IN THE CASE OF:	  

		BOARD DATE:	        23 DECEMBER 2008

		DOCKET NUMBER:  AR20080017001 


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 correction of his records to show that he was medically retired due to Post Traumatic Stress Disorder (PTSD).

2.  The applicant states, in effect, that he should have been retired due to PTSD.

3.  The applicant provides in support of his application, a copy of Orders 
D-05-033717 dated 2 May 1970; page three of his Department of Veterans Affairs (DVA) Rating Code Sheet dated 25 May 1995; a copy of his Chronological Statement of Retirement Points dated 13 January 1991; and a copy of his Report of Separation and Record of Service (NGB Form 22).

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 8 February 1967, the applicant enlisted in the Regular Army (RA) in Coral Gables, Florida for 3 years, in the pay grade of E-1.  He successfully completed his training as a light weapons infantryman.  He was transferred to Vietnam on 20 July 1967.

3.  The applicant returned to the Continental United States on 11 August 1968 and he was assigned to Company B, 1st Battalion, 325th Infantry Regiment, 82nd Airborne Division.

4.  The applicant was honorably released from active duty (REFRAD), on 7 February 1970, at the expiration of his term of service and he was transferred to the United States Army Reserve (USAR) Control Group (Reinforcement) to complete his Reserve obligation.

5.  On 22 August 1970, the applicant enlisted in the Florida Army National Guard (FLARNG) for 1 year.  He was honorably discharged from the FLARNG), on 21 August 1971, at the expiration of his term of service and he was assigned to the USAR Control Group (Ready).

6.  The applicant's records show that he was honorably discharged from the USAR Control Group (Standby), on 23 December 1971, at the expiration of his term of his service.

7.  On 28 August 1976, the applicant enlisted in the USAR for 1 year in St. Petersburg, Florida.  He remained a member of the USAR through continuous reenlistments.

8.  Orders D-05-033717 were published, on 2 May 1990, honorably discharging the applicant from the Ready Reserve with an effective date of 3 May 1990.

9.  Page three of the DVA Rating Code Sheet that the applicant submitted, dated 25 March 1995, shows he was awarded a 30 percent service connected disability rating for PTSD, “competent from 3-1-88 and 100 percent from "10-11-89."  He was also awarded non-service connected disability ratings for fungus of the feet (due to herbicide exposure), blackout spells, chloracne, itching, chest pain, headaches, defective vision, memory loss, absent-mindedness, and polysubstance abuse (due to his own willful misconduct), for a combined rating of 100 percent from 11 October 1989.





10.  Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.

11.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 2-2b, as amended, provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

12.  Title 38, U.S. Code, sections 1110 and 1131, 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.  The applicant contends that he should have been retired due to PTSD.

2.  His contentions have been noted.  However, an award of a VA rating does not establish entitlement to medical retirement or separation.  The VA is not required to find unfitness for duty.  Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected.  Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.





3.  The DVA Rating Code Sheet that the applicant submitted is dated 25 May 1995.  There is no evidence in his official military record that shows he was unable to perform the duties of his office, grade, rank or rating prior to his discharge from the USAR on 3 May 1990, or that he should have been processed for separation through medical channels in accordance with Army Regulation 40-501.

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

____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)                                         AR20080017001



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ABCMR Record of Proceedings (cont)                                         AR20080017001



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