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ARMY | BCMR | CY2009 | 20090001241
Original file (20090001241.txt) Auto-classification: Denied

		DOCKET NUMBER:  AR20090001241 


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 that his discharge under the provisions of Army Regulation 635-212 be changed to medical retirement under the provisions of Army Regulation 635-40 and he be authorized back pay for medical retirement.

2.  The applicant states that his military record contains errors. 

3.  The applicant's arguments are provided by counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant's honorable discharge be changed to medical retirement with a disability rating of 50 percent.

2.  Counsel states, in effect, that the applicant should have been medically retired by the US Army based on a permanent medical disability.  The applicant's medical condition prompted the applicant's discharge which required in-service medical care, immediate post-discharge medical treatment and compensation by the Department of Veterans Affairs (VA).  The applicant continues to require medical care to the present day.  The applicant's counsel requests that this Board excuse failure to file within 3 years after discovery.  This waiver request is based on the fact that the applicant was exposed to intense combat and suffered a lifelong psychiatric disability.  The lifelong debilitating disability reasonably prevented him from previously seeking a correction of his military record.  Therefore, it is in the interest of justice for the Army Board for Correction of Military Records (ABCMR) to waive the statute of limitation.  The applicant's entire period of active duty service was exemplary.  Counsel states the following: 

	a.  First of all, at the time the applicant was discharged in March 1970, under the provisions of Army Regulation 635-212, the provisions related to "unfitness" are not applicable to the applicant's case and therefore should not be addressed. With respect to "unsuitability," the foregoing regulation provided for administrative discharges in the following cases: character and behavior disorders; apathy; defective attitudes and inability to expend effort constructively; alcoholism; enuresis; and homosexuality.  Only the sub-section pertaining to discharges for "character and behavior disorders" applies to the applicant's case. 

	b.  Second, paragraph 6.b(2) of Army Regulation 635-212 provided an exception pertaining to character and behavior disorder for "combat exhaustion and other acute situation maladjustments."  The regulation provided that discharges "normally should not be accomplished for combat exhaustion and other acute situational maladjustments."  Unfortunately, this regulatory safeguard failed in the applicant's case.  

	c.  Third, the applicant's Army physicians indicated that the medical condition prompting the applicant's discharge "existed prior to service (EPTS)."  Examples of EPTS conditions are those 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 of their existence prior to military service.  In reaching an EPTS conclusion, the Army was required to apply accepted medical principle.  The Army defined accepted medical principles as: "Fundamental deduction consistent with medical facts and based upon the observation of a large number of cases."  This Army standard is significant as documented in the applicant's medical record; however, the standard was not satisfied in the applicant's case.  

	d.  Fourth, in accordance with Army Regulation 635-40, when a service member becomes unfit for further military service because of disability incurred in the line of duty, the Army is required to convene a Medical Evaluation Board (MEB) to examine that disability.  Following the MEB process, the Army is required to convene a physical evaluation board (PEB), in order to render the final determination regarding whether such member is fit or unfit  for military service, and if found unfit, whether such disability warrants a medical separation with severance pay or medical retirement.  The provisions of Title 10, U. S. Code, section 1201 mandated that a member found unfit because of disability incurred in the line of duty receive a medical discharge with severance pay when such disability warranted a rating of less than 30 percent under the standard schedule of rating disabilities in use by the VA.  The foregoing statutory provisions have not changed substantively since the applicant's discharge in March 1970.  

3.  Counsel summarized the applicant's military career and adds that the applicant applied for service-connected disability benefits from the VA, Muskogee, Oklahoma Regional Office, for a "nervous condition resulting from combat" among other conditions.  

4.  The applicant was diagnosed with an "anxiety reaction, chronic".  In May 1971, the VA granted the applicant entitlement to service connection for his anxiety reaction, he was assigned a 30 percent disability rating, and assigned the effective date as April 1970, post discharge from the US Army.  Thereafter, the VA assigned a 2-month temporary 100 percent disability rating for this condition. Since February 2004, the applicant's Post Traumatic Stress Disorder (PTSD), noted by VA as formerly referred to as anxiety reaction, was rated as 70 percent disabling.  

5.  Counsel adds that despite the Army's failure to afford the applicant an MEB and a PEB, the Army's determination that he was unfit for service is not in dispute.  Therefore, the only question remaining is whether the Army should have medically discharged the applicant with severance pay or retirement pay.  The medical evidence in this case clearly supports that a medical retirement was the correct option.  

6.  In the Interest of justice, the applicant warrants a "Fully Honorable" discharge based on medical retirement.  The evidence compels this.  No bases exist in which the Army could determine the applicant's service as "unsuitable" and deserving of a discharge "under honorable conditions."  The applicant led men in the harshest of conditions on the field of battle.  The applicant was wounded multiple times and still maintained the highest degree of motivation.  The Army could not have asked more of a Soldier.  

