IN THE CASE OF:	  

		BOARD DATE:	  29 December 2010

		DOCKET NUMBER:  AR20100015781


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, that his honorable discharge be changed to a medical discharge.

2.  The applicant states, in effect, that he should have been medically discharged.  He has suffered from major depression disorder and post traumatic stress disorder (PTSD) since being discharged.

3.  The applicant provides:

* Copy of his DD Form 214 (Armed Forces of the United States report of Transfer or Discharge) with a separation date of 25 November 1971
* Copies of 5 DA Forms 67-6 (Officer Efficiency Report) covering various periods from 19 May 1969 to 24 November 1971
* Special Orders 212, Headquarters, 101st Airborne Division (Airmobile), dated 31 July 1991, directing his reassignment to the 384th Adjutant General Replacement Company, Fort Hood, TX
* Letter from a medical doctor, dated 29 April 2010
* Letter from a family friend, dated 14 May 2010
* Listing of outpatient medications
* Chronological listing of medical problems from 27 February 2002 to        13 July 2009
* Four pages of Problem Lists
* Letter from Veterans Affairs (VA) Gulf Coast Veterans Health Care System, dated 12 August 2009, furnishing 3 pages of progress notes
* Letter from Headquarters, United States Army Vietnam, dated 22 March 1971, authorizing him to wear the Gallantry Cross with Bronze Star  
* Copies of certificates reflecting 3 awards of the Distinguished Flying Cross 
* Two-page TRICARE Treatment Plan
* Three-page Partial Hospitalization Discharge Summary
* Seven page Social History
* Five-page Quickview Social History Basic Report and 24-page Clinical Supplement
* 3 pages of Progress notes from the University of South Alabama, Department of Psychiatry

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's military personnel records show he enlisted in the Regular Army on 10 June 1968.  He attended Warrant Officer Flight Training.  He completed the Warrant Officer Course and was honorably discharged from his enlisted status on 18 May 1969, and took the Oath of Office as a Reserve Warrant Officer on 19 May 1969.  He entered active duty that date.
 
3.  On 8 June 1970, he began his tour in the Republic of Vietnam (RVN) as a Rotary Wing Aviator assigned to Company A, 159th Aviation Battalion, 101st Airborne Division (Airmobile) until he departed RVN on 27 May 1971.  

4.  The applicant's military service records reflect he was awarded the Distinguished Flying Cross on 3 occasions during his tour in RVN.

5.  His records contain a FH Form 646 (Medical Clearance for Flying Duties) dated 21 November 1971.  The applicant indicated he was on flying status and had no intervening illnesses or injury since his last flight physical.
6.  The applicant was issued a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) relieving him from active duty effective 
25 November 1971, for the Convenience of the Government.  He was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement).  He received an Honorable characterization of service.  He completed 3 years, 5 months, and 16 days of total active military service.

7.  On 26 August 1975, the applicant was issued Letter Orders Number
08-1280420, Office of the Adjutant General, U.S. Army Reserve Components Personnel and Administration Center, announcing his discharge from the USAR Control Group Standby under Honorable conditions effective 4 September 1975, because he had failed to maintain an active status. 

8.  There is no evidence in the applicant's military personnel records showing he had been diagnosed with any mental or physical condition that would have medically disqualified him to perform duty.  There is no evidence showing he failed to meet medical retention standards.

9.  The applicant's service medical records were not available for review.

10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board (MEB). Those members who do not meet medical retention standards will be referred to a physical evaluation board (PEB) for a determination of whether they are able to perform the duties of their grade and military specialty with the medically-disqualifying condition.

11.  Army Regulation 635-40, paragraph 2-2b(1) then in effect, provided that when a member was being separated by reasons other than physical disability, his or her continued performance of assigned duty commensurate with his or her rank or grade until he or she was scheduled for separation or retirement created a presumption that he or she was fit.  This presumption could be overcome only by clear and convincing evidence that he or she was unable to perform his or her duties for a period of time or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

12.  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.  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 physically 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 his honorable discharge should be changed to a medical discharge because he has suffered from major depression disorder and PTSD since his discharge.

2.  There is no available evidence showing the applicant had any medical condition, incurred while entitled to receive basic pay, which was so severe as to render him medically unfit for retention on active duty.  Accordingly, the applicant was separated from active duty for reasons other than physical disability.  

3.  Because the applicant's medical condition was not medically unfitting for retention at the time of his release from active duty there was no basis for a medical retirement or separation.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20100009160



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ABCMR Record of Proceedings (cont)                                         AR20100015781



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