RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        14 November 2006
      DOCKET NUMBER:  AR20060001651


      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. Maria C. Sanchez              |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Curtis Greenway               |     |Chairperson          |
|     |Mr. Thomas M. Ray                 |     |Member               |
|     |Ms. Peguine M. Taylor             |     |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 reconsideration to show that he retired by
reason of physical disability after completing 20 years of creditable
service.

2.  The applicant states that he was "not mentally competent to waive his
due process rights at the time of his discharge."

3.  The applicant provides 24 pages of psychiatric evaluations from a
private physician in support of his application.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were
summarized in the previous consideration of the applicant's case by the
Army Board for Correction of Military Records (ABCMR) in Docket Number
AR20040004864, on 24 February 2005.

2.  On 6 May 1988, the applicant was involved in a helicopter crash.  On 12
July 1989, the Medical Evaluation Board (MEB) diagnosed the applicant with
severe trauma with compression fractures of T-12, and L-1,2, and 4; grade I
spondylolisthesis L-4 on L-5; marked restriction of motion lumbar spine in
all degrees of freedom; status post pulmonary embolism; closed head trauma
with post traumatic encephalopathy; severe low back pain; sciatica; left
orbital rim fracture with resultant decrease in visual acuity; and visual
disturbance.

3.  An addendum to the MEB indicated that a psychiatry consultation
revealed the applicant had moderate post concussive encephalopathy [brain
disease] with an unknown prognosis.  The addendum also noted that he had
mild visual perceptual defects of a moderate deficit in visual detail; also
minimal to moderate deficit in visual organization with severe deficit
visual perceptual rate of response with poor self-correction and accuracy
for math and functional testing of daily activities.  The MEB recommended
that he be referred to a Physical Evaluation Board (PEB).

4.  On 20 July 1989, an informal PEB found the applicant to be unfit due to
compression fractures of T-12 and L-1, 2, and 4 and Grade I
spondylolisthesiis L-4 on L-5 with residual marked limitation of motion and
sciatica.  The PEB also found him to be unfit due to a head injury with
traumatic encephalopathy and
visual perception impairment productive of definite social and industrial
impairment; therefore, the PEB recommended he be placed on the temporary
disabled retired list (TDRL).  On 21 July 1989, the applicant concurred
with the PEB's findings and waived for a formal hearing.

5.  On 2 November 1989, the applicant was released from active duty and
placed on the TDRL effective 3 November 1989 with a 60 percent disability
rating.  During the 1992 TDRL periodic physical examination, it was
recommended that the applicant be removed from the TDRL and permanently
retired.  On 17 November 1992, the applicant agreed with the findings and
recommendation; therefore, effective 15 February 1993, he was removed from
the TDRL and permanently retired with a disability rating of 70 percent.

6.  The applicant provides 24 pages of a psychiatric evaluation from a
private physician as new evidence with his reconsideration request.

7.  There is no evidence and the applicant did not provide any evidence
that shows the PEB did not consider the applicant's mental condition at the
time of their evaluation.

8.  Army Regulation 635-40 establishes the Army Physical Disability
Evaluation System (PDES) and sets forth policies, responsibilities, and
procedures that apply in determining whether a Soldier is unfit because of
physical disability to reasonably perform the duties of his or her office,
grade, rank, or rating.  Paragraph 3-1 contains guidance on the standards
of unfitness because of physical disability.  It states, in pertinent part,
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 their office, grade, rank, or rating.

9.  Paragraph 3-5 of the PDES regulation contains guidance on rating
disabilities. It states, in pertinent part, that there is no legal
requirement in arriving at the rated degree of incapacity to rate a
physical condition which is not in itself considered disqualifying for
military service when a Soldier is found unfit because of another condition
that is disqualifying.  Only the unfitting conditions or defects and those
which contribute to unfitness will be considered in arriving at the rated
degree of incapacity warranting retirement or separation for disability.



10.  Title 38, United States Code, sections 1110 and 1131, permits the
Department of Veterans Affairs (VA) to award compensation for a medical
condition which was incurred in or aggravated by active military service.
The VA, however, is not required by law to determine medical unfitness for
further military service.

11.  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.  The VA can evaluate a veteran
throughout his lifetime, adjusting the percentage of disability based upon
that agency's examinations and findings.  However, these changes do not
call into question the application of the fitness standards and the
disability ratings assigned by proper military medical authorities during
the applicant’s processing through the Army PDES.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requested reconsideration to show he retired with 20
years of creditable service and by reason of physical disability.

2.  There is no evidence and the applicant did not provide any evidence
that shows he had 20 years of creditable service.

3.  The applicant contends that he was not mentally competent during the
time of his discharge process.

4.  The applicant provided several pages of a psychiatric evaluation from a
private medical physician which shows the applicant's mental capacity has
deteriorated over time.  Notwithstanding the new evidence and argument
submitted by the applicant, the evidence of record confirms that the
applicant's mental condition was evaluated and considered in the PEB's
decision.

5.  The evidence also confirms the applicant concurred with the findings
and recommendations of both the MEB and PEB and that these findings and
recommendation were subsequently approved for The Secretary of the Army.
Evidence further confirms the applicant was discharged accordingly showing
retirement by reason of physical disability.

6.  Absent evidence to the contrary, the findings of the PEB a presumed to
be valid.  Therefore, there is not basis to grant the relief requested.

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
provide any new medical evidence that would call into question the original
decision of the PEB.  As a result, there is an insufficient evidentiary
basis to support a change to his retirement or his disability rating at
this time.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

_TMR____  _CG____  _PMT___  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 to amend the decision of
the ABCMR set forth in Docket Number AR20040004864, dated 24 February 2005.




                                     _Curtis Greenway  _
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20060001651                           |
|SUFFIX                  |                                        |
|RECON                   |2004/02/24                              |
|DATE BOARDED            |YYYYMMDD                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1989/11/02                              |
|DISCHARGE AUTHORITY     |AR 635-40                               |
|DISCHARGE REASON        |Physical Disability -temporary          |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  179  |108.0200.0000                           |
|2.  177                 |108.0000.0000                           |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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