7.  The VA schedule of rating disabilities mandated that the applicant receive a 50 percent disability rating.  The VA's standard schedule qualifies the applicant for medical retirement.  Therefore, the applicant requests that the Board correct his military record to reflect a medical retirement with a disability rating of 50 percent.   

8.  Counsel concludes that it was an error for the US Army to administratively discharge the applicant for "Unsuitability" reasons.  The evidence in this case clearly documents the applicant suffering from combat–related anxiety reaction while stationed in Vietnam, which precipitated the Army's proceedings to discharge him.  Given his in-service diagnosis of "combat fatigue" and "severe psychiatric condition," the applicant should have been discharged for his medical disability and provided with a permanent disability retirement.  The evidence and arguments presented herein fully support the ABCMR making this determination and correcting the applicant's military records accordingly.  Counsel requests that he be furnished copies of the following:  All advisory opinions oral or written and from internal and external sources, specifically to include any opinions rendered by staff professional personnel; staff briefs or memoranda and military or civilian investigative reports.  This request is made pursuant to the Privacy Act and the Freedom of Information Act.         

9.  The applicant provides in support of his application:  A 15-page document from his attorney; his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge); a 4-page Report of Medical Examination dated 9 March 1967; a letter of appreciation dated 24 July 1967; a 4-page copy of his DA Form 20 (Enlisted Qualification Record); Special Orders from Headquarters, 4th Infantry Division dated 14 November 1967; a copy of General Orders Number 305, Headquarters, 93rd Evacuation Hospital dated 18 November 1969; a          2-page copy of a DA Form 8-275-3 (Clinical Record Cover Sheet) dated            24 November 1969; a copy of his DA Form 2496-1 (Physical Profile Record, Disposition Form (DA Form 2496-1) dated 2 January 1970; Medical Record from Internal Medicine dated 16 Mach 1970; a statement from a Captain M--C dated 25 March 1970; a Report of Psychiatric Evaluation dated 26 March 1970; a letter, subject, Board Hearing Waiver dated 29 March 1970; a VA Form 21-2507 dated 19 August 1970; a 3-page Report for VA Examination dated 28 April 1971; a       2- page VA Rating Decision dated 18 May 1971; and a VA Rating Decision dated 15 September 2005.

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 record shows that he was inducted into the Army of the United States on 10 March 1967.  He was trained in and awarded military occupational specialty 11B (Light Weapons Infantryman).  

3.  On 28 August 1967, the applicant was assigned to a unit in Vietnam.  On 
12 January 1968, the applicant was honorably discharged after serving 
10 months and 3 days of active service.  On 13 January 1968, while still assigned to a unit in Vietnam the applicant immediately reenlisted for a period of 4 years.  

4.  The applicant's DA Form 20 shows that in July 1968 the applicant was wounded on the left forearm.  On 27 August 1968, the applicant returned to the United States after completing his 12-month tour in Vietnam.  He was reassigned to a unit at Fort Bragg, North Carolina.  

5.  The applicant was reassigned to Vietnam on 26 June 1969.  The applicant's DA Form 20 shows that he was wounded on 5 September 1969, ("Excess" laceration to the body).  He received shrapnel to the left wrist and back on 
6 September 1969.  He received a gunshot wound to the right leg on 
11 November 1969, and he received fragments to upper back and left buttocks on 16 November 1969.  The DA Form 20 shows that he fought in the Vietnam Counteroffensive Phase III, Tet Counteroffensive, Vietnam Counteroffensive Phase IV, and the Vietnam Counteroffensive Phase V.  The DA Form 20 also shows that he was awarded the National Defense Service Medal, the Vietnam Service Medal, the Combat Infantryman Badge, the Vietnam Campaign Medal, the Purple Heart First Oak Leaf Cluster, the Good Conduct Medal, the Marksmanship Qualification Badge with (M-16) Rifle Bar, the Marksmanship Qualification Badge with (M-14) Rifle Bar, the Sharpshooter Marksmanship Qualification Badge with (M-60) Rifle Bar, and 3 Overseas Service Bars.

6.  On 25 March 1970, while in Vietnam, the applicant was evaluated by a psychiatrist.  The evaluation revealed that the applicant was having difficulty with adjustment to Army life since November 1969.  Because of this he was considered for separation under the provisions of Army Regulation 635-212.  Pertinent history revealed that the applicant had been wounded five times in his 22 months of combat and was profiled for combat fatigue.  He had been unable to return to the field since; he had been seen on numerous occasions for sleeplessness and a loss of appetite; and he had been unable to function.  The psychiatrist stated, "He had operated very well under the circumstances of his personality."  The psychiatrist opined that the applicant had over-achieved.  The Mental Status Examination revealed a fully oriented, alert, cooperative, anxious male with neutral mood and appropriate affect.  There was no evidence of a thought disorder; psychosis or neurosis.  No drugs or alcohol were present.  Diagnosis: (3210): Emotional instability, chronic, moderate, manifested by a long history of multiple acute situational maladjustments; severe stress prolonged exposure to combat; moderate predisposition: long history of difficulty adjusting to stress; no impairment.  LD: No, not due to own misconduct. EPTS.   

