IN THE CASE OF:
BOARD DATE: 19 MARCH 2009
DOCKET NUMBER: AR20080017330
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 military records be corrected to show that he was discharged or retired from the Army due to disability.
2. The applicant essentially states that his military records should show that he was medically discharged due to medical conditions such as organic brain syndrome and schizophrenia.
3. The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge); a letter, dated 3 October 2008, from the Army Review Boards Agency Support Division in St. Louis, Missouri; 15 pages of correspondence from the Department of Veterans Affairs (DVA); and an unauthenticated DD Form 1172 (Application for Uniformed Services Identification Card Defense Enrollment Eligibility Reporting System [DEERS] Enrollment), dated 12 September 1997 in support of this application.
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 applicants 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 applicants 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 military records show that he was inducted into the Army of the United States on 18 September 1969. He completed basic and advanced individual training and was awarded military occupational specialty 57H (Cargo Handler). He was then reassigned to Fort Sill, Oklahoma. On 21 July 1970, he was honorably discharged for the purpose of enlisting in the Regular Army for a period of 4 years on 22 July 1970 with an enlistment option for an overseas assignment. He departed for a tour in Korea on 21 September 1970.
3. On 26 August 1971, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for being disrespectful in language and deportment towards a superior noncommissioned officer (NCO). His punishment consisted of a reduction in rank and pay grade from specialist four/E-4 to private first class/ E-3, which was suspended for 30 days, forfeiture of pay, extra duty, and restriction. He returned to the continental United States on 18 October 1971 and was transferred to Fort Eustis, Virginia, for assignment to a transportation company.
4. On 13 January 1972, the applicant accepted NJP under Article 15 of the UCMJ for being drunk and disorderly and for disobeying a lawful order from a superior NCO. His punishment consisted of a reduction in rank and pay grade from specialist four/E-4 to private first class/E-3, which was suspended for
30 days, forfeiture of pay, extra duty, and restriction.
5. On 12 July 1972, the applicant accepted NJP under Article 15 of the UCMJ for being disrespectful in language towards a superior NCO. His punishment consisted of a reduction in rank and pay grade from specialist four/E-4 to private first class/E-3, forfeiture of pay, and extra duty.
6. On 22 August 1972, the applicant accepted NJP under Article 15 of the UCMJ for disobeying a lawful order from a superior NCO and for being disrespectful in language towards a superior NCO. His punishment consisted of a reduction in rank and pay grade from private first class/E-3 to private/E-2, extra duty, and restriction.
7. On 29 August 1972, the applicants commander notified him that he was initiating action to discharge him under the provisions of Army Regulation
635-212 (Discharge - Unfitness or Unsuitability) for unsuitability. He cited as the basis for his recommendation the applicants disciplinary record, his failure to respond to numerous counseling sessions conducted by the first sergeant, training officer, and commander, and his unsatisfactory conduct and performance of duty.
8. On 17 August 1972, a psychiatric evaluation was conducted on the applicant and he was diagnosed with borderline intelligence. It was also determined that he met the retention standards as prescribed by Army Regulation 40-501 (Standards of Medical Fitness) and that he had no disqualifying mental or physical defects sufficient to warrant disposition through medical channels under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). The applicant was also found to be responsible to both distinguish right from wrong and adhere to the right, had the mental capacity to understand and participate in board proceedings, and was cleared for any administrative decision deemed appropriate by his command. A previous psychiatric examination on 19 May 1970 also determined that he met the retention standards as prescribed by Army Regulation 40-501 and that he had no disqualifying mental or physical defects sufficient to warrant disposition through medical channels.
9. A physical examination was conducted on the applicant on 24 August 1972 and it was determined that he was qualified for separation. It also shows that the applicant had a physical profile of "111111," which indicates that he had no significant physical or psychiatric limitations.
