IN THE CASE OF:	  

		BOARD DATE:	       12 May 2009

		DOCKET NUMBER:  AR20080018957 


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 discharge for physical disability with severance pay be corrected to show he was retired as a result of a physical disability due to schizophrenia.  

2.  The applicant states that he was not screened for mental problems while he was on active duty and undergoing evaluation for physical disability.  While in Iraq, in 2003, he felt a high degree of stress and paranoia.  He felt constantly threatened and thought the Iraqis were watching him and plotting to kill him.  He relates a June 2005 arrest for abusive behavior towards the military police to these symptoms.  After years of psychiatric treatment he now knows that these were symptoms of mental illness. 

3.  The applicant provides, in support of his request, copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty); the June 2005 arrest and counseling records; documentation of his Physical Evaluation Board (PEB); and Department of Veterans Affairs (VA) civilian contractor mental health treatment records.

CONSIDERATION OF EVIDENCE:

1.  The applicant, a Reserve Officers' Training Corps graduate, entered active duty on 15 May 1999 as an infantry officer.  He served in Iraq from 2 May 2003 through 9 August 2003.

2.  In June 2005, an arrest incident shows the applicant was reported to have thrown his driver's license and identification card at a military police officer and he became verbally abusive, shouting obscenities.  The applicant claimed to have fumbled and dropped the documents and denied any belligerent behavior or vulgar language.  

3.  The applicant's Medical Evaluation Board (MEB) paperwork is not available.  His informal PEB paperwork shows he was recommended for separation with severance pay for chronic law back pain with no focal neurological deficits with a zero percent disability rating.  

4.  On 1 December 2005, the applicant was separated from active duty as a captain and discharged due to physical disability with severance pay for a bad back.

5.  VA medical records show the applicant received mental health treatment from 26 October 2006 onward.  On 1 January 2007, the applicant received a diagnosis of schizophrenia and it was noted the applicant was service connected for back strain rated at 10 percent.  An October 2007 summary notes the applicant was rated at 100 percent disabled due to paranoid schizophrenia.  At that time he reported not having been especially fearful for his life in Iraq but that he did feel paranoia and ostracism from members of his own unit. 

6.  Title 10, United States 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.

7.  Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.

8.  Title 10, United States Code, section 1201.  Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rated at less than 30 percent.

9.  Title 38, United States Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, 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 VA benefits based on an evaluation by that agency.

10.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The 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 he was not screened for mental problems while he was on active duty and undergoing evaluation for physical disability.  However, while in Iraq, in 2003, he felt a high degree of stress and paranoia.  He felt constantly threatened and thought the Iraqis were watching him and plotting to kill him.  After years of psychiatric treatment he now knows that these were symptoms of mental illness. 

2.  The applicant's MEB paperwork is not available, and it cannot be determined what his chief medical complaint was or what his commander's evaluation said concerning the reason he could not perform his duties.  In the absence of this documentation, it is presumed that he was appropriately determined to be medically unfit for retention only for his chronic low back pain.

3.  The rating action by the VA does not necessarily demonstrate any error or injustice in the Army rating.  The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit.  A rating action by the VA does not compel the Army to modify its rating.  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.

4.  The available evidence does not show the applicant’s duty performance was hindered due to mental illness.  In the absence of medical evidence to the contrary, it is presumed that the applicant’s disability was properly rated.  The applicant has failed to show otherwise.

5.  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.

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)                                         AR20080018957



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ABCMR Record of Proceedings (cont)                                         AR20080018957



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