IN THE CASE OF:
BOARD DATE: 21 August 2008
DOCKET NUMBER: AR20080007811
THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:
1. Application for correction of military records (with supporting documents provided, if any).
2. Military Personnel Records and advisory opinions (if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests his discharge by reason of expiration of term of service (ETS) be changed to a medical discharge.
2. The applicant states:
a. While stationed in Germany, he was evaluated for fatigue and anxiety. However, he claims he did not receive the proper treatment.
b. The Department of Veterans Affairs (DVA) has awarded him disability for service-connected shoulder and back problems and, in 2004-2005, he was awarded 100% disability for mental illness.
c. His service medical records show he exhibited schizoid features in 1981, but he received no treatment.
d. He was barred from reenlistment in 1983.
3. The applicant provides:
a. An undated, self-authored statement, "Correction of Military Record Title 10."
b. A copy of SF 513 (Clinical Record Consultation Sheet), dated 28 January 1981. This document refers the applicant from dermatology to psychiatry because of extreme fatigue from "not sleeping or use of drugs." It also provides that the applicant described a short period of anxiety at the end of basic training. Examination found no evidence of psychosis, but describes some symptoms of anxiety. The psychiatric impression was "mild anxiety...no concrete evidence of drug abuse lethargy...confusion may well have been [due] to atarax and lack of sleep." The psychiatrist recommended obtaining an MMPI (Minnesota Multiphasic Personality Inventory) which may demonstrate some schizoid features.
c. A copy of an Inpatient Treatment Record Cover Sheet, dated 30 January 1981, showing the applicant reacted adversely to atarax. It also shows diagnoses of pityriasis rosea and drowsiness due to atarax.
d. DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period 12 February 1980 through 11 February 1983 for relief from active duty by reason of ETS.
e. A Statement of Medical Examination and Duty Status, dated 10 July 1985, and addressed to the Office of The Adjutant General, State of Alabama.
f. A copy of a form "Emergency Care and Treatment," dated 11 July 1985, showing the applicant fell while on field maneuvers and injured his left shoulder and left elbow.
g. A copy of NGB 22 (Report of Separation and Record of Service) showing the applicant served in the Alabama Army National Guard (ALARNG) from 23 February 1983 through 28 September 1987.
CONSIDERATION OF EVIDENCE:
1. 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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicants failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant served in the Regular Army from 12 February 1980 through 11 February 1983, a period of 3 years. His ETS physical examination, performed on 1 February 1983, shows a normal psychiatric evaluation in Item 42 of Clinical Evaluation. The examination found him physically and mentally qualified for separation. He was honorably separated as a Specialist Four (SP4/E-4) tactical Wire Operations Specialist. On 22 February 1992, he completed his Reserve obligation and was honorably discharged.
3. The applicant was found qualified for enlistment and enlisted in the ALARNG on 23 February 1983. He served honorably and well until he was discharged on 28 September 1987. During that period of service, he successfully completed the Ammunition Specialist primary technician Course from 5 November 1984 through 3 March 1985.
4. Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System according to the provisions of Title 10, United States Code (USC) , Chapter 61, (10 USC 61) and Department of Defense Directive (DODD) 1332.18. It 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. If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations. It specifically provides:
a. 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.
b. That when a Soldier is being separated by reason other than physical disability, his/her continued performance of assigned duty commensurate with his/her rank or grade until scheduled for separation or retirement creates a presumption that he/she is fit. This presumption can be overcome only by clear and convincing evidence that the Soldier was unable to perform his/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 Soldier unfit.
DISCUSSION AND CONCLUSIONS:
1. The applicant requests he be given a medical discharge. He provides evidence dating from January 1981 which shows he was referred for a psychiatric consultation due to anxiety and sleeplessness.
2. The applicant served from 1980 to 1983; he served 2 years beyond the date of his psychiatric consultation. During that entire period, he never failed to perform his duty. His military service was not interrupted by physical disability. Notwithstanding the presence, or possible presence, of various medical conditions, there is no evidence of record, nor has the applicant provided sufficient evidence, which would 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.
3. The applicant's service medical records do not indicate any medical condition incurred while entitled to receive basic pay which was so severe as to render the applicant medically unfit for retention on active duty. Competent medical authority determined that the applicant was medically fit for separation. Accordingly, he was separated from active duty for reasons other than physical disability.
4. Additionally, the applicant, following his separation from the Regular Army, enlisted in, and successfully served in the ALARNG for more than 4 1/2 years. This fact strengthens the presumption of fitness described in AR 635-40.
5. The fact that the DVA, in its discretion, has awarded the applicant a disability rating is a prerogative exercised within the policies of that agency. An award of a DVA rating does not establish entitlement to medical retirement or separation from the Army. Operating under different law and its own policies and regulations, the DVA, which has neither the authority nor the responsibility for determining medical unfitness for military service, awards ratings because a medical condition is related to service (service-connected) and affects the individuals civilian employability. Furthermore, the DVA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agencys examinations and findings.
6. 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.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
___X____ ___X____ ____X___ 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 for correction of the records of the individual concerned.
_________X____________
CHAIRPERSON
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont) AR20080007811
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