IN THE CASE OF:	  

		BOARD DATE:	        11 SEPTEMBER 2008

		DOCKET NUMBER:  AR20080010497 


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, in effect, that his records be corrected to show that he was discharged by reason of physical disability.

2.  The applicant states that he was discharged due to medical reasons that were determined to have existed prior to service; however, he was granted a 100 percent service-connected disability rating by the Department of Veterans Affairs (VA), due to a nerve condition that was incurred in the military and did not exist prior to service. 

3.  The applicant provides in support of his application, a letter from the Department of the Army Review Boards Agency, Acting Chief, Support Division, St. Louis, MO, dated 2 June 2008, informing him that he may appeal the type of discharge that he received by applying to this Board; a copy of his Report of Transfer or Discharge (DD Form 214); and a copy of a Correction to DD Form 214 (DD Form 215).

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.  On 13 June1972, the applicant underwent a medical examination for the purpose of enlistment and he was found to be qualified for enlistment in the Army.

3.  On 6 July 1972, the applicant enlisted in the Regular Army in San Juan, Puerto Rico, for 2 years, in the pay grade of E-1.

4.  The applicant’s Clinical Record - Narrative Summary (SF 502) shows that on 25 October 1972, the applicant was seen by a medical physician after he began throwing trays and stating that he wanted to kill another Soldier whom he claimed shot him in the leg when he was in Vietnam 2 years earlier.  The attending physician noted that the applicant admitted to seeing a psychiatrist at some point in his history.  This document also shows that upon a mental status examination, the applicant appeared to be a nervous, fidgety, frightened male in moderate distress; that he answered questions in short, and at times, unproductive sentences; that he stared at the floor; that he had no hallucinations or delusions; and that he ruminated about killing his sergeant.  The attending physician determined that the applicant was medically unfit for enlistment or induction into the military service because of a schizophrenic reaction; therefore, he was being presented to a Medical Board for evaluation and disposition under the provisions of Army Regulation 635-200, chapter 5-9, for failure to meet medical fitness standards.

5.  On 7 November 1972, the applicant submitted a request for discharge under the provisions of Army Regulation 635-200, chapter 5-9 and Army Regulation 
40-501, chapter 2-33.  In his request, he stated that he was requesting to be discharged for physical reasons which existed prior to his enlistment in the Army, and that he had a personality disorder, which was known to him and that it was explained that his personality disorder existed prior to his enlistment in the Army. In his request for discharge, he indicated that he did not desire to be present for the Medical Board hearing in his case.

6.  A Medical Board convened on 7 November 1972 to evaluate the applicant and the board diagnosed the applicant with schizophrenic reason, undifferentiated type, chronic, severe, manifested by pan-anxiety, looseness of thought, and flat affect.  His stress was minimal; his predisposition was severe; 
and his impairment was moderate.  The Medical Board noted that the applicant 
was mentally competent to handle his own financial affairs and to take part in board proceedings.  The Medical Board also noted that the applicant was not considered dangerous to himself or others and could be discharged in his own care.  The Medical Board determined that his condition existed prior to service.  

7.  On 8 November 1972, the applicant underwent a medical examination and he was found to be not qualified for enlistment or induction under the provision of Army Regulation 40-501, chapter 2-32.

8.  The appropriate authority approved the request for discharge on 13 November 1972.  Accordingly, on 21 November 1972, the applicant was honorably discharged, under the provisions of Army Regulation 635-200, chapter 5-9, for failure to meet medical fitness standards.  He had completed 4 months and 16 days of total active service.

9.  Army Regulation 635-200, chapter 5-9, then in effect, provided for the discharge of personnel who did not meet the medical fitness standards for enlistment or induction.  It provided, in pertinent part, that commanders specified in section VI, chapter 2, were authorized to order discharge of individuals who were not medically qualified under procurement medical fitness standards when accepted for induction or initial enlistment.  Eligibility for discharge was governed by a medical board finding that the individual had a medical condition which would have permanently disqualified him for entry in the military service had it been detected at that time, and did not disqualify him from retention in the military service under the provisions of chapter 3, AR 40-501. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant has submitted neither probative evidence nor a convincing argument in support of the request.

2.  The reason and authority for his discharge are appropriate considering all the facts of the case.

3.  The applicant’s contentions have been noted.  However, 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 VA may rate any service-connected impairment, including those that are detected after discharge, 
in order to compensate the individual for loss of civilian employability.  The applicant’s records show that he did not have any medically unfitting disability which required physical disability processing.  Therefore, there is no basis for physical disability retirement or separation.

4.  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.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20080010497



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ABCMR Record of Proceedings (cont)                                         AR20080010497



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