RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  12 April 2007
	DOCKET NUMBER:  AR20060008014 


	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. Antoinette Farley

Analyst

The following members, a quorum, were present:


Mr. Curtis L. Greenway

Chairperson

Mr. Michael J. Flynn

Member

Mr. Edward E. Montgomery

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 makes his request through counsel.

2.  The applicant makes his statements through counsel.

3.  The applicant provides records through counsel in support of this case.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant's records be corrected to show 100 percent service compensation retroactive back to the date of his retirement from the Army with full benefits.

2.  Counsel, in effect, states the applicant was not properly evaluated by the medical board system and was unjustly awarded medical compensation of a 30 percent disability with placement on the Temporary Disability Retired List (TDRL).  

3.  Counsel essentially states that based upon the medical evaluations received from various medical institutions, it is without a doubt that the medical board's evaluation was in error.  

4.  Counsel provides copies of a DA Form 199 (Physical Evaluation Board (PEB) proceedings), dated 26 April 1990; DA Form 199, dated 18 May 1992; Department of Veterans Affairs (DVA), medical treatment records; a DD Form 4856 (General Counseling Form), dated 14 March 1988; a DA Form 4187 (Personnel Action), dated 6 February 1988; a undated nine-page self- authored letter; a undated one-page self-authored letter; and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 29 June 1990 in support of the applicant's case.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 29 June 1990, the date of his removal from the Temporary Disability Retired List.  The application submitted in this case is dated 16 May 2006.

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.  Records show the applicant enlisted in the Regular Army on 10 January 1978. He completed basic and advanced individual training and was awarded the military occupational specialty of 670 (Medium Helicopter Repairer). 

4.  Headquarters Tripler Army Medical Center (TAMC), Hawaii Orders 93-13, dated 24 May 1989, reassigned the applicant to Medical Holding Company, TAMC, Hawaii, effective 6 June 1989, pending the results of a medical board.  These orders also show that the applicant was initially hospitalized on 12 May 1989.

5.  The applicant's June 1989 MEB proceedings are not available for review with this case.

6.  On 26 April 1990, a PEB was convened at Walter Reed Medical Center, Washington.  The PEB proceedings show that the applicant was diagnosed with a schizoaffective disorder.  The members of the PEB found the applicant was physically unfit for active duty in his grade and rank and recommended a disability rating of 30 percent.  The PEB further recommended that the applicant be placed on the TDRL with a reexamination on 1 October 1991. 

7.  The applicant's records show that he requested to be continued on active duty and reassigned to duties he would be able to perform within the limitation imposed by his physical disability instead of separation.  

8.  On 21 May 1990, the applicant concurred with the recommendations of the PEB and waived his rights to a formal hearing.  The applicant's concurrence was authenticated by his signature on DA Form 199, dated 21 May 1990. 

9.  Department of the Army U.S. Total Army Personnel Command, Alexandria, Virginia Orders Number D115-7, dated 8 June 1990 shows the applicant would be retired on 29 June 1990.  The order also shows that the applicant would be placed on the TDRL on 30 June 1990 with a 30 percent disability rating.

10.  The applicant's records contain a DD Form 214 which shows he was separated from active duty on 29 June 1990, for the purpose of retirement.  This form also shows that the applicant was separated in the rank of sergeant first class/pay grade E-7.

11.  U.S. Total Army Personnel Command, Alexandria, Virginia Orders D12-236, dated 26 September 1991, shows the applicant was scheduled for a periodic physical examination at BACH, Fort Campbell, Kentucky in December 1991.  Headquarters, Medical Department Activity, Fort Campbell rescheduled his periodic TDRL evaluation for the month of February 1992.

12.  The applicant's record contains the findings of a TDRL periodic physical examination and a MEB assessment convened on 18 May 1992.  The MEB assessment shows that the applicant's schizoaffective disorder was currently in remission and that he was receiving medication treatment for chronic and moderate severity manifested by recurrent episodes of withdrawal with disability in activities of daily living and suspiciousness with no stress or predisposition.  The MEB assessment also shows he had a pass/dependent personality disorder.

