RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 February 2007
	DOCKET NUMBER:  AR20060009895 


	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. Anita McKim-Spilker

Analyst

The following members, a quorum, were present:


Mr. James E. Anderholm

Chairperson

Mr. Jerome L. Pionk

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 requests a medical discharge.

2.  The applicant states, in effect, that he was medically unfit to continue active duty because of events occurring while he was in the Army.  The applicant contends that he did not know he had post-traumatic stress disorder (PTSD) and severe depression until the 1990s.  He was raped and terrorized when he was on active duty in Germany, and ordered not to assist a badly injured accident victim. He claims he was so miserable in Germany that he reenlisted to go to the Republic of Vietnam and while there, he was hijacked (sic), threatened with a gun and robbed; he was also given drugs by one of his friends and, after becoming agitated after drinking one night, was padlocked in a hut.  He states that he could not cope with the Army and asked to be discharged.  However, he was discharged without a good psychological evaluation or testing to determine what had caused him to become apathetic. 

3.  The applicant provides a copy of a MMPI (Minnesota Multiphasic Personality Inventory) Feedback Sheet that he indicates a Department of Veterans Affairs (DVA) psychologist gave him.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 13 February 1975, the date of his discharge from the Army.  The application submitted in this case is dated 7 July 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.  On 28 October 1971, the applicant enlisted in the Regular Army for a period of three years.  He was trained in, awarded, and served in military occupational specialty (MOS) 91B (Medical Specialist).  


4.  On 13 September 1972, the applicant reenlisted for a period of three years.  He attained the grade of specialist five/E-5, and received the Army Commendation Medal, the Army Good Conduct Medal, the National Defense Service Medal, the Vietnam Service Medal, and Republic of Vietnam Gallantry Cross with Palm Unit Citation.     

5.  The applicant was assigned to Headquarters and Headquarters Battery, 6th Battalion, 52nd Air Defense Artillery in Germany from 17 May 1972 through
24 September 1972.  The applicant's DA Form 2166-4 (Enlisted Efficiency Report) for the period May – June 1972 (Special Report), while in Germany, shows that he was rated as "Outstanding" in adaptability, attitude, initiative, leadership, responsibility, and duty performance.  His rater indicated that he was an outstanding enlisted man and should be retained in the Army.  The reviewer concurred with the rater.  There is no evidence in the file that shows the applicant was raped and terrorized or ordered not to assist a badly injured accident victim while he was in Germany.  The record does show that he reenlisted for assignment to the Republic of Vietnam.

6.  A review of the applicant's Enlisted Efficiency Report while assigned to the 575th Medical Detachment, Republic of Vietnam, shows that he was again rated as outstanding in adaptability, attitude, initiative, leadership, responsibility, and duty performance.  His rater stated that the applicant "has performed his duties in the emergency room with outstanding dedication to his work.  He knows his job and performs it with efficiency.  He devotes his time off to better himself in his MOS, and out of his MOS.  This man reflects credit upon himself and the U.S. Army."  The reviewer concurred with the rater.  There is no evidence in the record to show the applicant was hijacked (sic) and threatened with a gun and robbed, or was given drugs by one of his friends and padlocked in a hut. 

7.  On 9 March 1973, the applicant departed the Republic of Vietnam in casual status en route to Fort Riley, Kansas.  On 17 June 1974, the applicant was selected for training in MOS 91C (Clinical Specialist) and reassigned to Fort Jackson, South Carolina. 

8.  Upon completion of training in MOS 91C, the applicant was assigned to Headquarters and Headquarters Company, 46th Engineer Battalion at Fort Rucker, Alabama.  

9.  On 2 December 1974, while at Fort Rucker, the applicant requested authorization to reside off-post and receive quarters allowance.  He indicated that he had never been able to adjust to troop quarters, that residing off-post would allow him to create a comfortable atmosphere which would enable him to perform his military assignment at an exceptional level.  The applicant's unit commander recommended approval of his request; however, his request was denied at brigade level because there were adequate post quarters.  

