IN THE CASE OF:	  

		BOARD DATE:	        11 December 2008

		DOCKET NUMBER:  AR20080014491 


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 honorable discharge be changed to a medical discharge. 

2.  The applicant states, in effect, that his was retained in the service for the convenience of the Government pending a special court-martial for an altercation with military policemen, that he was denied a physical due to his injuries, and that he was honorably discharged.  He points out that he did not know he was suffering from Post Traumatic Stress Disorder (PTSD) until 2002 when he was rated 100 percent by the Department of Veterans Affairs (DVA). 

3.  The applicant provides two photographs of a man with a head wound; service medical records; service personnel records; a letter, dated 11 July 2002, from his PTSD psychiatrist; a letter, dated 11 March 2002, from a DVA social worker; and letters, dated 6 December 2002 and 13 December 2002, from the DVA.  

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 the Regular Army on 30 April 1980 for a period of 3 years.  He successfully completed basic combat and advanced individual training and he was awarded military occupational specialty 11B (infantryman).

3.  The applicant provided a service medical record, dated 2 April 1983, which states that he was involved in an altercation with military policemen and he sustained a basilar skull fracture with laceration.

4.  On 3 June 1983, the applicant signed a Statement of Option which states, "I understand that I am not required to undergo a medical examination for separation (or retirement) from active duty.  If I elect not to undergo a separation examination, I also understand that my medical records will be reviewed by a physician at the appropriate medical treatment facility; and if the review indicates that an examination should be accomplished, I will be scheduled for examination based on the results of the review.  I do not desire a separation medical examination."  On 3 June 1983, his medical records were reviewed by competent medical authorities and it was determined that a medical examination for separation was not required.  

5.  On 7 June 1983, the applicant was honorably released from active duty under the provisions of Army Regulation 635-200, chapter 4, for expiration term of service and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining obligation.  He had served 3 years,
1 month, and 8 days of creditable active service.  On 28 April 1986, he was honorably discharged from the USAR.  He reenlisted in the USAR on 29 April 1986.  A physical examination for airborne school, dated 1 April 1988, shows his physical profile was 111111.  On 5 November 1994, the applicant was honorably discharged from the USAR.  

6.  In support of his claim, the applicant provided DVA documentation which states that he has been receiving treatment for PTSD since February 2002, that he will need extensive outpatient treatment, and that he is severely disabled from PTSD.  A DVA Rating Decision, dated 6 December 2002, states that his service-connected compensation for PTSD with cognitive impairment was increased from 50 percent to 70 percent.  



7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 4 of that regulation provides, in pertinent part, for the discharge or release from active duty upon termination of enlistment, and other periods of active duty or active duty for training.  

8.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

9.  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.  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 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 indicates that a Soldier is fit.  

10.  Chapter 7 (Physical Profiling) of Army Regulation 40-501 (Standards of Medical Fitness) provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted.  Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES):
P-physical capacity or stamina, U-upper extremities, L-lower extremities,
H-hearing and ears, E-eyes, and S-psychiatric.  Numerical designator "1" under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.  

11.  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 DVA, 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 DVA benefits based on an evaluation by that agency.

DISCUSSION AND CONCLUSIONS:

1.  Medical evidence of record shows the applicant was treated for a head injury on 2 April 1983.  Evidence of record shows he declined a separation medical examination on 3 June 1983 and his medical records were reviewed by competent medical authorities and it was determined a medical examination for separation was not required.  

2.  Although the DVA granted service-connection for PTSD 19 years after the applicant’s discharge from active duty, there is no evidence to show he was having psychiatric problems in 1983 that interfered with his ability to perform his military duties.  

3.  There is no evidence of record to show the applicant was ever medically (emphasis added) unfit to perform his duties.  In addition, evidence of record shows he subsequently successfully served in the USAR for 11 years and was honorably discharged from the USAR in November 1994.  

4.  The rating action by the DVA does not demonstrate an error or injustice on the part of the Army.  The DVA, operating under its own policies and regulations, assigns disability ratings as it sees fit.  Consequently, due to the two concepts involved, an individual’s medical condition may not be considered to be a physical disability by the Army and yet be rated by the DVA as a disability.  Therefore, there is no basis for granting a medical discharge. 

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.



      _________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)                                         AR20080014491



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ABCMR Record of Proceedings (cont)                                         AR20080014491



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