IN THE CASE OF:	  

		BOARD DATE:	        29 July 2008

		DOCKET NUMBER:  AR20080008704 


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 reconsideration of his earlier request for a medical discharge.

2.  The applicant states, in effect, that the Department of Veterans Affairs (DVA) rendered a rating decision granting him a 100 percent service-connected disability compensation. 

3.  The applicant provides a self-authored letter, dated 17 May 2008; and a copy of the DVA Rating Decision, dated 26 July 2007, 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 AR 20070018270 on 25 March 2008.

2.  The applicant submitted a copy of the DVA Rating Decision, dated 26 July 2007; and a self-authored statement, dated 17 May 2008, which were not previously reviewed by the ABCMR; therefore, they are considered new evidence and as such warrants consideration by the Board.




3.  The applicant’s records show that he enlisted for a period of 3 years on 13 September 1976.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 94B (Food Service Specialist).

4.  The applicant previously submitted a copy of clinical record, dated 1 August 1979, which shows he was diagnosed with a paranoid personality manifested by confusion, agitation, and distrust of others.  The attending doctor recommended that the applicant be separated under the provisions of chapter 13 of Army Regulation 635-200 (Personnel Separations), for unsuitability.  This medical record also states that the applicant did not express any interest in continuing outpatient treatment on a regular basis and no medication was prescribed.   

5.  On 17 September 1979, the applicant was honorably released from active duty under the provisions of chapter 2 of Army Regulation 635-200, for completion of required service and transferred to the U.S. Army Reserve Control Group to complete his remaining obligation.  

6.  On 20 June 1986, the applicant enlisted in the Army National Guard, and after completing nearly one year of service, he was honorably discharged on 3 May 1987.

7.  The applicant’s service medical records are not available for review with this case.  

8.  The applicant submitted a copy of the DVA Rating Decision, dated 26 July 2007, which shows he was awarded 100 percent service connected disability for chronic paranoid schizophrenia.

9.  The applicant also submitted a self-authored statement, dated 17 May 2008, in which he states that the earlier decision to deny him a medical discharge should be overturned because the DVA awarded him a 100 percent service connected disability compensation for chronic paranoid schizophrenia.  He further adds that the DVA decision stated that his disability is directly related to military service and that since there is no evidence of a psychosis prior to service, the DVA examiner concluded that his (the applicant’s) schizophrenia began in service.  He concludes that he is forced to submit this request to have the previous decision reconsidered for a medical military retirement with honorable conditions and that if necessary, he would take his request to Washington; however, he gives the Board permission to request his entire military and medical records.


10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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 chapter 3 of Army Regulation 40-501.  If a Medical Evaluation Board (MEB) determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a Physical Evaluation Board (PEB).

11.  Paragraph 3-1 of Army Regulation 635-40 provides 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 member reasonably may be expected to perform because of his or her office, rank, grade or rating.  The Army must find that a service member is physically unfit to reasonably perform their duties and assign an appropriate disability rating before they can be medically retired or separated

12.  Paragraph 3-2b of Army Regulation 635-40 provides for retirement or separation from active service.  This provision of regulation 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.  The regulation also states that, 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 the Soldier is fit.  This provision of the regulation also 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.  

13.  Title 38, United States Code, Sections 1110 and 1131, permit the Department of Veterans Affairs (VA) to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish error or injustice in the Army rating.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career.  The DVA does not have authority or responsibility for determining physical fitness for military service.  The DVA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. As a result, these two Government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment.  Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his discharge narrative reasoning should be changed to medical retirement and his DVA Rating Decision were carefully considered.  However, there is insufficient evidence to show he should have been medically discharged or retired. 

2.  There is no evidence in the applicant’s records and the applicant did not provide substantiating evidence that shows he was ever medically unfit to perform his duties, that he was issued a permanent physical profile, or that he underwent an MEB and/or a PEB.  Furthermore, subsequent to his discharge from the Regular Army, the evidence of record shows that he successfully served in the USAR and the Army National Guard for 7 1/2 years and was honorably discharged in May 1987.

3.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier’s separation and can only be accomplished through the physical disability evaluation system.  The Department of Veterans Affairs evaluates veterans throughout their lifetime, granting or adjusting the percentage of disability based upon that Agency's examinations and findings.  Any changes in the severity of a disability should be referred to that Agency.

4.  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 did not submit evidence that would satisfy this requirement.  In view of the circumstances in this case, there is insufficient evidence to grant the requested relief.   The applicant has not shown error, injustice, or inequity for the relief he requests.  






BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  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 AR20070018270, dated 25 March 2008.



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               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)                                         AR20080008704



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ABCMR Record of Proceedings (cont)                                         AR20080008704



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