10. On 31 August 1972, after consulting with counsel, the applicant waived all of his rights. However, he elected to submit a statement in his own behalf wherein he asserted that he believed that he would be a better Soldier if he were stationed closer to his home in California and requested that he be allowed to serve out the remainder of his service.
11. On 15 September 1972, the proper separation authority approved the applicant's discharge for unsuitability under the provisions of Army Regulation 635-212, and directed that he be furnished an Honorable Discharge Certificate. On 22 September 1972, the applicant was discharged accordingly.
12. The applicant provided 15 pages of correspondence from the DVA which essentially show that he was rated 100 percent disabled, primarily for residuals of a head injury with organic brain syndrome, effective 8 July 1991. It also shows that the DVA granted service connection for the applicant's residuals of a head injury with organic brain syndrome which existed prior to his military service because they determined that his condition was permanently worsened as a result of his service. Additionally, it shows that service connection for the applicant's organic brain syndrome was established based upon a medical opinion that it was as likely as not that the applicant's organic brain syndrome was aggravated in service. Further, it shows that the applicant initially suffered a severe head injury at age 4 in which he incurred brain damage and had many problems growing up related to this. The DVA initially did not grant service connection for residuals of a head injury with brain damage because the evidence of record indicated a head injury with brain damage had occurred prior to the applicant's entry onto active duty, and that although there was some evidence of subsequent head injuries incurred in service, the evidence did not indicate that the applicant's brain damage had been permanently aggravated in service.
13. Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability. The regulation provided, in pertinent part, that members were subject to separation for unsuitability for inaptitude, character and behavior disorders, apathy (lack of appropriate interest), defective attitudes, and inability to expend effort constructively, alcoholism, and enuresis. An individual separated by reason of unsuitability would be furnished an honorable or general discharge certificate as warranted by their military record.
14. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides, in pertinent part, 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. Under the laws governing the Army Physical Disability Evaluation system, Soldiers who sustain or aggravate physically unfitting disabilities must meet several line of duty criteria to be eligible to receive retirement and severance pay benefits. The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training. The disability must not have resulted from the Soldiers intentional misconduct or willful neglect. The disability must not have been incurred during a period of unauthorized absence.
15. Title 38, U.S. Code, sections 1110 and 1131, permit the DVA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a DVA rating does not establish error or injustice in whether or not an Army rating is given, or in an Army rating that is given. 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 DVA, 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 affect the individuals civilian employability. Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at different positions. Furthermore, unlike the Army, the DVA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agencys examinations and findings. 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 DVA may rate any service connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.
16. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that his military records should be corrected to show that he was discharged or retired from the Army due to disability.
2. It is clear that the applicant has suffered nearly his whole life with physical disabilities which stem from a severe head injury that he sustained when he was 4 years old. While this is truly unfortunate, it appears that the DVA, after initially not granting service connection for the applicant's organic brain syndrome, made a subsequent and presumptive determination that the applicant's organic brain syndrome was aggravated by his military service. While the DVA, in its own discretion, has the authority to implement a presumptive decision-making process for veterans, the regulation governing the ABCMR states that it will begin its consideration of each case with the presumption of administrative regularity.
3. The evidence of record clearly shows that competent medical authority determined that the applicant met the retention standards as prescribed by Army Regulation 40-501, and that he had no disqualifying mental or physical defects sufficient to warrant disposition through medical channels (emphasis added) on 19 May 1970. This same determination was also reached on 17 August 1972 in conjunction with his discharge proceedings under the provisions of Army Regulation 635-212 for unsuitability. His physical examination on 24 August
1972 also shows that he was qualified for separation, and that he did not have any significant physical or psychiatric limitations. As a result, there is no evidence which conclusively proves, by a preponderance of the evidence, that he should have been processed for separation under the provisions of Army Regulation 635-40 due to disability.
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 submit evidence that would satisfy this requirement. In view of the foregoing, there is no basis for granting relief to the applicant in this case.
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) AR20080017330
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ABCMR Record of Proceedings (cont) AR20080017330
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