RECORD OF PROCEEDINGS


      IN THE CASE OF:



      BOARD DATE:        23 November 2005
      DOCKET NUMBER:  AR20050000885


      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. W. W. Osborn, Jr.             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John N. Slone                 |     |Chairperson          |
|     |Mr. Patrick H. McGann, Jr.        |     |Member               |
|     |Mr. Larry J. Olson                |     |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, that her discharge be changed to
medical retirement.

2.  The applicant states that she suffers post traumatic stress disorder
(PTSD) because she was the victim of sexual harassment and death threats
from her supervisor.  She should have been treated, but she was transferred
and sexually harassed by another supervisor.  She contends that the officer
in charge of the mess made sexual advances to her and once sexually
assaulted her in the back of a truck.  She blames the behavior for which
she received nonjudicial punishment (NJP) under Article 15, Uniform Code of
Military Justice (UCMJ) and other misbehavior on PTSD.  She was coerced
into leaving the military by being threatened with imprisonment for 10
years for adultery.  Her release from the military was devastating, she was
disqualified from unemployment compensation, had no way to earn a living
and the led to depression and substance abuse.

3.  The applicant provides a copy of a letter to the Board of Veterans
Appeals from a civilian psychologist who describes her as 60 percent
service connected for bipolar disorder and PTSD.  She also submits copies
of some service records and her own statement to the Department of Veterans
Affairs (VA).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 11 August 1983.  The application submitted in this case
is dated 16 January 2005.

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 enlisted in the Regular Army on 27 January 1981.  She
completed training as a cook and was stationed in Hawaii in accordance with
her station of choice enlistment option.  On 1 January 1982 she was
advanced to pay grade E-3.
4.  The applicant received letters of appreciation for her duty performance
at the local military museum in the Spring of 1982.  Then, in January 1983
she received NJP for using disrespectful language to a noncommissioned
officer which resulted in a suspended reduction in rank.  On 8 April 1983
the suspension was vacated and she received another NJP for absence from
her appointed place of duty.  She married a fellow soldier on 28 April
1983.

5.  On 6 July 1983 the applicant was notified of her intended elimination
from the service for unsatisfactory performance as evidenced by the two
NJPs and counseling for additional violations.  The notification included a
narrative description of her recent assignments, duty performance and
conduct.  This included a Criminal Investigation Division (CID)
investigation into charges of fraternization with the mess officer while
deployed to Korea.  CID titled the applicant for adultery with the married
officer.

6.  The applicant consulted with counsel and acknowledged the notification
and that she had been advised of her rights.  The company commander
recommended separation with an honorable discharge and the separation
authority approved the recommendation.

7.  An 8 July 1983 medical examination found her qualified for separation.
In the medical history which she provided for that physical examination,
she reported no trouble sleeping, no depression or excessive worry, no loss
of memory and no nervous trouble of any sort.  At a mental status
evaluation on 18 July 1983 the applicant's behavior was normal.  She was
fully alert and oriented and displayed an unremarkable mood.  Her thinking
was clear, her thought content normal and her memory good.  There was no
significant mental illness.  The applicant was mentally responsible.  She
was able to distinguish right from wrong and to adhere to the right.

8.  On 11 August 1983 the applicant was separated with an honorable
discharge, by reason of Unsatisfactory Performance, under the provisions of
Army Regulation 635-200, chapter 13.  She had 2 years, 6 months, and 15
days of creditable service and no lost time.

9.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 13 contains the policy and
outlines the procedures for separating individuals for unsatisfactory
performance, and provides, in pertinent part, that commanders will separate
a member under this chapter when, in the commander's judgment, the member
will not develop sufficiently to participate satisfactorily in further
training and/or become a satisfactory Soldier.

10.  Army Regulation 40-501, paragraph 3-3b(1), as amended, provides that
for an individual to be found unfit by reason of physical disability, her
must be unable to perform the duties of her office, grade, rank or rating.

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 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.  The applicant was performing duty at the time she was separated.
Furthermore, she was found fit at a medical examination.  Additionally,
there is no substantiating evidence to show any emotional or mental
problems at the time of her separation.  Indeed, she did not report any
such problems on the medical history she provided for her separation
physical.

2.  The fact that the VA, in its discretion, may have awarded the applicant
a disability rating is a prerogative exercised within the policies of that
agency.  It does not, in itself, establish physical unfitness for
Department of the Army purposes.
3.  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.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 11 August 1983; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 10 August 1986.  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

__JNS___  _PHM___  __LJO __  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.




                                  ___      John N. Slone__________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR                                      |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051123                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY)                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |108.04                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]