10.  The denial of quarters allowance appeared to bother the applicant and, on about 9 January 1975, he also requested action to be discharged.  In his request, the applicant indicated that he had accepted a position as the unit reenlistment noncommissioned officer with the 46th Engineer Battalion because the 427th Medical Company did not have an E-5 slot.  He stated:  "I entered the Army under VOLAR, Modern and Professional Army advertisements.  I was ignorant enough to believe that the Army really intended to send Mickey Mouse back to the cartoon world.  After the completion of over three years active duty, it's apparent to me that the ancient writers of our regulations and ridiculous traditions of the Army will always prohibit the development of a modern Army.  I no longer have a goal to work toward.  I lack faith in the U.S. Army.  No longer am I able to convince myself to try once again, that the days of a modern Army are near.  My attitude makes it impossible to consider me useful to the U.S. Army.  The Army offers me no initiative in its world of ancient regulations and traditions.  Request immediate action be taken to rid the Army of me.  I am willing to accept any type of discharge, to include a dishonorable one (emphasis added.)

11.  On 17 January 1975, the applicant filed a Department of the Army Inspector General (DAIG) complaint over the denial of his request to reside off-post.  In his complaint, he charged discrimination against him because of his marital status (single).  He argued that a private/E-1 that is married is authorized quarters allowance and allowed to reside off-post, and that as an E-5 with over 3 years of service, he was denied the same privileges as a private.  He further stated "...Disapproval of my request for quarters allowance has made it clear to me that I have during my period of active duty, been discriminated against due to my marital status.  It is also apparent that the statement that the U.S. Army is an Equal Opportunity Employer is not a true statement."    

12.  On 20 January 1975, the applicant wrote another letter to his unit and brigade commanders.  In this letter, he indicated that his unit commander informed him he was crazy and he was providing a second request to clarify his request.  He further indicated that when he arrived to the 46th Engineer Battalion, the unit was on Reforger and he worked with the Medical Section of Headquarters Company.  During this period, he learned that the 427th was not authorized an E-5 and he became quite upset.  He was reassigned from South Carolina from a position he enjoyed and where he was performing well, and where he was allowed quarters allowance.  The first sergeant offered him the position as the unit reenlistment NCO, and he chose to stay rather than being assigned to the 427th.   

13.  He further indicated that he found the reenlistment NCO position challenging; he had difficulties in the performance of his duties due to lack of cooperation at various offices, but overall he was not completely dissatisfied with the position.  However, he was reassigned from a Health Service Command, to a FORSCOM unit, which to him was undesirable.  He reiterated that his attitude made it impossible to consider him as a useful asset to the Army, and he had no choice but to request that his enlistment contract be terminated.  He again requested immediate action to be eliminated from the Army and indicated that he would accept any type of discharge his command felt he warranted.

14.  On 24 January 1975, the Fort Rucker IG, advised the applicant that his complain had been forwarded to DAIG.  This letter also reiterated that basic allowance for quarters was designed to aid a married Soldier in providing quarters for his family.  It was also designed to replace adequate quarters for the unmarried Soldier when adequate quarters could not be furnished by the Army.  Adequate quarters were available at Fort Rucker. 

15.  On 29 January 1975, the applicant underwent a mental status evaluation.  The examiner found the applicant mentally responsible and able to distinguish right from wrong.  His impression was the applicant's thought content was normal, he was not depressed, fully oriented and alert, and his behavior was normal.  He met the retention standards prescribed by Army regulations. 

16.  On 4 February 1975, the unit commander notified the applicant of his intent to initiate action to separate him from the Army under the provisions of chapter 13, Army Regulation 635-200 (Enlisted Personnel Separations) by reason of unsuitability due to apathy, and lack of interest and cooperation.  

17.  The commander indicated that, in his opinion, the applicant did not fit the criteria for separation under chapter 13; however, since there were no provisions for enlisted members to resign from the service, this would serve to satisfy the needs of the service and the desires of the applicant.  He indicated the applicant was a bachelor, had completed six different assignments, and had completed
39 months of service with a clean record.  He was initially reassigned to the 427th Medical Company, but no E-5 positions were available in the unit.  Since he was denied off-post quarters, the applicant had openly questioned the rationality of Army personnel policies and procedures, and now had a compelling desire for immediate separation from the Army.  From his discussions with the 
applicant, the commander concluded that he was intelligent, well-informed of the possible consequences of the separation action, and totally dedicated to returning to civilian life.  He opined that he was no longer of any value to the Army because of his state of mind.

