RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        FEBRUARY 8, 2005
      DOCKET NUMBER:  AR2004106710


      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. Deyon D. Battle               |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Margaret K. Patterson         |     |Chairperson          |
|     |Ms. Shirley L. Powell             |     |Member               |
|     |Ms. Susan A. 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 that his records be changed to show that he was
medically retired from the Army due to Post Traumatic Stress Disorder
(PTSD).  He also request that item number 30 (Physical Disability
Information Pertinent to the Dual Compensation Act of 1964) and number 36
(Remarks) on his Data for Retired Pay Sheet (DA Form 3713) be corrected by
changing the check marks from no to yes.

2.  The applicant states that his records currently reflect that he had a
major depressive disorder and that at the time that he was diagnosed, PTSD
was not a condition that resulted in people being medically discharged.  He
states that the regulation has changed since his discharge and that he
would appreciate having an accurate label for his condition.

3.  The applicant provides in support of his application a portion of his
Medical Evaluation Board (MEB) proceedings; a portion of his medical board
evaluation; and a copy of orders awarding him the Army Commendation Medal.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or
injustice, which occurred on 9 February 1988.  The application submitted in
this case is dated 16 June 2003; however, this Board did not receive his
application until 13 April 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.  On 4 July 1969, he enlisted in the Army for 3 years in the pay grade of
E-1. He successfully completed his training as a cook.  He had completed 2
years, 6 months and 4 days of total active service when he was honorably
discharged on 7 January 1972, under the provisions of Army Regulation 635-
200, chapter 5, section II as determined by secretarial authority, and he
joined the Army Reserve.  He reentered the Regular Army on 10 January 1975
and he remained on active duty through two additional reenlistments.
4.  On 22 November 1983, the applicant was admitted to the Silas B. Hays
Army Hospital for complaints of depression, poor memory and inability to
function as a mess supervisor in his unit.  The physician’s evaluation
indicates that at the time of admission, he had severe psychomotor
retardation, depression, insomnia, anorexia and all of the vegetative signs
of depression.  While hospitalized, he was treated with anti-depressants
and major tranquilizers and responded well to his medication.  The
physician stated that the applicant’s memory had improved; his affect had
improved; and that while recovering, he was given work therapy working in
pediatrics.  The physician went on to state that during the third week of
January 1984, the applicant walked into his office and stated that he had
started having nightmares and panic attacks and that he saw a movie that
had too much fighting and violence.  The applicant told his physician that
after seeing the movie he began having nightmares concerning the Vietnam
War.  The attending physician stated that the applicant’s condition started
deteriorating again, which necessitated admission to the psychiatric ward
on 31 January 1984, at which time his medication was changed.

5.  The physician noted that although the applicant remained in the
psychiatric ward, on 13 February 1984, he stated that he was very energetic
and was no longer depressed, even mentioning that his new medication was
taking effect.  He was diagnosed with (Axis I) Major depressive disorder,
recurrent, chronic severe with melancholia, moderately improved with
treatment.  Manifested by dysphoric mood insomnia; psychomotor retardation;
loss of interest or pleasure in useful activities; fatigue; feelings of
worthlessness; evidence and complaints of diminished ability to think or
concentrate; and inappropriate guilt.  The physician indicated that his
precipitating stress included his inability to function as a mess or food
supervisor; and histrionic-avoidant-dependent and possibly schizoid mixed
personality disorder and chronic PTSD.  His predisposition included
histrionic-avoidant-dependent and possibly schizoid mixed personality
disorder, moderate to severe.  (Axis III) Wart, right thumb, resolved with
treatment.  (Axis III) Post left mastoidectomy, 1976, secondary to
recurrent left ear otitis media.  (Axis III) Simple hyperopia, treated, and
pterygium of right eye, not treated.  The physician commented, in effect,
that the diagnosis made in Axis I was determined to be in the line of duty
(LOD) in view of the satisfactory performance of the service member as a
cook and the fact that he received a medal for being the number one cook in
Germany approximately 1 year ago.  He further commented that most of the
applicant’s problems at the time were due to major depression predisposed
by a chronic multiple personality disorder and Post-Vietnam War Neurotic
Syndrome.


