IN THE CASE OF:	  

		BOARD DATE:	  31 March 2011

		DOCKET NUMBER:  AR20100022756 


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 his disability rating be increased from 30 percent to 100 percent.

2.  The applicant states:

* The condition of paranoid schizophrenia makes it impossible to maintain a livelihood
* He has never been able to maintain himself for any length of time and has always had to move from place to place with little to nothing to support himself

3.  The applicant provides a:

* Department of Veterans Affairs (DVA) letter, dated 8 February 2010
* Social Security Statement, dated 9 August 2010 

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 29 February 1972 for a period of 3 years.  He completed his training and was awarded military occupational specialty 36K (Tactical Wire Operations Specialist).

3.  On 13 November 1974, a Medical Evaluation Board (MEB) diagnosed the applicant with paranoid schizophrenia, chronic, moderate, manifested by detached and flattened affect, persecutory delusional ideation, anorexia, sleep disturbance, fears of bodily harm, social withdrawal, paucity of verbalization; and chondromalacia, left knee.  The MEB recommended referral to a Physical Evaluation Board (PEB).  He agreed with the MEB's action. 

4.  On 21 January 1975, a PEB found the applicant physically unfit due to schizophrenic reaction, paranoid type, with definite impairment of social and industrial adaptability; and knee, other impairment of, chondromalacia, slight, left.
The PEB recommended a combined rating of 40 percent and that the applicant be placed on the Temporary Disability Retired List (TDRL) with reexamination during May 1976.

5.  On 4 March 1975, the applicant was retired and placed on the TDRL the following day.

6.  On 18 May 1976, he underwent a TDRL examination.  

7.  On 1 July 1976, a PEB found the applicant physically unfit due to schizophrenia, paranoid type with considerable impairment of social and industrial adaptability.  The PEB recommended he be retained on the TDRL with reexamination during January 1978.

8.  On 23 February 1978, he underwent a TDRL examination.

9.  On 9 May 1978, a PEB found the applicant physically unfit due to schizophrenia, paranoid: definite impairment of social and industrial adaptability.
The PEB recommended a combined rating of 30 percent and that the applicant be permanently retired.  He failed to respond to the notification of the recommended PEB findings.

10.  On 12 June 1978, the U.S. Army Physical Disability Agency approved the PEB's findings and recommendations.
11.  He was removed from the TDRL and retired by reason of permanent disability with a disability rating of 30 percent.

12.  In support of his claim, he provided DVA documentation which shows he is receiving service-connected disability compensation (100 percent effective 
31 December 2009).

13.  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.  It states that, after establishing the fact that a Soldier is unfit because of physical disability, and that the Soldier is entitled to benefits, the PEB must decide the percentage rating for each unfitting compensable disability.  Percentage ratings reflect the severity of the Soldier's medical condition at the time of rating.

14.  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 rating action by the VA does not necessarily 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.  

2.  The applicant's condition may very well have worsened since his permanent disability retirement; however, the Army’s rating was dependent on the severity of his condition at the time the rating was made.  The VA has the responsibility and jurisdiction to recognize any changes in that condition over time by adjusting his disability rating.

3.  There is insufficient evidence to show the applicant's disability was improperly rated by the PEB or that his permanent disability retirement in 1978 was not in compliance with law and regulation.  Therefore, there is insufficient evidence on which to increase his disability rating.




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)                                         AR20100022756



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ABCMR Record of Proceedings (cont)                                         AR20100022756



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