IN THE CASE OF:	  

		BOARD DATE:	      16 JUNE 2009

		DOCKET NUMBER:  AR20090001556


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 his 25 August 1992 discharge be changed to a physical disability retirement.

2.  The applicant states he had disabilities in 1992 as a result of the Persian Gulf War, but they were not taken seriously by the U.S. Government (Army or Department of Veterans Affairs (DVA)).  He now has multiple sclerosis (MS) and not being medically retired is preventing him from receiving the benefits to which he is entitled.  Military and civilian doctors agree his medical condition warranted retirement back in 1992.

3.  The applicant provides:

	a.  a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 25 August 1992, showing he was released from active duty by reason of dependency under the provisions of paragraph 6-3a, Army Regulation 635-200 (Personnel Separations);

	b.  a copy of a 30 July 2008 certification as a person with a severe disability;

	c.  a copy of a 9 March 2005 letter from a medical doctor stating "to the best of [her] knowledge [applicant] was suffering from bipolar disorder and post-traumatic stress disorder (PTSD)";

	d.  a letter from a DVA medical doctor, dated 29 May 2008, stating the applicant’s "continued vision problems, headaches, skin lesions, mental health issues, and decline in physical abilities have been caused by his previously undiagnosed multiple sclerosis";

	e.  a 27 November 2008 letter from a neurologist stating the applicant has MS and "in [doctor’s] medical opinion, [applicant’s] symptoms reported as far back as February of 1993…was more likely than not a result from previously undiagnosed multiple sclerosis";

	f.  an 8 November 1999 letter from a medical doctor stating the applicant suffers from bipolar disorder and PTSD and his PTSD is a result of his Desert Storm service;

	g.  a DVA rating decision effective on 30 May 2008 awarding 30-percent disability for MS due to undiagnosed Gulf War illness;

	h.  a self-authored letter from the applicant, dated 22 April 2009;

	i.  a duplicate copy of the letter listed in paragraph 3e above; 

	j.  a 27 May 2008 letter from a neurologist stating the applicant’s MS probably manifested in 1998 and was undiagnosed until February 2008;

	k.  a 29 May 2008 DVA letter stating the applicant is being treated for MS as an outpatient;

	l.  a 29 May 2008 DVA letter stating the applicant is being treated for depression as an outpatient;

	m.  a 12 March 2009 DVA rating decision effective retroactive to 30 May 2008 and awarding 70-percent disability for MS with a monthly entitlement of $1,700.00;

	n.  electronic mail, dated Wednesday, 22 April 2009; and 

	o.  an internet article, "'Gulf War Syndrome' is real, report finds."

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 served in the Regular Army from 13 November 1986 through 25 August 1992 as a multichannel communications systems operator in military occupational specialty (MOS) 31M.

3.  The applicant had overseas service in Korea from 2 November 1988 to 3 November 1989, in Southwest Asia from 5 January 1991 to 25 May 1991, and in Korea from 7 October 1991 to 16 October 1992.  During his first tour in Korea, he married a Korean national on 9 June 1989, from which marriage a dependent child (son) was born on 21 July 1990.

4.  During his second tour of duty in Korea, his wife abandoned him and their son.  He sent his son to Oklahoma to be cared for by his parents; however, the stress of an infant child in the home caused his parents to develop medical problems.  The applicant filed for divorce from his Korean-born wife and filed a request for a compassionate reassignment from Korea to either Fort Sill, OK, or Fort Hood, TX.  His request for reassignment was disapproved and he requested discharge under paragraph 6-3a, Army Regulation 635-200, for dependency.  That request was approved and he was transferred to Fort Sill on 20 August 1992.

5.  The applicant underwent separation processing at Fort Sill.  During processing, he was offered a separation medical examination.  On 25 August 1992, he declined a separation medical examination in writing.  On the same date, he was honorably released from active duty under the provisions of paragraph 6-3a, Army Regulation 635-200, by reason of dependency.  He had 5 years, 9 months, and 13 days of creditable active Federal service and no lost time.

