IN THE CASE OF:	  

		BOARD DATE:	  21 September 2010

		DOCKET NUMBER:  AR20100010305 


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, a medical discharge. 

2.  The applicant states she was diagnosed with a service-connected disability (paranoid schizophrenia) around September 1978 for which she should have been medically discharged.  She was told she did not qualify to be discharged under medical conditions and did not know she qualified for medical benefits until September 2005 or for disability benefits until January 2006.  She applied for Department of Veterans Affairs (VA) benefits the same day she found out the Army had given her false information.  She is 100-percent totally and permanently disabled.  

3.  The applicant states she should have received disability benefits effective September 1978 instead of January 2006.  The Army told her she would not be able to find a job if she did not stay in the Army or got out on an honorable discharge.  Her military records and DD Form 214 (Certificate of Release or Discharge from Active Duty) should have specified she had a medical disability so she can receive additional benefits effective September 1978 as well as compensation for pain and suffering.

4.  The applicant provides a copy of her DD Form 214 in support of her application.



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 Regular Army on 4 April 1978 for a period of 3 years.  She trained as a unit supply specialist and attained the rank of specialist four effective 1 June 1980.  On 23 December 1980, she was honorably discharged for immediate reenlistment.  On 24 December 1980, she reenlisted for a period of 3 years.

3.  On 2 December 1983, the applicant signed a Medical Examination for Separation/Retirement Statement of Option which states, "I understand that I am not required to undergo a medical examination for separation (or retirement) from active duty.  If I elect not to undergo a separation examination, I also understand that my medical records will be reviewed by a physician at the appropriate medical treatment facility and if the review indicates that an examination should be accomplished, I will be scheduled for examination based on the results of the review.  I do not desire a separation medical examination."  On 2 December 1983, her medical records were reviewed by competent medical authorities and it was determined that a medical examination for separation was not required.

4.  On 6 December 1983, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 4, and Department of the Army message, dated 151810Z September 1983, for her expiration of term of service and the Christmas early release program.  She served a total of 5 years, 8 months, and 3 days of creditable active service.

5.  There is no evidence of record which shows the applicant was diagnosed with any mental or medical condition prior to her discharge on 6 December 1983.

6.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 4 provides for the discharge or release from active duty upon termination of enlistment, and other periods of active duty or active duty for training.  

7.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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.

8.  Title 10, U.S. Code, chapter 61, provides for 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.  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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's contention that she was diagnosed with paranoid schizophrenia around September 1978 and should have been medically discharged.  The evidence of record shows the applicant was honorably discharged on 23 December 1980 for immediate reenlistment which means she was fully capable of performing her duties on that date.  The evidence of record also shows she was honorably discharged at the expiration of her term of service on 6 December 1983.  There is no evidence of record which shows the applicant was diagnosed with any mental or medical condition prior to her discharge on 6 December 1983.

2.  There is insufficient evidence to show the applicant was unable to perform her duties or she was eligible for physical disability processing prior to her discharge on 6 December 1983.  Therefore, there is no basis for granting the applicant's request.

3.  The rating action by the VA does not demonstrate an error or injustice on the part of the Army.  The VA, 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)                                         AR20100010305



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ABCMR Record of Proceedings (cont)                                         AR20100010305



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