IN THE CASE OF:	  

		BOARD DATE:	  29 March 2011

		DOCKET NUMBER:  AR20100023317 


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 correction of his records to show he was medically retired with full benefits instead of being discharged under Army Regulation
635-200 (Personnel Separations - Enlisted Personnel), chapter 13, by reason of unsuitability with a general discharge.

2.  The applicant states he was discharged from the Army on 11 September 1973 without being afforded the benefit of a medical board to determine the status of his health even though his records clearly show a very serious health condition which also included hospitalization while on active duty.

3.  The applicant provides:

* his General Discharge Certificate and discharge orders
* his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* a Standard Form (SF) 506 (Clinical Record - Physical Examination)
* an SF 506 (Clinical Record -History - Part 2)
* an SF 507 (Clinical Record - Psychological Evaluation)
* a VA (Veterans Administration) Form 10-1000 (Hospital Summary)
* an SF 502 (Clinical Record - Narrative Summary)
* an SF 513 (Clinical Record - Consultation Sheet)
* a VA Form 10-10m (Medical Certificate and History)
* 
a letter from the VA
* a VA psychiatric report, medical report, rating decision, certificate of attending physician, and appeal decision

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 17 November 1972 for a period of 2 years.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 36A (Field Wireman).

3.  Subsequent to completion of MOS training, he was reassigned to Korea.  He was assigned to Battery A, 2nd Battalion, 61st Air Defense Artillery.  While in Korea, his record shows he was frequently counseled by members of his chain of command as follows:

* on 19 June 1973 for poor attitude toward duty performance and failing to cooperate with noncommissioned officers
* on 2 July 1973 for temper tantrums and inability to adjust to the military system
* on 6 July 1973 for a psychiatric evaluation subsequent to a drug overdose
* on 15 July 1973 pending nonjudicial punishment (NJP)
* on 19 July 1973 pertaining to the consequences of an unsuitability discharge

4.  On 23 July 1973, he accepted NJP under the provisions of Article 15 of the Uniform Code of Military Justice for violating a general regulation.

5.  On 6 August 1973, he underwent a mental evaluation.  The report shows he was fully alert and oriented, with a level mood and good memory.  He had no 

significant mental illnesses and he was mentally responsible, able to tell right from wrong, and possessed the mental capacity to understand and participate in board proceedings.  He met the retention standards prescribe in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.

6.  On 7 August 1973, the applicant's immediate commander notified the applicant that he was being considered for elimination from the Army under the provisions of Army Regulation 635-200, chapter 13, by reason of unsuitability.  

7.  On 8 August 1973, the applicant acknowledged he had been notified of the pending separation action against him and that he had been advised by counsel of the basis for the contemplated action to separate him for unsuitability.  He waived consideration of his case by a board of officers, personal appearance before a board of officers, and again elected not to submit a statement in his own behalf.  He also waived representation by his appointed counsel.

8.  The applicant acknowledged he understood that he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.  He also acknowledged he understood in the event of the issuance of an undesirable discharge under conditions other than honorable he might be ineligible for many or all benefits as a veteran under both Federal and State laws, and he may encounter substantial prejudice in civilian life.

9.  On 17 August 1973, the applicant's immediate commander initiated separation action against the applicant under the provisions of Army Regulation 635-200, chapter 13, by reason of unsuitability.  The immediate commander remarked that the separation was recommended because of the applicant's emotional and mental instability and his chronic failure to adjust to military life.  He had on several occasions become completely irrational in his behavior, characterized by temper tantrums.  He threatened to take his life repeatedly and nearly accomplished this act through an overdose of prescribed medication.  His problem was complicated by his failing to effectively communicate in English and his lack of effort in attempting to learn the language.  He was totally unresponsive to extensive rehabilitative and psychological counseling available to him.  There appeared to be no grounds for other disposition.

10.  On 17 August 1973, the applicant's intermediate commander recommended the applicant's elimination from the Army by reason of unsuitability.

11.  On 23 August 1973, the separation authority approved the applicant's discharge from the Army under the provisions of Army Regulation 635-200, chapter 13, by reason of unsuitability with the issuance of a General Discharge Certificate.  On 11 September 1973, the applicant was accordingly discharged.  

