IN THE CASE OF:	  

		BOARD DATE:	  27 January 2011

		DOCKET NUMBER:  AR20100016660 


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, correction of his records to show he was discharged by reason of physical disability.

2.  The applicant states he was suffering from a severe seizure disorder, post traumatic stress disorder (PTSD), traumatic brain injury (TBI), and other mental health issues at the time of his discharge.  He states he "was unable to function effectively on his own behalf."

3.  The applicant provides:

* A letter from his wife dated 27 May 2010
* A letter from his wife to the U.S. Army Physical Disability Agency (PDA) dated 29 October 2006
* DD Form 214 (Report of Separation from Active Duty) and Honorable Discharge Certificate, dated 21 June 1978
* DD Form 214 dated 21 December 1971
* DD Form 214 dated 19 August 1965
* Department of Veterans Affairs (VA) Notification of Entitlement dated 14 March 2008
* VA Rating Decision dated 12 March 2008
* General Power of Attorney dated 14 November 2007
* DA Form 3349 (Medical Condition – Profile Record)



* Headquarters XVIII Airborne Corps, Fort Bragg Orders 118-55 dated 
19 June 1978
* Headquarters XVIII Airborne Corps and For Bragg Orders 95-57 dated 
16 May 1978
* U.S. Army Regional Personnel Center, Nurnberg Orders 262-113 dated 19 September 1977
* Notification of assignment dated 15 November 1977

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 20 August 1962, the applicant enlisted in the Regular Army for 3 years.  He completed training as a teletype equipment repairman.  He remained on active duty through continuous reenlistments and extensions.  

3.  On 30 July 1970, the applicant was placed on a physical profile due to being diagnosed with grand mal seizure disorder, nocturnal.  He was found to be medically qualified with duty limitations.  His physical profile limited his duty to no assignment in his unit where sudden loss of consciousness would be dangerous to himself or others, such as:

* Working on scaffolding
* Handling ammunition
* Vehicle driving
* Working near moving machinery

4.  On 8 June 1978, the applicant's commander recommended that he be denied a waiver to reenlist.  The commander stated:

* The applicant was scheduled to be discharged for unsatisfactory performance, at the expiration of his term of service on 21 December 1977
* There was no possibility of reenlistment, due to grade requirements
* In an effort to give him a second chance the unit commander recommended that he be allowed to extend his service for 6 months
* At the time there appeared to be the possibility of him experiencing mental problems
* He was given every opportunity to continue to work in the section to which he was assigned
* He was given a thorough medical and mental examination at Womack Army Hospital and Walter Reed Army Hospital
* Both hospitals reported that he had no physical or mental handicap

5.  On 21 June 1978, the applicant was honorably discharged at the completion of his required service.  He had 15 years, 10 months, and 2 days of total active service.

6.  A review of the available records does not show the applicant was suffering from PTSD or TBI while he was in the Army.  His records also do not show he was suffering from any medically unfitting condition that would have required him to be processed for discharge through medical channels.

7.  The DA Form 3349 the applicant submits shows on 14 June 1973, his commander was notified he was medically qualified for active duty with the same limitations he had in 1970.  He was diagnosed with a seizure disorder and his physical profile was permanent.

8.  He also submits a letter authored by his wife requesting that his records be corrected to show he was medically discharged.  She states:

* Honorably discharging her husband instead of medically discharging him has caused him, her, and their family great anguish
* They have been fighting against a system that does not care about right or wrong
* She believes the Army is disregarding the fact that her husband was disabled when he was on active duty
* When he was no longer able to function according to military expectations, they cast him aside without providing him any benefits for his service-connected disability
* The same sort of thing has been happening to Iraq and Afghanistan veterans



* The military continues to fail to acknowledge that service member's with PTSD and TBI have service-connected injuries.  Instead the military discharges them for behavior and personality problems
* The military sends our troops back home wounded, some are so severely wounded that they will never be able to take care of themselves
* Regardless of whether the wounds are physical, mental or emotional, they are damaged forever
* The government should take a more responsible role in the Soldier's treatment, recovery, financial assistance to family members and care givers, and emotional healing
* Soldiers pay a heavy price for freedom and the rest of society should be willing to share the burden when Soldiers returned from War damaged and disabled
* The applicant is missing out on some benefits that he would be entitled to had he received a medical discharge years ago

9.  In the letter authored by his wife, addressed to the PDA, she requests that the applicant's records be corrected to show he was medically discharged.  She provides details on why she believes his seizures were caused by Agent Orange.

10.  The letter from the VA shows the applicant was awarded a 100 percent service-connected disability rating for dementia, effective 18 September 2007.  

11.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties 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.  Army Regulation 40-501 (Standards of Medical Fitness) provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.  Performance of duty despite an impairment would be considered presumptive evidence of physical fitness.

13.  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's contentions have been noted and his supporting documents have been considered.  However, his records do not show he was suffering from PTSD or TBI or any other mental disorder while he was in the Army.  

2.  He was diagnosed with grand mal seizure disorder in July 1970.  He continued to serve in the Army until he was discharged in 1978, upon completion of his required service obligation.

3.  His records also do not show he was suffering from any medically unfitting condition that would have required him to be processed for discharge through medical channels.

4.  The fact that the VA, in its discretion, has awarded the applicant a disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish physical unfitness for Department of the Army purposes.

5.  In view of the foregoing, 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 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)                                         AR20100016660



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ABCMR Record of Proceedings (cont)                                         AR20100016660



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