IN THE CASE OF:	  

		BOARD DATE:	    23 March 2010

		DOCKET NUMBER:  AR20090016866 


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 narrative reason for separation be changed to a medical discharge.  

2.  The applicant states he has medical records which established his service connection for a psychiatric disorder since 1966.  He thinks he is entitled to a retirement from the Army with a medical discharge.  The applicant alleges he suffered a nervous breakdown in Vietnam in 1966.  He described his mental condition after he was discharged.  He went to the Department of Veterans Affairs (VA) for help and he has been undergoing psychiatric treatment since June 1966.  

3.  The applicant provides the following documents in support of his application:  letter from a physician translated in Spanish; decisional document from the Department of the Veterans Appeals; medical reports from the San Juan Dermatopathology, dated 8 December 2008; letter from VA; DA Form 1811 (Physical and Mental Status on Release from Active Service), dated 23 June 1966; Honorable Discharge Certificate, dated 5 July 1970; discharge orders from the U.S. Army Reserve (USAR) Control Group (Standby), dated 24 June 1970; his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge); letter from VA, dated 25 July 2996 with VA Rating Decision; and letter from VA, dated 26 May 1976.




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 was inducted into the Army of the United States on 6 July 1964.  He served in Vietnam from August 1965 to June 1966.  The highest rank/grade that he attained during his tenure of service was specialist four (SP4)/E-4.

3.  The applicant was honorably released from active duty on 23 June 1966.  On the following day, he was transferred to the USAR Control Group (Annual Training).  He completed 1 year, 11 months, and 18 days of creditable active service.

4.  His DD Form 214 shows he was separated under the provisions of Army Regulation 635-205, paragraph 7 due to the early separation of overseas returnees.  He was assigned separation program number (SPN) 411.  

5.  The applicant underwent a separation physical on 23 June 1966 and was found qualified for separation with a physical profile of 111111.

6.  In February 1975, the VA granted the applicant service connection for a nervous condition with a 30 percent disability rating.  

7.  On 12 April 1976, the VA granted the applicant service connection for a psychiatric disorder.

8.  In a 17 November 1977 letter, the VA certified that the applicant was treated at the VA Hospital in San Juan, PR in 1976 in an out-patient treatment status for a nervous condition and he was unable to work at that time.  



9.  The applicant’s Radiographic Report, dated 7 September 1978, shows an evaluation of both knee joints failed to reveal a fracture or dislocation.  A slight irregularity involving the posterior margin of the patella on the right was noted.  The report indicated there was an ovoid piece of bone on the right knee joint.  

10.  In a 25 July 1996 letter, the VA informed the applicant that he was permanently and totally disabled and his spouse and children were eligible for Dependents Educational Assistance.  

11.  On 8 December 2008, the applicant was evaluated at San Juan Dermatopathology and he was diagnosed as having basal cell carcinoma.

12.  The applicant was evaluated again on 8 July 2009 at San Juan Dermatopathology and he was diagnosed as having A-spindle cell neoplasm.

13.  Army Regulation 635-205, in effect at the time, set forth the basic authority for the separation of enlisted personnel for convenience of the government.  Paragraph 7(a) pertains to overseas returnees.  It states, in pertinent part, that commanders are authorized to order separation for the convenience of the government of enlisted personnel for return to the U.S.  Enlisted members of the Regular Army and USAR, who upon arrival have less than 3 months remaining before expiration of term of service will be discharged for the convenience of the government, released from active duty, and returned to their former National Guard or Army Reserve status, or released from active duty and transferred to the USAR.

14.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  

15.  Title 38, U.S. Code, sections 1110 and 1131, 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.
DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he suffered a nervous breakdown while in Vietnam in 1966.   However, there is no evidence available which substantiates his claim.  

2.  The documents from the VA confirm the applicant was granted service connection for a nervous condition and a psychiatric disorder.  However, there is no evidence available which verifies he was diagnosed with a mental condition prior to his discharge in June 1966.  

3.  The February 1975 and April 1976 decisions from the VA indicate the applicant was granted service connection for a nervous condition and a psychiatric disorder.  However, the rating action by the VA does not necessarily demonstrate an error or injustice on the part of the Army.  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.  

4.  Evidence shows that prior to the applicant's separation in June 1966 competent medical authority determined he was medically qualified for separation.  There is no evidence which indicates his military career was ended due to medical unfitness.

5.  The applicant has not presented sufficient evidence and there is no evidence of record to show that the discharge he was initially issued or the discharge he presently holds warrants a change to a medical discharge.  Therefore, there is no basis for granting the applicant's 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.



      _________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)                                         AR20090016866



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ABCMR Record of Proceedings (cont)                                         AR20090016866



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