6.  A Medical Evaluation Board (MEB) convened on 23 April 1984, to
determine whether the applicant should be referred to a Physical Evaluation
Board (PEB).  The MEB concurred with the previous diagnosis; however, the
board indicated that his conditions were not incurred in the line of duty;
that his conditions existed prior to service; that his conditions were not
of a cause incident to service; that that his conditions were not
aggravated by active duty; that he had reached his optimum hospital
improvement for disposition purposes; and that he had received his maximum
hospital benefit.  The MEB determined that he did not meet the retention
standards in accordance with Army Regulation 40-501, chapter 3-29 and found
him medically unfit for retention in the Army.  The MEB recommended that
the applicant be referred to a PEB for consideration.  On 24 April 1984,
the applicant agreed with the recommendation made by the MEB.

7.  A PEB convened 30 April 1984, to determine if the applicant was
physically fit for retention on active duty.  The PEB diagnosed him as
follows: (1) Major depressive disorder, chronic, productive of considerable
social and industrial impairment; with personality disorder and PTSD; (2)
Otitis media, left ear; and (3) Pterygium of the right eye.  The PEB found
him to be unfit for retention on active and recommended that he be placed
on the Temporary Disability Retired List (TDRL) with a combined rating of
60 percent and a reevaluation during April 1985.  The PEB further found
that, if retired because of disability, his retirement was not based on
disability resulting from injury or disease received in the LOD during a
period of war as defined by law.  The applicant concurred with the MEB
findings and he waived a formal hearing of his case on 10 May 1984.

8.  On 22 May 1984, the applicant was notified by the Physical Disability
Agency that a modification had been made to his PEB proceedings.  He was
informed that the modification resulted in his disability rating being
changed from 60 percent to 50 percent, as recommended by the PEB, since
considerable social and industrial impairment equates to a rating of 50
percent in accordance with the Department of Veteran Affairs Schedule for
Rating Disabilities.  The applicant concurred with the PEB findings on 3
July 1984.

9.  On 6 August 1984, a DA Form 3713 was prepared on the applicant.  On the
form, there was no entry made in item number 30, which is to be used for
physical disability information pertinent to the Dual Compensation Act of
1964 and applies to the permanent and temporary disability retirement of
Regular Army commissioned and warrant officers.  The information contained
in item number 36, which is to be used to include remarks, indicates that
the evidence of record reflects that the applicant was not a member of an
armed force on 24 September 1975, nor under a binding written agreement on
that date to
become such a member and that his disability was not caused by a combat-
related injury.  The information in remarks further indicates that he was
precluded from the provisions of Public Law 94-106.

10.  On 28 August 1984, a change was made to the item number 30 on the DA
Form 3713 to indicate that the evidence of record reflected that he was a
member of an armed force on 24 September 1975, and that his disability was
not caused by a combat-related injury.

11.  Accordingly, on 4 September 1984, the applicant was honorably retired
from the Army under the provisions of Title 10, United States Code, section
1202, by reason of physical disability (temporary) and he was placed on the
TDRL.  He was furnished a Certificate of Release or Discharge (DD Form 214)
to reflect his status and that time of his placement on the TDRL.

12.  The applicant was reevaluated on 10 December 1985, and the attending
physician recommended that he be referred to a PEB for consideration of
continued TDRL status.  The PEB convened on 22 April 1986 and recommended
that he remain on the TDRL with reexamination during the month of October
1987.

13.  On 15 October 1987, the applicant was reevaluated and the attending
physician indicated that he had two further psychiatric hospitalizations
since December 1985 and that both admissions were secondary to severe
depression and suicidal ideation.  During this evaluation, he was diagnosed
with Major Depression, recurrent, chronic severe with melancholia,
moderately improved with treatment, currently manifested by pervasive
dysphoric mood, psychomotor retardation, concentrate and inappropriate
guilt.  His diagnosis included a precipitating stress as an inability to
function in the military; a predisposition as a strong family history,
multiple previous hospitalizations and chronic PTSD; his impairment to
serve in the military as severe; and his impairment to civilian and
industrial adaptability as severe.  His condition was determined to have
been in the LOD.  The physician recommended that the applicant be presented
to a PEB for consideration of permanent retirement.