13.  The MEB assessment shows that the applicant was unfit for duty under the provisions of Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3 and referred his case to the PEB for consideration of a permanent disability retirement.  

14.  The MEB recommendation shows that the applicant was competent, able to manage his own affairs, had the capacity to understand the nature of the PEB proceedings was no danger to self or others, and that he should continue supportive psychotherapy and psychopharmacology at the nearest Veterans Administration. 

15.  A PEB was convened on 18 May 1992.  The PEB determined that applicant suffers from schizoaffective disorder which was in remission, on medication for recurrent episodes of withdrawal, disability in activities of daily living, and suspiciousness with no stress or predisposition.  

16.  The PEB found that the applicant to be medically unfit for duty and recommended he be permanently retired with a 30 percent disability rating.  On 13 June 1992, the applicant concurred with the findings of the PEB and waived a formal hearing as authenticated by his signature.

17.  U.S. Total Army Personnel Command Orders Number D177-23, dated 8 September 1992, released the applicant from the TDRL due to a permanent physical disability on 30 June 1990 and permanently retired him effective 8 September 1992 with a 30 percent disability rating.  The applicant was placed on the Permanent Disability Retired List in the rank of sergeant first class/pay grade of E-7.
18.  Counsel submitted a DA Form 4187 (Personnel Action), dated 6 February 1988, which shows the applicant requested reassignment due to extreme family, financial, and medical problems.  This form does not include a response by the applicant's command.

19.  Counsel submitted a DD Form 4856 (General Counseling Form), dated 14 March 1988, which shows the applicant's senior noncommissioned officer counseled him about poor production, failing station, administrative problems, personnel problems, and failure to accept responsibility. 

20.  Counsel submitted a copy of the applicant's medical treatment record from Wesley Long Community Hospital, dated 11 November 2003.  The medical treatment record shows the applicant was involuntarily admitted to the hospital with a history of depressive symptoms, unable to speak or eat, had not been drinking, unable to communicate, essentially mute, and appearing almost catatonic.  The medical treatment report shows that the applicant had a history of these symptoms for approximately 10 years and was given ECT (Electroconvulsive Therapy) with positive response.  

21.  Counsel provides a copy of the applicant's DVA medical treatment record, dated 30 December 2004.  The medical record summary shows that the applicant worked full time for two years as a custodian with the Postal Service and prior to the above position six or seven months for a security service.  The medical summary also shows during the applicant's mental status evaluation, he was alert, cooperative, friendly, neatly dressed, soft-spoken, answered questions, and volunteered information.  

22.  The medical summary shows that the applicant was diagnosed with depressive disorder, personality disorder with schizoid and dependent features, difficulty with tolerating stress, and moderate impairment of psychosocial functioning.  

23.  The medical summary shows the applicant diagnosis of schizoaffective disorder did not meet the necessary diagnostic criteria and that the applicant had chronic depression through his adult life, periodic decompensations which resulted in hospitalization because of withdrawal, sleep disturbance, and not eating.  The medical summary shows the applicant was capable of managing his own financial affairs.

24.  Counsel provides the applicant's unfinished one-page letter draft requesting not to be hospitalized, treatment with medication, conditional work status, or separation.
25.  Counsel provides the applicant's undated nine-page letter to his brother in which he alleges that he had an outstanding career until reassignment to his last recruitment position, unfair treatment by his command, and marital problems. 

26.  In the processing of this case, a staff advisory opinion was obtained from the United States Army Physical Disability Agency, Walter Reed Army Medical Center, Washington, DC, dated 21 November 2006.  The opinion states that the applicant submitted a request through counsel for correction of his diagnosis at the time of his separation from the military and an increase in disability compensation.  

