IN THE CASE OF:	  

		BOARD DATE:	  16 March 2010

		DOCKET NUMBER:  AR20090013033 


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 military records to show that he was retired due to physical disability.

2.  The applicant states that the Department of Veterans Affairs (VA) rated him at 50-percent disabled.  He contends that the Army erroneously and unethically rated him at only 10-percent disabled and separated him with severance pay.

3.  In support of his application, the applicant provides a copy of a 
VA Form 21-6796 (Rating Decision), dated 19 May 1988.

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.  On 12 June 1979, the applicant enlisted in the Regular Army.  He completed his initial training.  The Army awarded him military occupational specialty 91A (Medical Specialist).
 
3.  The applicant served as a patient care specialist in the Federal Republic of Germany from 18 July 1981 to 17 August 1985.  He returned to the United States for duty at Fort Lewis, Washington.

4.  On 27 May 1987, the applicant departed Fort Lewis for duty in the Republic of Korea.  The Army subsequently assigned him to Madigan Army Medical Center, Fort Lewis, Washington, as a patient.

5.  A DA Form 3947 (Medical Evaluation Board (MEBD) Proceedings), dated 3 March 1988, indicates a diagnosis of a moderate acute manic bipolar disorder, moderate acute alcohol abuse, and moderate psychosocial stressor.  The onset of these conditions occurred in June 1987.  The applicant was referred to a physical evaluation board (PEB).  The applicant concurred with the MEBD findings and recommendation, but he also indicated that he wanted to remain on active duty.

6.  A DA Form 199 (PEB Proceedings), dated 8 March 1988, indicates the PEB considered the applicant's conditions and found him to be unfit for military service.  The PEB recommended placement on the temporary disability retired list (TDRL) with a rating of 50 percent due to bipolar disorder.

7.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that he was retired effective 26 April 1988 due to a temporary physical disability.  He had attained the rank of specialist four, pay grade E-4, and had completed 8 years, 10 months, and 15 days of creditable active duty service.

8.  A VA Form 21-6796 provided by the applicant, dated 19 May 1988, indicates the VA rated the applicant's bipolar disorder at 50 percent and that the applicant's disability was the result of his own willful misconduct due to alcohol abuse.

9.  A DA Form 199, dated 13 October 1989, indicates that the PEB again considered the applicant's bipolar disorder.  The PEB determined that his condition had not improved and recommended that the applicant remain on the TDRL with a reexamination during April 1991.

10.  A DA Form 199, dated 3 June 1991, indicates the PEB determined that the applicant's bipolar disorder was in remission without psychotherapeutic medication.  There was evidence of good job stability, no police intervention, and only mild impairment of social and industrial adaptability.  The PEB found the applicant physically unfit for military service with a disability rating of 10 percent.  The PEB recommended the applicant's separation with severance pay.  The applicant concurred with the PEB findings and recommendation and waived a formal hearing of his case.

11.  Orders D122-15, U.S. Army Total Army Personnel Command, Alexandria, Virginia, dated 26 June 1991, removed the applicant from the TDRL effective that same day with a physical disability rating of 10 percent.   He was authorized severance pay.

12.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has an impairment rated at less than 30-percent disabling.  It further provides in section 1201 for the physical disability retirement of a member who has an impairment rated at least 30-percent disabling.

13.  Title 38, U.S. Code, sections 310 and 331, permit 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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his separation is erroneous and unethical because the Army rated his disability at only 10 percent while the VA rated this same condition at 50 percent.  He wants his disability retirement restored.

2.  The available evidence clearly shows that the applicant was medically disabled and evaluated by a PEB.  He initially received a 50-percent disability rating and was placed on the TDRL.  Upon subsequent reexamination, the PEB determined that his medical condition had improved, but that he was still unfit for duty.  Therefore, he was rated at 10-percent disabled and discharged with severance pay.

3.  The applicant provided a VA Form 21-6796, dated 19 May 1988, that indicates the VA agreed with the initial PEB and rated him at 50-percent disabled.  However, the applicant has not provided any VA rating decisions subsequent to the PEB determination that the applicant's condition had improved.  In any case, the 3 June 1991 PEB determined the applicant's bipolar 


disorder was in remission without psychotherapeutic medication and there was evidence of good job stability, no police intervention, and only mild impairment of social and industrial adaptability.  It does not appear that he met the criteria for a higher rating at that time.

4.  An award of a VA rating does not establish entitlement to medical retirement or separation from the Army.  Operating under its own policies and regulations, the VA, which has neither the authority nor the responsibility for determining medical unfitness for military duty, awards ratings because a medical condition is related to service (service connected) and affects the individual's civilian employability and/or social functioning.  Furthermore, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.

5.  An award of a higher VA rating does not establish error or injustice in the Army rating.  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 VA, 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 individual's social or industrial adaptability.  Accordingly, it is not unusual for the two agencies of the government, operating under different policies, to arrive at a different disability rating based on the same impairment.

6.  In view of the above, the applicant's request should be denied.

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 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)                                         AR20090013033



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ABCMR Record of Proceedings (cont)                                         AR20090013033



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