7.  The psychiatrist found that the applicant met the retention standards prescribed in chapter 3, Army Regulation 40-501, and there was no psychiatric disease or defect which warranted disposition through medical channels.  The applicant was found mentally responsible, able to distinguish right from wrong and to adhere to the right, and had the mental capacity to understand and participate in board proceedings.  This condition and the problems presented by this individual were not, in the opinion of the psychiatrist, amenable to hospitalization, treatment, transfer, disciplinary action, training or reclassification to another type of duty within the military.  It is unlikely that efforts to rehabilitate or develop this individual into a satisfactory member of the military will be successful.  It was recommended that the applicant be separated from the military under the provisions of Army Regulation 635-212.        

8.  On 25 March 1970, Captain G----e H---, Medical Corps (MC), submitted a statement to the legal office in Vietnam regarding the applicant who was a former patient he had treated for mild psychiatric manifestations at the aid station in Vietnam.  He later saw the applicant again and observed that the applicant's condition had deteriorated.  He observed that the applicant was drinking a fifth of whiskey daily, and was overtly hostile, and was making threats.  He recommended that the applicant be discharged under the provisions of Army Regulation 635-212, because of his severe psychiatric disorder.  Also a Captain M-----l H----s, MC after his observation of the applicant and after speaking with a psychiatrist who examined the applicant strongly recommended that the applicant receive a 635-212 discharge because of the applicant's instability resulting from prolonged combat and his basic personality.

9.  On 27 March 1970, the applicant was advised by the unit commander that he was being recommended for discharge under the provisions of Army Regulation 635-212, by reason of unsuitability.  The stated reason for the recommendation was the applicant's emotional instability, chronic, multiple acute situational maladjustments; severe stress prolonged exposure to combat; all despite high degree of motivation.  The unit commander further stated that the applicant was in combat for 22 1/2 months.  During that time he served as a member of a Killer Reconnaissance team for the 4th Infantry Division, as a Tank Commander, and as a Sniper for the 11th Armored Cavalry Regiment.  Despite the severe amount of physical punishment, the applicant still maintained a high degree of motivation, but he developed an excessive nervous condition.  The Regimental physician recommended that the applicant be honorably discharged under the provisions of Army Regulation 635-212.  The applicant's conduct and efficiency ratings at the time were "excellent."  The applicant had no record of misconduct or any record of nonjudicial punishment.  

10.  On 29 March 1970, the applicant consulted with legal counsel and after being advised of the basis for the contemplated separation, its effects and the rights available to him, he waived his right to consideration of his case by a board of officers, personal appearance before a board of officers, and further right to counsel.  The applicant did not submit a statement in his own behalf.

11.  On 31 March 1970, the separation authority directed the applicant’s separation under the provisions of Army Regulation 635-212 for unsuitability and directed that the applicant be issued an Honorable Discharge Certificate.  On 
2 April 1970, the applicant was discharged accordingly.  The DD Form 214 issued to him at the time confirms the applicant completed a total of 2 years,        2 months, and 20 days of creditable active military service.  He was awarded the National Defense Service Medal, the Vietnam Service Medal, the Vietnam Campaign Medal, the Purple Heart with one oak leaf cluster, the Combat Infantryman Badge, and the Good Conduct Medal. 

12.  Subsequent to his separation the applicant was granted a service connected disability rating of 30 percent from the VA for anxiety reaction effective 3 April 1970.  Thereafter, the VA assigned a 2-month temporary 100 percent disability rating for this condition.  On 1 April 1971, the applicant again was assigned a disability rating of 30 percent for anxiety reaction.  Since 27 February 2004, the applicant was granted a disability rating of 70 percent for PTSD.  This is noted by the VA as being formerly referred to as anxiety reaction.  

13.  Army Regulation 635-212, then in effect, set forth the policy and procedures for administrative separation of enlisted personnel for unfitness and unsuitability.  It provided, in pertinent part, for discharge due to unsuitability because of apathy of those individuals who displayed a lack of appropriate interest and/or an inability to expend effort constructively or for character and behavior disorder.  When separation for unsuitability was warranted an honorable or general discharge was issued as determined by the separation authority based upon the individual's entire record.

