IN THE CASE OF:	  

		BOARD DATE:	  5 July 2011

		DOCKET NUMBER:  AR20100028398 


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 discharge for physical unfitness with severance pay be corrected to a medical retirement.

2.  The applicant states that by law he was required to be placed on the Temporary Disability Retired List (TDRL) and rated 50 percent disabled pending classification under the Diagnostic and Statistic Manual (DSM) of Mental Disorders.  He has received a Department of Veterans Affairs (VA) disability pension for over 40 years.

3.  The applicant does not provide any additional documents.

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’s military records show that he enlisted in the Regular Army on 15 August 1967, was awarded the military occupational specialty of general vehicle repairman, served in Korea, and was promoted to pay grade E-3.

3.  On 3 September 1968, a medical evaluation board (MEB) convened and determined that the applicant was medically disqualified due to schizophrenic reaction, paranoid type, acute, severe, improved, manifested by disorganized thought processes, active withdrawal from peer relationships, paranoid ideation and history of marginal social adjustment; mild stress, routine military duty; moderate predisposition, history of poor identity formation and insecure object relationships; marked impairment.  The MEB found his schizophrenic reaction had improved and stated that he was mentally competent for pay purposes, had the capacity to understand the nature of and cooperate in board proceedings, and could be discharged to his own care.  The MEB forwarded the case to a physical evaluation board (PEB).

4.  On 21 September 1968, an informal PEB convened and determined that the applicant was physically unfit due to schizophrenic reaction, paranoid type, slight severity, under Veterans Administration Schedule for Rating Disabilities (VASRD) Code 9203.  The PEB stated that its findings were based on the MEB's diagnosis and the Narrative Summary (NARSUM) (the NARSUM is not contained in the applicant's records).  The PEB recommended that the applicant be discharged with severance pay, rated 10 percent disabled.

5.  The applicant concurred and waived a formal hearing.  Accordingly, on 27 November 1968 he was honorably discharged with severance pay.

6.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), dated 15 May 1967, Appendix B, stated that for VASRD Codes 9200-9210, ratings would be assigned as follows:

* Complete.  Members determined to have this degree of severity will most often be declared incompetent and, if not transferred to a VA hospital, be discharged to the care of a relative or guardian.  

* Severe.  This will rarely be used since a condition which fulfills its criteria is usually more appropriately given a rating of "complete."

* Considerable and Definite.  These degrees of severity are considered appropriate when the member has some potential employability.  A member's overall life-adjustment will be considered in a choice of the degree of severity.

* Slight.  The "slight" degree of severity will be appropriately applicable subsequent to psychotic episodes, with or without residuals, when none of the foregoing are applicable.

7.  Army Regulation 635-40, in effect at the time, did not contain any requirement to classify a mental disorder under the DSM II (in effect at the time).

8.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.

9.  Title 10, U.S. Code, section 1203, provides for the physical disability separation with severance pay of a member who has less than 20 years service and a disability rated at less than 30 percent.

DISCUSSION AND CONCLUSIONS:

1.  Contrary to the applicant's contention, there was no requirement at the time to transfer him to the TDRL until he was classified under the DSM II.

2.  Without the applicant's NARSUM, there are no details of his physically unfitting condition.  However, the MEB found he had a severe schizophrenic reaction which had improved and stated that he was mentally competent for pay purposes, had the capacity to understand the nature of and cooperate in board proceedings, and could be discharged to his own care.  Based on that diagnosis, it would appear that the PEB properly found the applicant's disability to be slight and assigned a corresponding disability rating of 10 percent.

3.  In view of the foregoing, there is no basis for granting the applicant’s request.

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)                                         AR20100028398





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ABCMR Record of Proceedings (cont)                                         AR20100028398



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