IN THE CASE OF:	  

		BOARD DATE:	    9 June 2011

		DOCKET NUMBER:  AR20100027923 


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 reconsideration of his previously-denied request for an upgrade of his under other than honorable conditions discharge to an honorable discharge.  Additionally, he requests that the narrative reason for separation be changed to disability.

2.  He states he was discharged because of behavioral problems he was having due to post-traumatic stress disorder (PTSD).  He adds that his condition started in Vietnam when he was in the Marine Corps and continued during his Army service.  He maintains his medical condition should have been recognized at the time, but it was not.  He offers that it took the Department of Veterans Affairs (VA) many years to recognize his condition.

3.  He provides a VA Rating 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 ABCMR denied the applicant’s request for upgrade of his discharge from under other than honorable conditions to honorable, in Docket Number AC8907723, dated 11 July 1990.  He requested reconsideration on 16 February 1991.  His request for reconsideration was returned without action citing that there was insufficient evidence presented to indicate a probable material error or injustice.  Therefore, his request to change his character of service to honorable will not be addressed in these proceedings.  

3.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that on 16 May 1988, he was discharged for the good of the service in lieu of trial by court-martial under the provisions of chapter 10 of Army Regulation 635-200  (Personnel Separations - Enlisted Personnel), with a character of service of under other than honorable conditions.  He had been charged with possession of 25 grams of hashish and two illegal knives.

4.  His record is void of any evidence and he has not provided any evidence showing he was diagnosed with PTSD or any type of medical condition at the time of separation.  

5.  The VA Rating Decision, dated 28 August 2010, indicates the applicant served in the Marine Corps from 1 April 1970 to 9 February 1972, and in the Army from 26 June 1974 to 24 October 1985 and from 7 May 1986 to 16 May 1988.  The VA granted him service connection for PTSD with depressive disorder with a disability rating of 70 percent effective 1 March 2010.  

6.  Army Regulation 635-40, (Physical Evaluation for Retention, Retirement, or Separation) states that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  When a Soldier is being processed for separation for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until Soldier is scheduled for separation, is an indication that the individual is fit.  

7.  Army Regulation 635-40 also states the commander will refer a Soldier to the servicing medical treatment facility for medical evaluation when the Soldier is believed to be unable to perform the duties of his or her office, grade, rank, or rating.  The medical treatment facility commander having primary medical care responsibility will conduct an examination of a Soldier referred for evaluation.  The commander will advise the Soldier's commanding officer of the results of the evaluation and the proposed disposition.  If it appears the Soldier is not medically qualified to perform duty, the medical treatment facility commander will refer the Soldier to a Medical Evaluation Board. 

8.  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 argues, in effect, that his narrative reason for separation should be changed to show he was separated due to a disability because his indiscipline was caused by PTSD that developed when he was in Vietnam and went undiagnosed.  However, there is no evidence in his record and he provided no evidence to show he suffered from PTSD while he was in the military.

2.  There is also no evidence and he did not provide any to show he was physically unfit to perform his duties at the time of separation.  

3.  He implies that since he received a 70 percent disability rating from VA for PTSD he should have been separated due to disability.  The VA is not required by law to determine medical unfitness for further military service.  The VA awards compensation solely on the basis that a medical condition exists and the medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, the applicant's medical condition of PTSD with depressive disorder, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify him for VA benefits based on an evaluation by that agency.

4.  Furthermore, an award of a VA disability rating after separation from the service does not establish entitlement to medical retirement or separation.  Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected.  The VA can evaluate a veteran throughout his/her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  On the contrary, the Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.  Consequently, there is no basis for granting the applicant's 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.



      _______ _   _______   ___
               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)                                         AR20100027923



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ABCMR Record of Proceedings (cont)                                         AR20100027923



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