IN THE CASE OF:	  

		BOARD DATE:	        28 AUGUST 2008

		DOCKET NUMBER:  AR20080008976 


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 that his general discharge be upgraded to a fully honorable discharge and that he be retired by reason of physical disability. 

2.  The applicant states, in effect, that he was discharged under honorable conditions after exhibiting symptoms of a mental illness that has subsequently been diagnosed by the Department of Veterans Affairs (VA) as being 100% disabling.  He goes on to state that the VA rated him beginning the day after his discharge and he believes that he should have been processed through the Physical Disability Evaluation System (PDES) and retired by reason of physical disability instead of being discharged.    

3.  The applicant provides a copy of his VA Rating Decision and a copy of his DD Form 214.

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 applicant’s 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 applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in Milwaukee, Wisconsin on 17 September 2001 for a period of 4 years, training in the infantry career management field, assignment to Hawaii and an $18,000 enlistment bonus.

3.  He completed his one-station unit training (OSUT) at Fort Benning, Georgia and was transferred to Hawaii in February 2002, for assignment to an infantry regiment at Schofield Barracks as a light weapons infantryman.  He was advanced to the pay grade of E-4 on 1 May 2003.

4.  On 6 December 2003, the applicant was arrested at his quarters by military policemen and was taken to the Military Police Station and charged with being drunk and disorderly, aggravated assault with grievous bodily harm, burglary of a family dwelling, simple assault- terroristic threatening in the 2nd degree, disrespect to a noncommissioned officer (NCO), contributing alcohol to a minor and domestic abuse.  
  
5.  On 8 December 2003, the applicant underwent a mental status evaluation and was diagnosed as having an adjustment disorder with depressed mood.  The examining official opined that his disorder was of such severity that he was not expected to adapt to the Army.  He went on to state that while the applicant met retention standards, he did not meet the criteria for evaluation by a medical evaluation or physical evaluation board.  He recommended that the applicant be administratively separated under the provisions of Army Regulation 635-200, paragraph 5-17, due to other designated physical or mental conditions.

6.  On 16 December 2003, the applicant was counseled regarding the charges against him and he was advised that an investigation was being conducted into the charges against him and that the results of the investigation would determine the course of action to be taken against him.  He was also told that he would be required to attend Alcohol and Drug Abuse Prevention and Control (ADAPC) and anger management classes.  The applicant agreed with the counseling statement without comment.     

7.  On 2 February 2004, the applicant’s commander notified him that he was initiating action to separate him from the service under the provisions of Army Regulation 635-200, paragraph 5-17 for other designated physical or medical conditions.  He cited as the basis for his recommendation, the applicant’s diagnosed adjustment disorder with depressed mood, his inability to adapt to the Army and his involvement in a domestic incident in which he behaved in a drunk and disorderly manner, committed an assault consummated by a battery against his wife and threatening his wife.  The commander advised him that he was recommending that he receive an honorable discharge.

8.  On 3 February 2004, after consulting with counsel, the applicant waived all of his rights.  

9.  The applicant’s battalion commander recommended approval of the recommendation; however, he recommended that the applicant be given a general discharge because his additional misconduct did not warrant an honorable discharge.

10.  The appropriate authority approved the recommendation for discharge and directed that the applicant’s service be characterized as under honorable conditions.

11.  Accordingly, he was discharged under honorable conditions on 16 April 2004, under the provisions of Army Regulation 635-200, paragraph 5-17, due to other designated physical or mental conditions.  He had served 2 years and 7 months of total active service.

12.  On 11 February 2005, the applicant applied to the VA for disability compensation benefits and on 20 June 2005, the VA granted him service connection for schizophreniform disorder with a 100% disability rating effective 17 April 2004, based on presumption.

13.  Army Regulation 635-200, paragraph 5-17, provides for the separation of Soldiers who have a physical or mental condition that potentially interferes with assignment to or performance of duty; however, the physical or mental condition does not amount to a disability or qualify for disability processing under the provisions of Army Regulation 635-40.

14.  Army Regulation 635-40, Physical Evaluation for Retention, Retirement, or Separation, paragraph 3-2b, provides 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.

15.  Title 38, United States Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  An award of a VA rating does not establish error or injustice in the Army 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.  The VA, 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 affects the individual's employability.

DISCUSSION AND CONCLUSIONS:

1.  The mere presence of impairment does not, of itself, justify a finding of physical unfitness and/or medical retirement from the Army.

2.  The fact that the VA has awarded the applicant a disability rating for schizophrenia does not establish physical unfitness, or the degree thereof for Department of the Army purposes.  Although there is no evidence to suggest that his condition permanently prevented him from performing his duties, each agency/department is bound to operate within its own rules, regulations, and policies.  The granting of a compensable award by one agency is not tantamount to a lesser, equal or more enhanced award by the other agency.

3.  The fact that the VA, in its discretion, has awarded him a disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish any entitlement to additional disability compensation or medical retirement from the Department of the Army.

4.  Disability ratings assigned by the VA are based upon the establishment of service-connection of the diagnoses.  This rating may fluctuate from zero to 100 percent based on the former service member's physical condition at the time of each physical examination.  Army disability ratings are not based upon the same principles as the VA and, consequently, the ratings awarded by the VA may differ from those awarded by the Army.
  
5.  Accordingly, he was properly discharged in accordance with the applicable laws and regulations with no indication of any violations of any of his rights.

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

__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 for correction of the records of the individual concerned.




      ___        XXX                ___
                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)                                         AR20080008976



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ABCMR Record of Proceedings (cont)                                         AR20080008976



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