IN THE CASE OF:	  

		BOARD DATE:	        29 January 2009

		DOCKET NUMBER:  AR20080017889 


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 he was medically retired instead of honorably discharged for physical disability.

2.  The applicant states that he feels that he was told he was being medically retired; but, he was discharged for physical disability.  He adds that he was not available to sign his discharge paperwork and that had he been present, he would not have signed the discharge papers.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 23 August 1985; a copy of his Standard Form 88 (Report of Medical Examination), dated 31 May 2005; a copy of a DA Form 3947 (Medical Evaluation Board (MEB)), dated 19 June 1985; and a copy of a DA Form 199 (Physical Evaluation Board Proceedings), dated 27 June 1985, in support of his request.

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 complete military records are not available for review.  However, the applicant's submitted documents that were deemed sufficient in a reconstructed record to conduct a fair and impartial review of his case.

3.  The applicant’s reconstructed records show he enlisted in the Regular Army on 10 August 1983.  He completed basic combat and advanced individual training and was awarded military occupational specialty 11B (Infantryman).  He was subsequently assigned to the 2nd Battalion, 9th Infantry, Fort Ord, California.

4.  On 20 May 1985, the applicant was hospitalized at the psychiatry unit, Hays Army Community Hospital at Fort Ord, and was subsequently transferred to Letterman Army Medical Center, California, on 27 March 1985 with an initial diagnosis of depression, dysthymic disorder, and personality disorder.

5.  On 27 May 1985, the applicant underwent a medical examination where it was determined that he suffered from dysthymic disorder, organic amnestic syndrome, and a mixed personality disorder.  The attending physician further recommended that the applicant undergo outpatient psychiatric care and referral to a physical evaluation board (PEB).

6.  On 11 June 1985, an MEB convened at Letterman Army Medical Center and determined that the applicant was medically unfit for duty due to mild and chronic dysthmic disorder that existed prior to service, acute and moderate organic amnestic syndrome that he incurred during his military service, passive-aggressive mixed personality disorder that existed prior to service, and acute alcohol abuse that also existed prior to service.  The MEB noted that the applicant was considered competent for pay purposes and had the capacity to understand the nature of and cooperate in the board proceedings.  However, the MEB noted that his diagnosis represented a mental disorder within the meaning of Army Regulation 40-501 (Standards of Medical Fitness) and referral to a PEB was necessary.  The applicant indicated that he did not desire to continue on active duty and agreed with the MEB’s findings and recommendations.

7.  On 27 June 1985, an informal PEB convened in San Francisco, California, and found the applicant's condition prevented him from performing his duties and determined that he was physically unfit due to non-psychotic organic brain syndrome with slight impairment of social and industrial adaptability and depressive neurosis in remission without impairment of working ability and that the conditions existed prior to military service.  The applicant was rated under the Veterans Administration (now the Department of Veterans Affairs (DVA)) Schedule for Rating Disabilities (VASRD) code 9304 (organic brain syndrome) and granted a 10 percent disability rating, and he was rated under code 9405 (depressive neurosis) and granted no rating since this condition existed prior to military service.  The PEB also recommended the applicant be separated from the service with entitlement to severance pay if otherwise qualified.

8.  The applicant’s record is void of the back page of the DA Form 199 that indicates whether he concurred or non-concurred with the PEB’s findings and recommendations.  However, the applicant’s DD Form 214 shows that he was discharged from the Army on 23 August 1985, in accordance with Title 10, U.S. Code, section 1203/1206, paragraph 4-24E, by reason of physical disability. This form further shows he completed 2 years and 13 days of creditable active military service.

9.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating at least 30 percent.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30 percent.

10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army physical disability evaluation system 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 office, grade, rank, or rating.  It provides for MEBs, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

11.  Army Regulation 635-40, in pertinent part, states that according to accepted medical principles, certain abnormalities and residual conditions exist that, when discovered, lead to the conclusion that they must have existed or have started before the individual entered the military service.  Examples are congenital malformations and hereditary conditions or similar conditions in which medical authorities are in such consistent and universal agreement as to their cause and time of origin that no additional confirmation is needed to support the conclusion that they existed prior to military service.  Likewise, manifestation of lesions or symptoms of chronic disease from date of entry on active military service (or so close to that date of entry that the disease could not have started in so short a period) will be accepted as proof that the disease existed prior to entrance into active military service.

12.  The VASRD is the standard under which percentage rating decisions are to be made for disabled military personnel.  The VASRD is primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  The VASRD gives code 9304 (organic brain syndrome) a 10 percent disability rating with mild impairment of social and industrial adaptability and a 30 percent disability rating with definite impairment of social and industrial adaptability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should have been medically retired instead of honorably discharged for medical disability.

2.  The evidence of record shows that the applicant suffered from a medical condition that rendered him unable to satisfactorily perform the duties of his grade and specialty.  Consequently, his records were evaluated by an MEB that referred him to a PEB.  The applicant concurred with the MEB's findings and recommendations and indicated that he did not desire to continue on active duty.

3.  The applicant's records were consequently evaluated by a PEB that found him medically unfit and rated his disabling condition of organic brain syndrome at     10 percent, and recommended his separation by reason of physical disability with entitlement to severance pay.  There is no evidence that this condition more than slightly impaired his ability to perform his military duties.  Although the applicant’s record is void of his concurrence statement, it is presumed that the applicant concurred with the PEB’s findings and recommendations and was ultimately discharged by reason of physical disability with entitlement to severance pay.  Even in the absence of his concurrence statement, a 10 percent disability rating would not have qualified the applicant for retirement.

4.  The VASRD is used by the DVA and the Army primarily as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  Unlike the DVA, the Army must first determine whether a Soldier is fit to reasonably perform the duties of his or her office, grade, rank, or rating.  In this case, the medical evidence of record supports the determination that the applicant's unfitting condition was properly diagnosed and that his disability was properly rated in accordance with the VASRD.  His separation for disability was in compliance with law and regulation.  The applicant's mere feeling, 24 years later, that he should have been retired instead of being discharged for disability is insufficient to grant him the requested relief.

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)                                         AR20080017889





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ABCMR Record of Proceedings (cont)                                         AR20080017889



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