12.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, chapter 13, with a General Discharge Certificate.  He had completed 9 months and 25 days of total active service.

13.  His official service medical records are not available for review with this case.  However, his record contains a DA Form 3082-R (Statement of Physical Condition); dated 11 September 1973, wherein he stated that there had been no change in his medical condition.  

14.  He submitted:

* an SF 506, dated 2 October 1974, that shows an impression of chronic, undifferentiated type of schizophrenia 
* an SF 506, dated 2 October 1974, that shows the details of his mental status examination, including his childhood history, family history, and past history
* an SF 507, dated 22 October 1974, that shows he underwent a summary of tests resulting in an impression of chronic, undifferentiated type of schizophrenia with paranoid flavor
* a VA Form 10-1000, dated 17 January 1975, that shows he was admitted to a VA hospital on 2 October 1974 for chronic, undifferentiated type of schizophrenia
* an SF 502, dated 27 December 1974, that shows an interim impression of chronic, undifferentiated type of schizophrenia
* an SF 513, dated 7 October 1974, that shows he was assigned to occupational therapy for a program of psychiatric activities
* a VA Form 10-10m, dated 2 October 1974, that essentially shows a diagnosis of schizophrenia
* a letter, dated 28 February 1977, from the VA to the applicant's doctor requesting his medical records
* a psychiatric report, dated 2 March 1977, wherein a civilian doctor diagnosed the applicant with chronic schizophrenic reaction of the paranoid type
* a VA medical review of authorized treatment, dated 20 August 1977 regarding the applicant's mental status
* a VA rating decision, dated 13 November 1978, that shows the VA awarded him service-connected disability rating for chronic schizophrenia
* a VA appeal decision dated 15 October 2008, concerning an increase in his service-connected disability rating

15.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) currently in effect establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  It provides for medical evaluation boards, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501 (Standards of Medical Fitness).  If the medical evaluation board (MEB) determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a physical evaluation board (PEB).

16.  Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment including officer procurement programs, retention, and separation including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities.

17.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher VA rating does not establish an error or injustice in the Army rating.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The VA does not have authority or responsibility for determining physical fitness for military service.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  As a result, these two government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment.  Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant served on active duty from 17 November 1972 through 11 September 1973.  His record reveals he was unsuitable for military service as evidenced by his inability to adjust to the military system.  He was provided with multiple counseling and/or opportunities for rehabilitation by his chain of command but he failed to respond constructively.  Accordingly, his chain of command initiated separation action against him.

2.  He underwent a mental status evaluation and he was found mentally able to understand the separation proceedings.  The mental examination report indicated he was found to have met the retention standards of Army Regulation 40-501.  Additionally, he indicated that there had been no change in his medical condition.

3.  His separation action was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would have jeopardized his rights.  The discharge proceedings were conducted in accordance with applicable law and regulations at the time and the character of his service is commensurate with his overall record of military service.  The reason for discharge and the characterization of service were both proper and equitable.  

4.  There is no evidence in his records and he did not provide substantiating evidence that shows he was medically disqualified for retention.  There is no evidence that he suffered from an illness or an injury that rendered him unfit to perform the duties of his grade or MOS or warranted his referral to the PDES).  Therefore, he was not considered by an MEB.  Without an MEB, there would have been no basis for referring him to a PEB.  Without a PEB, the applicant could not have been issued a medical discharge or separated/retired for physical disability.

5.  But even if he did have a medical condition, the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade or rating.  The Army must find that a service member is physically unfit to reasonably perform his/her duties and assign an appropriate disability rating before that service member can be medically separated or retired.

6.  Subsequent to his discharge from the Army, he was evaluated by VA and/or civilian doctors and he was diagnosed with chronic, undifferentiated type of schizophrenia.  He was ultimately awarded service-connected disability compensation for this condition.  However, an award of a rating by another agency does not establish error by the Army.  Operating under different laws and its own policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service.  The VA may award ratings because of a medical condition related to service (service-connected) that affects the individual's civilian employability.

7.  In view of the foregoing, there is no basis for granting his requested relief.
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)                                         AR20100023317



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ABCMR Record of Proceedings (cont)                                         AR20100023317



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