IN THE CASE OF:	  

		BOARD DATE:	  26 August 2010

		DOCKET NUMBER:  AR20100007991 


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, his honorable discharge be changed to a medical discharge.

2.  The applicant states:

* He sustained a head injury in 1981
* He has been diagnosed with a traumatic brain injury (TBI) that happened while on active duty
* He was informed Army specialists were not trained to recognize TBIs at the time of his discharge in 1984
* He is unemployed and homeless, suffering from a service connected injury
* He has headaches, concentration, memory, and mood issues
* He cannot get along with anyone
* The Department of Veterans Affairs (DVA) awarded him 90 percent disability in August 2009
 
3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DVA documentation 




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 enlisted in the U.S. Army Reserve (USAR) on 16 January 1980 for a period of 6 years.  He enlisted in the Regular Army on 7 February 1980 for a period of 4 years.  He trained as an intelligence analyst.  On 2 February 1984, the applicant was honorably released from active duty under the provisions of Army Regulation 635-200, chapter 4, for completion of required active service.  He was transferred to the USAR Control Group (Reinforcement) to complete his remaining service obligation. 

3.  There is no evidence of record which shows the applicant was diagnosed with any mental or medical condition prior to his release from active duty on 
2 February 1984.

4.  The applicant's DA Form 2A (Personnel Qualification Record), prepared on 
25 May 1983, shows his physical profile was 111111. 

5.  On 6 February 1986, the applicant was honorably discharged from the USAR.

6.  There are no service medical records available.

7.  A DVA Rating Decision, dated 14 September 2009, shows the applicant was granted service-connection for postconcussional disorder (70 percent), migraine headaches (50 percent), and traumatic brain injury (10 percent). 

8.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his/her office, rank, grade, or rating because of disability incurred while entitled to basic pay.

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states that the mere presence of impairment does not, in and of itself, justify a finding of unfitness because of physical disability.

10.  Chapter 7 (Physical Profiling) of Army Regulation 40-501 (Standards of Medical Fitness) provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted.  Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES):
P-physical capacity or stamina, U-upper extremities, L-lower extremities,
H-hearing and ears, E-eyes, and S-psychiatric.  Numerical designator "1" under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.  

11.  Title 38, U.S. Code, sections 310 and 331, permits the DVA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The DVA, however, is not required by law to determine medical unfitness for further military service.  The DVA, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should have been discharged with a medical discharge for a TBI.  

2.  There is no evidence of record which shows the applicant was diagnosed with any mental or medical condition prior to his release from active duty on 
2 February 1984.  

3.  Evidence of record shows the applicant's physical profile was 111111 on 
25 May 1983, 2 years after his reported head injury.  He successfully completed his tour of active service, 3 years after his reported head injury.  There is no evidence to show the applicant could not perform his duties while on active duty.  Therefore, there is insufficient evidence to show a medical discharge was warranted.

4.  The rating action by the DVA does not necessarily demonstrate an error or injustice on the part of the Army.  The DVA, operating under its own policies and regulations, assigns disability ratings as it sees fit.
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)                                         AR20100007991





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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)