14.  On 3 December 1987, a PEB convened to determine whether the
applicant’s conditions had changed to the extent that he was fit for duty.
The PEB determined that although some change in his medical condition may
have been anticipated, for administrative adjudication purposes, his
disability was



considered to have stabilized.  The PEB recommended a 70 percent disability
rating for major depressive disorder with recurrent hospitalization;
productive of severe social and industrial impairment as indicated in the
TDRL narrative summary.  He was rated at 0 percent for history of otitis
media and 0 percent for pterygium of the right eye.  The PEB found him
physically unfit for retention in the Army and recommended that he be
permanently retired from the service with a combined disability rating of
70 percent.

15.  On 8 December 1987, in the form of certified mail, the applicant was
notified of the findings and recommendation of the PEB.  He was fully
apprised of his rights as to the formal hearing, and failed to make an
election or to request an extension of time to make a decision.  Therefore,
in accordance with Army Regulation 635-40, paragraph 7-20(e), it was deemed
that he had effectively waived his right to a formal hearing and the
proceedings were forwarded for further processing.

16.  On 22 January 1988, a DA Form 3713 was prepared on the applicant to
incorporate information at the time of his removal from the TDRL and his
placement on the Permanent Disability Retired List (PDRL).  Number 30 on
the DA 3713 continues to be used for the purpose of providing physical
disability information pertinent to the Dual Compensation Act.  However,
the fact that it only applies to Regular Army commissioned and warrant
officers is no longer reflected and the “no” block was checked to indicate
that he was not retired for a disability caused by an instrumentality of
war and his disability was not incurred in the LOD during a period of war.
Item number 36 continues to read that his disability did not result from a
combat related injury and that he is excluded from the provisions of Public
Law 94-106.

17.  Accordingly, on 8 February 1988, the applicant was removed from the
TDRL and he was placed on the PDRL on 9 February 1988.

18.  Title 10, United States Code, section 1202, provides for the placement
of a member on the TDRL when the disability may be permanent.  Placement on
the TDRL requires that the member meet the criteria of Title 10, United
States Code, section 1201.

DISCUSSION AND CONCLUSIONS:

1.  The actions by the Army in this case were proper and there is no doubt
to be resolved in favor of the applicant.

2.  The applicant’s contentions have been noted and his records do show
that he was diagnosed as having PTSD.  Nonetheless, although the final PEB
disability description does not actually use the words chronic PTSD, it
references the TDRL narrative summary which does use the words chronic
PTSD.  Additionally, his final PEB was conducted by authorized personnel
and a qualified physician prior to his retirement from the service.  His
records properly reflect his conditions up until he was permanently retired
from the Army and there is no change that needs to be made to his record
concerning his medical conditions.

3.  There appears to have been no errors made during the preparation of the
DA Form 3713 that was completed on 25 January 1988.  His MEB and his PEBs
show that his disability was not caused by an instrumentality of war and
that it was not the result of a combat related injury.  His records also
show that his disability existed prior to service.  He concurred with each
of the findings that were made by the MEB and the PEBs either in writing or
in the form of a lack of response to findings that were mailed to him for
concurrence.  Accordingly, his request is without merit and his records are
correct as currently reflected.

4.  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 this requirement.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 9 February 1988, therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 8 February 1991.  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

mkp_____  sap_____  slp   ____  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 K. Patterson_
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR2004106710                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050208                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |                                        |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  178  |108.0100.0000/DISABILITY DIAGNOSIS      |
|2.  180                 |108.0300.0000/LOD                       |
|3.  184                 |108.0700.0000/COMBAT INCURRED           |
|4.  185                 |108.0800.0000/INSTRUMENTALITY OF WAR    |
|5.                      |                                        |
|6.                      |                                        |


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