IN THE CASE OF:	  

		BOARD DATE:	  26 May 2011

		DOCKET NUMBER:  AR20100025473 


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 honorable discharge be changed to a medical retirement.

2.  The applicant states, in effect, he should have been given a Medical Evaluation Board (MEBD) and a medical retirement.  He was suffering from the symptoms of post-traumatic stress disorder (PTSD) due to his service in the Republic of Vietnam between 1971 and 1972 while he was on active duty.  He should have been medically retired due to PTSD instead of just honorably discharged.  He was treated at Walter Reed Army Medical Center in 1980 and the Department of Veterans Affairs (VA) Medical Center, Washington DC in 1986 for PTSD.  He has 100 percent disability for PTSD from Social Security Administration and the VA.

3.  The applicant provides no additional evidence in support of his 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.  He was commissioned a second lieutenant in the Military Intelligence Branch, U.S. Army Reserve (USAR) on 14 July 1969.  He was ordered to active duty effective 25 May 1970 for an active duty commitment of 2 years.

3.  On 13 July 1970, his request for retention on active duty was approved effective 24 May 1972.  He was to be retained on active duty until further notice.

4.  He was assigned to the 575th Military Intelligence Detachment in the Republic of Vietnam from 20 December 1971 to 17 October 1972.

5.  On 24 May 1971, he was promoted to first lieutenant and to captain on 
24 May 1974.

6.  On 6 October 1977, he was transferred to the Judge Advocate General's Corps (JAGC).

7.  His military records contain a DA Form 67-8 (U.S. Army Officer Evaluation Report) (OER) for the period 25 September 1980 to 20 February 1981.  His rater gave him (on a scale of 1-5, 1 being the highest) a rating of "1" in all professional competencies.  His performance during the rating period always exceeded requirements.  His potential for promotion to the next higher grade was indicated as "promote with contemporaries."

8.  On 8 October 1981, he was notified that he was not selected for promotion to major a second time and that he would be released from active duty not later than the 90th day after receipt of his notification.

9.  On 6 January 1982, he was released from active duty by reason of failure of selection, temporary promotion.  He had completed 11 years, 7 months, and 
13 days of active service that was characterized as honorable.

10.  His service medical records were not available for review.

11.  Paragraph 4-30 of Army Regulation 135-155 (Army National Guard and U.S. Army Reserve, Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), then in effect, stated that an officer who twice failed to be selected for promotion to captain, major, or lieutenant colonel would not again be considered for promotion and would be removed from an active status within 
90 days after the selection board submits its results to Headquarters Department of the Army.

12.  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 an MEBD.  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.

13.  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.

14.  Title 38, U.S. Code, 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.  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.  There is no evidence he was diagnosed with PTSD prior to being released from active duty by reason of being non-selected for promotion twice.

2.  The available evidence does not indicate he was diagnosed with any mental or physical condition, or that he failed to meet the medical retention criteria.
3.  His latest OER clearly shows he was able to perform the prescribed duties associated with his rank as of February 1981, after he contends he was hospitalized in 1980.  There is no evidence that he was limited in any way due to a mental or physical condition.  There is also no evidence of an injury or illness occurring immediately prior to or coincident with his discharge that rendered him unfit.  Therefore, he is presumed to have been fit for duty.

4.  The available evidence is insufficient to support changing the applicant's discharge to show he was medically retired.

5.  The VA has neither the authority nor the responsibility for determining physical fitness for military service.  The VA awards disability ratings to veterans for conditions that are determined to have been incurred during military service and subsequently affect the individual’s employability.  Accordingly, it is not unusual for the VA to award a veteran a disability rating when the veteran was not separated due to physical unfitness.  Furthermore, the VA can evaluate a veteran throughout his or her lifetime, awarding and/or adjusting the percentage of disability of a condition based upon that agency’s examinations and findings.

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)                                         AR20100025473



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ABCMR Record of Proceedings (cont)                                         AR20100025473



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