IN THE CASE OF:	  

		BOARD DATE:	  26 February 2009

		DOCKET NUMBER:  AR20080014753 


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 6 January 1994 discharge for (disability, existed prior to service (EPTS)) be voided and that his record be corrected to show he was instead retired by reason of permanent disability on that same date. 

2.  The applicant states, in effect, that his Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB) findings were unduly influenced by a colonel from the Inspector General's (IG) office who did not agree with the initial medical findings in his case.  He claims the IG colonel provided false information and documents to these boards and as a result, the Army's Physical Disability Evaluation System (PDES) review of his case was unjust and resulted in a denial of benefits which he is entitled.  

3.  The applicant provides the following documents in support of his application:  DD Form 214 (Certificate of Release or Discharge from Active Duty)); National Personnel Records Center (NPRC) Letter, dated 12 January 2006; Request for Information; Information Paper for Enclosed Documents, dated 20 May 2008; DA Form 3947 (MEB Proceedings), dated 10 June 1991; AF Form 618 (Medical Board Report); DA Forms 199 (PEB Proceedings), dated 8 July 1991 and           5 February 1992; Standard Form 513 (Consultation Sheet); Standard Form 600 (Chronological Record of Medical Care) and AFLC Form 6434 (Consultation Report).


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's records show that after having served in the Florida Army National Guard (FLARNG) between 23 May 1981 and 1 October 1983, he enlisted in the United States Army Reserve (USAR) for 6 years on 21 June 1990.

3.  On 6 August 1990, the applicant was ordered to active duty in the Active Guard Reserve (AGR) program for a period of 3 years, effective 23 November 1990 with a report date to his temporary duty station of on or about                    14 September 1990. 

4.  On 10 June 1991, a MEB convened at Moncrief Army Community Hospital, Fort Jackson, South Carolina to consider the applicant's case.  The MEB determined the applicant's diagnosed condition of bipolar disorder was unfitting and was incurred while he was entitled to base pay.  The MEB further found the applicant's diagnosed conditions of polysubstance abuse, dependent passive aggressive and antisocial personality traits were unfitting, but these conditions were determined to have existed prior to service.  The applicant concurred with the MEB findings on 27 June 1991, and his case was referred to a PEB for evaluation.

5.  On 8 July 1991, the applicant’s case was considered by a PEB that convened at Fort Gordon, Georgia.  The PEB found that the applicant's bipolar disorder was unfitting and that this condition existed prior to service.  The PEB also determined the applicant's polysubstance abuse, dependent passive aggressive and antisocial personality traits were not unfitting and as a result were not ratable.  The PEB finally recommended that the applicant be separated without disability benefits based on his unfitting EPTS condition.  The applicant non-concurred with the PEB findings and demanded a formal hearing. 


6.  On 5 February 1992, the applicant's case was evaluated by a formal PEB that convened in Washington, D.C.  The applicant was present and presented evidence that his mental condition had been resolved and he could perform his military duties.  Based on his testimony and the testimony by his supervisor, the PEB determined he was fit for duty. 

7.  On 1 September 1993, a MEB convened at Wright-Patterson Air Force Base, Ohio, and again evaluated the applicant's case based on the return of his bipolar disorder condition.  The MEB determined the applicant's bipolar disorder existed prior to service.  Additionally, the applicant was diagnosed with a mild left ventricular dysfunction induced by maximum exercise, and his case was referred to a PEB for evaluation.  The applicant non-concurred with the MEB findings.

8.  On 29 October 1993, a PEB convened at Fort Sam Houston, Texas, to evaluate the applicant's case.  The PEB found that the applicant was physically unfit for further service based on his bipolar disorder, which was a condition that existed prior to service, and recommended that the applicant be separated from service without disability benefits based on an EPTS condition. 

9.  On 5 November 1993, the applicant non-concurred with the PEB findings and demanded a formal PEB hearing.  

10.  On 19 November 1993, a formal PEB convened at Fort Sam Houston, Texas, and affirmed the informal PEB's findings.  The United States Army Physical Disability Agency (USAPDA) reviewed the applicant's case, the PEB findings and recommendations, and after careful consideration of all the medical evidence, denied the applicant's PEB appeal and adhered to the original findings and recommendations of the formal PEB hearing.

11.  On 6 January 1994, the applicant was honorably discharged under the provisions of paragraph 4-24b (4), Army Regulation 635-40, by reason of disability, EPTS.  The DD Form 214 he was issued shows he completed a total of 3 years, 6 months, and 26 days of active military service during the period.  

12.  On 2 January 2008, in connection with the processing of this case, an advisory opinion was obtained from the USAPDA Legal Advisor.  This official states that during each state of the PEB processing in 1991 and 1993, the PEB found that, if unfit, the applicant's bipolar disorder was not incurred while entitled to basic pay and was not permanently aggravated by military service.  The official also states that the applicant simply states that the PEB/PDA decisions were incorrect and unfair.  However, the applicant provided no new evidence to refute these findings some 15 years later. 

13.  The USAPDA Legal Advisor further states that the “PEB's findings are owed due deference, and lacking any direct evidence of error, must be considered to have been properly accomplished based on a preponderance of evidence before the PEB's.”  The recommendation is no change to the applicant's military records.

14.  On 5 January 2009, the applicant was mailed a copy of the USAPDA advisory opinion at the address listed on his application in order for him to have the opportunity to rebut its contents.  However, this copy was returned due to an undeliverable address (attempted-unknown) on 16 January 2009.  

15.  Army Regulation 635-40 establishes the Army PDES 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 or her office, grade, rank, or rating.  Chapter 4, Section IV, of the PDES regulation contains guidance on physical disability evaluation and identifies common criteria for PEB decisions.  It states, in pertinent part, that the PEB must decide whether the disability was incurred or aggravated while the Soldier was entitled to basic pay and that Soldiers who are unfit by reason of physical disability neither incurred nor aggravated during any period of service while entitled to basic pay, or as the proximate result of performing active duty or inactive duty training, but which effects duty performance, will be separated for physical disability without entitlement to benefits. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his separation due to an EPTS condition was unjust and was the result of undue influence by an IG colonel was carefully considered.  However, there is no evidence of record or independent evidence provided by the applicant that confirms any undue influence was exerted or contributed to the decisions involving the MEB, PEB or PDES process.  

2.  The evidence of record shows the applicant's PDES processing was accomplished in accordance with the applicable law and regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout his disability processing.  

3.  The record shows the applicant was afforded appropriate appellate reviews by a formal PEB and the USAPDA which both determined the original EPTS finding of the PEB was appropriate and supported by the medical evidence.  As a result, absent any compelling new medical evidence to the contrary, there is an insufficient evidentiary basis to support a change to the findings and recommendations of the PEB and/or to grant the requested relief.   
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 has failed to 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)                                         AR20080014753



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080014753



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1