6.  On 28 May 1993, the District Court of Oklahoma County, OK, granted the applicant a divorce from his Korean-born wife.  On 16 June 1993, the applicant married a woman in Wichita Falls, TX.

7.  On 21 March 1994, the applicant enlisted in the Oklahoma Army National Guard (OKARNG).  In conjunction with his enlistment, he completed a Standard Form 93 (Report of Medical History) in which he represented his health as "good" with no mental health issues or depression, vision problems, headaches, skin disease, neuritis, paralysis, etc.  On 21 March 1994, he underwent a physical examination which was recorded on a Standard Form 88 (Report of Medical Examination).  The examination found him qualified for enlistment in the OKARNG.  He enlisted the same date.

8.  After less than 1 year, the applicant left the OKARNG on 14 February 1995 in order to enlist in a U.S. Army Reserve (USAR) troop program unit.  He enlisted in the USAR on 15 February 1995.

9.  As a USAR Soldier, the applicant failed to attend unit assemblies and became an unsatisfactory participant.  On 28 March 1996, he was released from his troop program unit of assignment.

10.  The applicant submitted medical documentation showing that he was diagnosed with bipolar disorder and PTSD in November 1999.  Other documentation shows he was diagnosed with MS in February 2008 and has been rated at 90-percent disabled by the DVA.

11.  Chapter 61, Title 10, U.S. Code, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability.  The U.S. Army Physical Disability Agency, under the operational control of the Commander, U.S. Army Human Resources Command, Alexandria, VA, is responsible for operating the Physical Disability Evaluation System (PDES) and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61, Title 10, U.S. Code, and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).  The objectives of the PDES are to:

	a.  maintain an effective and fit military organization with maximum use of available manpower;

	b.  provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability; and

	c.  provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected.

12.  A Soldier is referred into the PDES in one of four ways when he or she no longer meets medical retention standards in accordance with Army Regulation 
40-501 (Standards of Medical Fitness), chapter 3:

	a.  when referred by a medical evaluation board;
	b.  when he or she receives a permanent medical profile and is referred by an MOS/Medical Retention Board; 

	c.  when he or she is command-referred for a fitness for duty medical examination; or 

	d.  when he or she is referred by the Commander, U.S. Army Human Resources Command.

13.  The PDES provides the mere presence of a medical impairment does not in and of itself justify a finding of unfitness.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may be reasonably expected to perform because of office, grade, rank or rating.  Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty.  Because it is a performance-based system, the PDES relies heavily on the performance data provided by the Soldier's immediate chain of command.

14.  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 of 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.

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 higher DVA rating does not establish error or injustice in the Army rating.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The DVA does not have authority or responsibility for determining physical fitness for military service; it awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  As a result, these two Government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment.  Unlike the Army, the DVA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.



DISCUSSION AND CONCLUSIONS:

1.  The applicant wants his dependency discharge changed to a retirement discharge based on permanent physical disability.

2.  Given the medical documentation provided by the applicant, there is no argument concerning his permanent physical disability in 2008.  However, in 1992, the record shows the applicant was performing his duty in an acceptable manner and his only reason for separating was because he could not, as a single parent, adequately care for his young son.

3.  When he separated in August 1992, the applicant voluntarily elected not to undergo a separation physical examination.  Even if he had a physical condition at that time, it would not have been discovered because of his decision not to undergo a medical examination.

4.  On 21 March 1994, the applicant enlisted in the OKARNG.  In so doing, he underwent an entrance physical examination which required him to dictate a report of medical history.  He stated he was in good health and that he was not experiencing any medical or mental problems.  His assessment was confirmed by a medical doctor who conducted the entrance physical examination.

5.  The applicant, during his active service, was never referred to the PDES for disability processing.  Absent such a referral, it would have been impossible for him to be retired by reason of permanent physical disability.

6.  The Board sympathizes with the applicant over the unfortunate turn in his physical health; however, his current condition does not warrant changing his 1992 discharge.  It is noted that the DVA has established a service-connection for his MS and thus has accepted that condition for treatment and disability payment.

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)                                         AR20090001556



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ABCMR Record of Proceedings (cont)                                         AR20090001556



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