27.  The opinion further states that there is no evidence of any error or injustice in regard to the applicant's disability processing.  The opinion states that the applicant's medical records provided through counsel indicate the applicant's condition had subsequently worsened and the DVA is currently treating him for a depressive disorder.  The opinion further states, that at the time of the applicant's retirement, the evidence fully supported the applicant's diagnosis and his psychiatric condition was independently unfitting.  

28.  The opinion states in order for the applicant to be compensable at the time of his TDRL re-evaluation, the conditions must have been previously found unfit while entitled to basic pay (10 USC 1201) or shown to have been directly caused by the previously found unfitting conditions.  

29.  The opinion further states this did not occur in his case and the fact the DVA has now diagnosed his current condition as depression does not signify that any mistake was made in 1990.  The opinion further states even if a different diagnosis had been improperly considered, it would not have made any difference as all psychiatric conditions are rated under the same Veterans Administration Schedule for Rating Disabilities (VASRD) criteria.  The opinion continues that exacerbations in the applicant's condition since 1992 is the proper responsibility of the DVA; therefore, the applicant was properly rated for his condition in 1992.

30.  The opinion concludes that the PEB's findings are correct and supported by the preponderance of the evidence.  The opinion continues that there is no evidence of error and all regulatory and statutory requirements were met.  The opinion recommends no change be made to the applicant's military record.  



31.  On 28 November 2006, a copy of the advisory opinion was forwarded to the applicant through his counsel for rebuttal.  There is no evidence in the available records which show counsel responded to the advisory opinion on behalf of the applicant by the 30 day suspense date.

32.  Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.

33.  Title 38, United States Code, sections 310 and 331, permits DVA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The DVA, however, is not required by law to determine medical unfitness for further military service.  

34.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) paragraph 3-5c, states that the fact that a Soldier has a condition listed in the Veterans Administration Schedule for Rating Disabilities (VASRD) does not equate to a finding of physical unfitness.  An unfitting, or ratable condition, is one which renders the Soldier unable to perform the duties of his or her office, grade, rank, or rating in such a way as to reasonably fulfill the purpose of his or her employment on active duty.

35.  Army Regulation 635-40, paragraph 3-5d, states 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.  Any non-ratable defects or conditions will be listed in item 8 of the PEB Proceedings, but will be annotated as non-ratable.

DISCUSSION AND CONCLUSIONS:

1.  Counsel contends the applicant's records should be corrected to show a permanent disability rating of 100 percent based upon an error in the applicant's MEB diagnosis at the time of his retirement from active duty and placement on the TDRL with 30 percent disability on 29 June 1990.  





2.  Evidence shows the applicant concurred with the findings and recommendations of the MEB and PEB.  The applicant did not pursue an appellate process and evidence of record confirms the applicant was properly processed through the Physical Disability Evaluation System in accordance with the applicable laws and regulations.

3.  The applicant's medical records indicated that the applicant's condition had subsequently worsened and the DVA is currently treating him for a depressive disorder and other conditions after being placed on the TDRL.  

4.  Evidence of record shows that the applicant's medical diagnosis listed as schizoffective disorder had been changed from a preliminary diagnosis of depression after a conference of all his medical caregivers at the hospital.  The applicant's other conditions were not significant problems and found not to be unfitting at the time of placement on the TDRL or during TDRL reevaluation. However, the applicant's initial medical condition changed after being hospitalized at the DVA medical facilities and civilian medical facilities several times for psychiatric problems due to discontinuing prescribed medications and follow-up psychiatric therapy.  

5.  The DVA, 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.

6.  An award of a higher DVA rating does not establish error or injustice in an Army disability 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.  

7.  Furthermore, the DVA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.

8.  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.
9.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 29 June 1990; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 28 June 1993.  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

_MJF____  _EEM___  __CLG__  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.




  Curtis L. Greenway_
          CHAIRPERSON




INDEX

CASE ID
AR20060008014
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
1990/06/29
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.