RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  26 June 2007
	DOCKET NUMBER:  AR20060012971 


	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.


Ms. Catherine C. Mitrano

Director

Ms. Antoinette Farley

Analyst

The following members, a quorum, were present:


Mr. James E. Anderholm

Chairperson

Mr. Jerome L. Pionk

Member

Ms. Jeanette B. McPherson

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 his discharge be changed to a medical discharge due to schizophrenia disorder.  

2.  The applicant states, in essence, that he was not properly evaluated by the medical board system and was unjustly discharged with an incurable debilitating mental disease.  

3.  The applicant provides copies of Department of Veterans Affairs (DVA), service connected compensation letter, a copy of his Social Security Statement, a copy his DD Form 214 (Report of Separation from Active Duty), three pages of Standard Form 600 (Chronological Record of Medical Care), a copy of a Privacy Act Release Statement to a Congressman, and a undated three-page letter to his Congressman in support of this case.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 4 December 1974, the date of his release from Active duty.  The application submitted in this case is dated 27 August 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 21 December 1971.  He completed basic and advanced individual training and was awarded the primary military occupational specialty (MOS) of 71B (Clerk Typist) on 26 May 1972, and a secondary (MOS) of 71L (Administrative Specialist) on 6 December 1973. 





4.  A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 30 June 1972, shows that the applicant was admitted to Tripler Army Medical Center, Hawaii.  The form shows that the applicant was treated for bilateral subcondylar fractures of mandible incurred while under the influence of alcohol and drugs.  This form further shows that the applicant indicated that he left Fort Shafter NCO Club around 1930 hrs on 23 June 1972 and woke up in the home of an unknown person where an ambulance picked him up.  The record also shows that the applicant had no recollection of the accident and that the injuries were determined to have been incurred in the line of duty.

5.  A DA Form 3082 (Statement of Medical Condition), dated 4 December 1974, shows that the applicant underwent a separation medical examination three working days prior to separation.  The applicant acknowledged that there had been no changes in his medical condition. 

6.  On 4 December 1974, the applicant was separated under the provisions of chapter 2 of Army Regulation 635-200 (Personnel Separations), due to completion of required service (ETS).  The DD Form 214 he was issued at the time confirms he held the rank of specialist/pay grade E-4, and completed a total of 2 years, 11 months, and 14 days of active military service.  The DD Form 214 also shows that based on the authority and reason for his separation, he was assigned a separation program designator (SPD) code of LBK [completion of required service (ETS), Army Regulation 635-200, chapter 2] and a reentry code of RE-3. 

7.  The applicant provided a copy of a Standard Form 600, dated 26 June 1974, which shows that he was admitted to a medical facility, diagnosed, and treated for Schizophrenia, undifferentiated type, chronic, moderate, improved which was incurred in the line of duty on 9 June 1974.  The Health Record shows that he was discharged from the medical facility and returned to duty with a temporary 
S-3 profile for 90 day on 26 June 1974.

8.  The applicant provided a copy of the DVA compensation, dated 26 May 2004, which shows he was awarded service connected compensation for schizonaffective disorder (100 percent), and (0 percent) for scar, chin).  The applicant was given a combined evaluation of 100 percent as of 1 June 2004.

9.  The applicant provided a copy of his Social Security Disability Benefits, dated 20 August 2004, and a DVA entitlement worksheet which shows the monthly payments that the applicant is entitled.

10.  The applicant provided a three-page self-authored statement which essentially states that he has been awarded 100 percent VA Service Connected Disability 31 years after the fact for Schizophrenia.  The applicant argues that his military medical records show that he was diagnosed with Schizophrenia by the Army in 1974 but the Army never told him.  The applicant continues that the DVA informed him that he should have been medically discharged so that he could receive medical benefits and long term care.

11.  Army Regulation 635-40 governs the evaluation for physical fitness of soldiers who may be unfit to perform their military duties because of physical disability.  It states that the mere presence of an 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 his or her office, grade, or rank.  

12.  It states that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  When a soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the soldier is scheduled for separation or retirement, creates a presumption that a soldier is fit. Application of the rule does not mandate a finding of fit.  The presumption is rebuttable and is overcome when the preponderance of evidence establishes the soldier was physically unable to perform adequately the duties of his or her office, grade or rank.

13.  Title 38, U. S. Code, sections 310 and 331, permits the 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.  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.  Consequently, due to the two concepts involved, an individual’s medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.



DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded to a medical discharge based on receiving a DVA disability rating of 100 percent service connected claim on 26 May 2004.  

2.  Evidence of record shows that the applicant's was treated for schizoaffective disorder from 9 June 1974 to 26 June 1974.  The applicant's record shows he was discharged from a patient status and returned to duty with a temporary S-3 profile for 90 days.

3.  There is no record and the applicant has not provided documentation to show that he was unfit to be separated.

4.  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.

5.  An awarded 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.  

6.  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.

7.  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.

8.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 4 December 1974; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 3 December 1977.  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___  _JBM___  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
AR20060012971
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.