justify a finding of unfitness because of physical disability.  In
each case, it is necessary to compare the nature and degree of physical
disability present with the requirements of the duties the Soldier
reasonably may be expected to perform because of his or her office, grade,
rank, or rating.  Separation by reason of disability requires processing
through the PDES.

17.  Chapter 4 of the same regulation, then and still in effect, contains
guidance on processing through the PDES, which includes the convening of a
Medical Evaluation Board (MEB) to document a Soldier's medical status and
duty limitations insofar as duty is affected by the Soldier's status.  If
the MEB determines a Soldier does not meet retention standards, the case
will be referred to a Physical Evaluation Board (PEB).  It further states
that the PEB evaluates all cases of physical disability equitably for the
Soldier and the Army.  The PEB investigates the nature, cause, degree of
severity, and probable permanency of the disability of Soldiers whose cases
are referred to the board.  It also evaluates the physical condition of the
Soldier against the physical requirements of the Soldier's particular
office, grade, rank, or rating.  Finally, it makes findings and
recommendations required by law to establish the eligibility of a Soldier
to be separated or retired because of physical disability.

18.  PTSD, an anxiety disorder, was recognized as a psychiatric disorder in
1980 with the publishing of the Diagnostic and Statistical Manual of Mental
Disorders (DSM).  The condition is described in the current DSM-IV, pages
424 through 429.  The Army used established standards and procedures for
determining fitness for entrance and retention and utilized those
procedures and standards in evaluating the applicant at the time of his
discharge.  The specific diagnostic label given to an individual’s
condition a decade or more after his discharge from the service may change,
but any change does not call into question the application of then existing
fitness standards.
19.  Title 38, United States Code, sections 1110 and 1131, permit the VA to
award compensation for disabilities which were incurred in or aggravated by
active military service.  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.

20.  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.  The U.S. Court of Appeals, observing
that applicants to the ADRB are by statute allowed 15 years to apply there,
and that this Board's exhaustion requirement (Army Regulation 15-185,
paragraph 2-8), effectively shortens that filing period, has determined
that the 3 year limit on filing to the ABCMR should commence on the date of
final action by the ADRB.  In complying with this decision, the Board has
adopted the broader policy of calculating the 3-year time limit from the
date of exhaustion in any case where a lower level administrative remedy is
utilized.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he should have received a medical
retirement with full benefits, and the supporting evidence he provided were
carefully considered.  However, there is insufficient evidence to show he
was coerced into accepting the discharge by his unit commander, or that he
was suffering from a disabling medical condition at the time of his
discharge.

2.  The evidence of record confirms the applicant was separated for
unsuitability in accordance with the applicable regulation.  All
requirements of law and regulation were met and the rights of the applicant
were fully protected throughout the separation process.

3.  By regulation, the mere presence of impairment does not, of itself,
justify a finding of unfitness because of physical disability.  In each
case, it is necessary to compare the nature and degree of physical
disability present with the requirements of the duties the soldier
reasonably may be expected to perform because of his or her office, grade,
rank, or rating.  The applicant’s military medical record provides no
indication that he suffered from a physical or mental condition that
rendered him unfit to perform his military duties at the time of his
discharge.
4.  The available medical records show that while the applicant was treated
for injuries he received in a motor vehicle accident, and that these
injuries were not permanently disabling.  Further, the 2003 PTSD diagnosis
and the other medical evidence submitted by the applicant do not call into
question the Army’s application of the fitness standards that existed at
the time of his separation.  As a result, there is an insufficient
evidentiary basis to support granting the requested relief.

5.  The applicant referred to his VA file, but provided no rating decision
documentary evidence from his VA medical record.  However, any VA rating he
may receive does not establish entitlement to medical retirement or
separation.  The VA is not required to find unfitness for duty.  Operating
under its own policies and regulations, the VA awards ratings because a
medical condition is related to service, i.e., service-connected.

6.  Furthermore, the VA can evaluate a veteran throughout his lifetime,
adjusting the percentage of disability based upon that agency's
examinations and findings. The Army must find unfitness for duty at the
time of separation before a member may be medically retired or separated.
As a result, given the differences in the two systems, while it is
appropriate for the VA to provide medical treatment for service-connected
medical conditions, this does not automatically entitle the applicant to a
medical separation or retirement from the Army.

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 this requirement.

8.  Records show the applicant exhausted his administrative remedies in
this case when his case was reviewed by the ADRB on 21 June 1977.  As a
result, the time for him to file a request for correction of any error or
injustice to this Board expired on 20 June 1980.  However, he 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 FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___RJW _  __BJE __  ___LMD_  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.




            ____Raymond J. Wagner___
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040005934                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/05/19                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1965/12/15                              |
|DISCHARGE AUTHORITY     |AR 635-209                              |
|DISCHARGE REASON        |Unsuitability                           |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |108.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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