18.  On 4 February 1975, the applicant was advised of his rights.  He waived his right to counsel and to appear before an administrative separation board.

19.  On 11 February 1975, the separation authority waived further rehabilitative requirements and directed the applicant be separated with an honorable discharge.

20.  On 13 February 1975, the applicant was honorably discharged under the provisions of chapter 13, Army Regulation 635-200 after completing 3 years,
3 months and 16 days of active duty service.

21.  The applicant provided a handwritten document entitled "MMPI Feedback", allegedly from his VA psychologist, dated 10 June 1992.  This document appears to be a list of topics discussed in counseling.

22.  Army Regulation 635-40 establishes the Army physical disability evaluation system 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 office, grade, rank, or rating.  It provides for medical evaluation boards, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501 (Standards of Physical Fitness), chapter 3.
If the Medical Evaluation Board (MEBD) determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a Physical Evaluation Board (PEB).

23.  Paragraph 3-2b(2) further provides that when a member is being separated by reason other than physical disability, his or her continued performance of assigned duty commensurate with his or her rank or grade until he or she is scheduled for separation or retirement creates a presumption that he or she is fit. This presumption can be overcome only by clear and convincing evidence that he or she was unable to perform his or her duties for a period of time or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.



24.  Congress established the VA Schedule for Rating Disabilities (VASRD) as the standard under which percentage rating decisions are to be made for disabled military personnel.  Percentage ratings in the VASRD represent the average loss in earning capacity resulting from diseases and injuries.  The 
ratings also represent the residual effects of these health impairments on civilian occupations.  Part 4, paragraph 4.1 of the VASRD states that the rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such disease and injuries and their residual conditions in civil occupations.

25.  Title 38, United States Code, sections 1110 and 1131, permit the DVA to award compensation for disabilities which were incurred in or aggravated by active military service.  The DVA, which has neither the authority, nor the responsibility for determining physical fitness for the 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.

26.  Unlike the Army, 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 rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while the DVA 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 DVA disability pension.  By law, a veteran can normally be compensated only once for a disability.  If a veteran is receiving a DVA 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 DVA pension and military retirement.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should have been medically retired due to PTSD and depression as a result of events which took place while he was in the Army.

2.  The Board carefully reviewed the applicant's contentions; however, there is no medical evidence in the official record to show he was diagnosed with PTSD or depression, or was ever treated for a mental condition while in the Army.  There 
was no reference to a mental condition during the applicant's discharge process, and when he underwent his separation mental status examination, the examiner indicated that the applicant was normal and met Army retention standards.  

3.  There is no evidence the applicant’s military service was interrupted by a physical disability.  There is no evidence of record to indicate that he suffered from any medical condition of such severity that he was rendered unable to reasonably perform the duties of his office, rank, grade or rating.  In fact, his performance was exemplary as reflected in his annual evaluations, rate of promotion, and assignments of increasing responsibility.  The applicant also has not provided any evidence that he was diagnosed with PTSD or depression by the DVA in 1992.  He only provided a hand-written document which he alleges is from his DVA psychologist.  Even if true, PTSD diagnosed 18 years after his separation from the Regular Army, is not evidence of a mental condition while he was in the Army.  Further, even if the DVA, in its discretion, has awarded service connection (or provided medical treatment) for the applicant’s PTSD, is a prerogative exercised within the policies of that agency.  It does not, in itself, establish physical unfitness for Army purposes.

4.  The evidence of record shows that the applicant requested discharge when he became disenchanted over his denial of off-post quarters.  On more than one occasion the applicant voluntarily requested immediate discharge, indicating that he could no longer serve with his attitude towards the Army and even indicated that he would accept any type of discharge his command felt he warranted.  At no time during the discharge process did the applicant indicate that he was requesting a discharge for his mental state as a result of previously alleged events which occurred in Germany and the Republic of Vietnam.  Indeed, the applicant clearly stated that his request was based on the Army's outdated regulations and ridiculous traditions.

5.  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 did not submit any evidence that would satisfy this requirement.  Therefore, there is no justification for granting the applicant's request.

6.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 13 February 1975; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
12 February 1978.  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

__jea___  __jlp___  __eem___  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.



							James E. Anderholm
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20060009895
SUFFIX

RECON

DATE BOARDED
20070206
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
108.0000
2.

3.

4.

5.

6.