14.  Army Regulation 40-501, paragraph 3-3b(1), 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.  Army Regulation 40-501, at paragraph 3-3a, provided, in pertinent part, that performance of duty despite impairment would be considered presumptive evidence of physical fitness. 

15.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (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.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  Separation by reason of disability requires processing through the PDES.

16.  Paragraph 4-10 (The Medical Evaluation Board) of Army Regulation 635-40 provides that medical evaluation boards 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 qualification for retention based on the criteria in Army Regulation 40-501 (Standards of Medical Fitness), Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement).  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

17.  Chapter 3 of Army Regulation 635-40 contains guidance on standards of unfitness because of physical disability.  It states, in pertinent part, that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.

18.  Title 38, U. S. 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.  Furthermore, unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings. 

19.  PTSD, an anxiety disorder, was not recognized as a psychiatric disorder until 1980 with the publishing of the Diagnostic and Statistical Manual of Mental Disorders (DSM) III.  While PTSD has only been categorized by psychiatrists as a distinct diagnosis since 1980, it has, as early as the Civil War, been described in psychological literature, variously labeled as shell shock, soldier’s heart, effect syndrome, combat fatigue and traumatic neurosis.  During the period of time in question, similar psychiatric symptomatology was categorized as hysterical neurosis.  Although the current label of PTSD is of rather recent acceptance, the idea that catastrophes and tragedies can result in persistent emotional and psychological symptoms is common even among the lay public.  While PTSD was not recognized as a specific illness at the time of the applicant’s separation from the service, the fact that an individual might not be fit for further military service because of psychosis, psychoneurosis, or neurological disorders was outlined in Army Regulation 40-501 which was in effect at the time of his separation.  The Army has established standards and procedures for determining fitness for retention and utilized those procedures and standards in evaluating individuals at that time.  The specific diagnostic label given to an individual’s condition a decade or more after his discharge from the service may change, but any change does not call into question the application of then existing fitness standards.

DISCUSSION AND CONCLUSIONS:

1.  The contentions that the applicant's record should be corrected to show he was medically retired with a disability rating of 50 percent and that he receive back pay for medical retirement were carefully considered.  However, there is insufficient evidence to support this claim.  

2.  It is clear that the applicant served honorably and valiantly in Vietnam, and that he experienced multiple situations involving intense exposure to combat.  However, competent medical authority determined at the time that he met the retention standards and that there was no psychiatric disease or defect which warranted disposition through medical channels.  The applicant was found mentally responsible, able to distinguish right from wrong and to adhere to the right, and had the mental capacity to understand and participate in board proceedings.  Although the applicant has now been diagnosed with PTSD, this specific diagnostic label given to the applicant more than three decades after his separation does not call into question the application of the existing fitness standards that were applied at the time of his discharge.  The fact that the VA may have subsequently awarded him compensation for PTSD does not establish an error or injustice in the disability rating rendered by the Army.  

3.  By regulation, the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of their office, grade, rank, or rating.  The regulation stipulates that when a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement, creates a presumption that the Soldier is fit.  

4.  The evidence of record shows that the VA granted the applicant service- connection for PTSD (70 percent), effective 27 February 2004.  However, the Army rates only conditions determined to be physically unfitting that were incurred or aggravated during the period of service.  Furthermore, it can rate a condition only to the extent that the condition limits the performance of duty.  The VA, on the other hand, must provide compensation for disabilities which it determines were incurred in or aggravated by active military service and which impair the individual's industrial or social functioning, including those that are detected after discharge.  Moreover, the law requires the VA must give the veteran the benefit of any reasonable doubt.  The fact that the VA, in its discretion, granted the applicant a service-connected disability rating is a prerogative exercised within the policies of that agency.  The VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  However, these changes do not call into question the application of the fitness standards applied by military medical authorities at the time of his discharge.  As a result, the VA is the appropriate agency to provide him medical treatment and disability compensation for service-connected medical conditions that were not found permanently disabling at the time of his discharge.

5.  There is also no evidence in the applicant's record that shows that competent medical authorities seriously considered EPTS as the cause of the applicant's psychiatric disorder, although EPTS was written in the Report of Psychiatric Evaluation dated 26 March 1970.  However, it was not discussed any further.

6.  There is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial creditable evidence to rebut the presumption.  Since there is insufficient evidence of record to show that the applicant's medical condition was medically unfitting for retention at the time in accordance with Army Regulation 40-501, there was no basis for medical separation or retirement.  Therefore, there is insufficient evidence to support the applicant’s claim and the applicant is not entitled to correction of his records to show he was discharged or retired based upon physical disability.

7.  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.  Regrettably, 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.




      _______ _   _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)                                         AR20090001241



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ABCMR Record of Proceedings (cont)                                         AR20090001241



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