IN THE CASE OF:	  

		BOARD DATE:  24 July 2012

		DOCKET NUMBER:  AR20120002338 


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 a medical retirement.

2.  The applicant provides multiple self-authored statements in which he details his upbringing and military experience.  However, he does not state what specific illness or injury rendered him unfit for military service or why he should receive a medical discharge.  He appears to base his request on his current Department of Veterans Affairs (VA) service-connected disability compensation.

3.  The applicant provides:

* Multiple self-authored letters
* VA rating decision
* VA claim and allied documents
* Multiple correspondence with and from the VA
* Selected VA clinical records and reports
* Multiple congressional letters
* Listing of current medication
* Selected civilian medical records

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 was inducted into the Army of the United States on 24 June 1971 and he held military occupational specialty (MOS) 76A (Supply Clerk).  He served in Germany from 6 January 1972 to on or about 5 July 1972.  He was assigned to the 97th Quartermaster Battalion.

3.  His record contains multiple counseling statements from members of his chain of command for various infractions including:

* Apathetic attitude
* Lack of discipline
* Lack of respect for authority
* Disregard for minimum standards of performance
* Constant desire to leave the Army
* Refusal to work
* Disobedience of orders
* Unsatisfactory conduct and efficiency

4.  On 12 April 1972, the applicant's unit commander submitted an AE Form 3133 (Unit Commander Report for Psychiatric Examination) wherein he stated the applicant had little value to mission accomplishment in his unit.  His periods of despair and depression prevented him from being a real part of the unit.  His efficiency was below par and he lacked initiative.  He lapsed into moods and walked around seemingly dazed by life itself.

5.  His service record shows he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice on/for:

* 15 May 1972, disobeying a lawful order from a superior commissioned officer
* 22 May 1972, willfully disobeying a lawful order from a superior noncommissioned officer

6.  On 2 June 1972, the applicant's immediate commander notified him by memorandum that he was being recommended for separation under the provisions of Army Regulation 635-212 (Personnel Separations) due to unsuitability for military service based on complete apathy for the standards of discipline and duty performance and total indifference toward individuals in positions of authority.  

7.  On 8 June 1972, he acknowledged the above notification and subsequently consulted with legal counsel regarding the pending separation action.  He was advised of its effect and the rights available to him.  He waived consideration of his case by a board of officers, waived personal appearance before a board of officers, and elected to submit a statement.  He further indicated he understood if a general discharge, under honorable conditions, was issued to him, he could expect to encounter substantial prejudice in civilian life.  In his statement, he appealed to the separation authority to be given an honorable instead of a general discharge so as not to be subjected to prejudice upon applying or obtaining a civilian job.  

8.  The applicant's immediate commander subsequently initiated separation action against him in accordance with Army Regulation 635-212 for unsuitability with a General Discharge Certificate.  He stated:

* The applicant had undergone a complete lapse into a very apathetic and lethargic state which led to his hospitalization at Landstuhl Medical Center where he was diagnosed with latent schizophrenia
* He had been of little value to the unit and had been counseled repeatedly but could not be swayed from his decision and determination not to perform as a Soldier
* His apathy had reached the state where he was willing to accept NJP each day rather than perform his duties as a Soldier
* He provided no contributions to the unit's daily operational requirements; he was not a Soldier

9.  On 14 June 1972, the separation authority approved his discharge for unsuitability under the provisions of Army Regulation 635-212 and directed that he be issued a General Discharge Certificate.  Accordingly, the applicant was discharged on 6 July 1972.  

10.  The applicant's DD Form 214 shows he was discharged under the provisions of Army Regulation 635-212 by reason of unsuitability and issued a general discharge.  He had completed 1 year and 13 days of creditable active service.  His DD Form 214 also shows he was assigned Separation Program Number 46A (apathy). 

11.  His mental status evaluation is not available for review with this case.  Additionally, his service medical records are also not available for review with this case.  There is no indication in his military records that shows:

* he was issued a permanent physical profile
* he suffered an illness or an injury that rendered him unable to perform the duties required of his grade or MOS
* he was referred to the Army Physical Disability Evaluation System (PDES)

12.  He submitted:

	a.  Multiple self-authored statements, dated on various dates, wherein he chronicles his childhood, the challenges he experienced, his military service, and some of the difficulties he encountered with his captain.  One hand-written note states he needs a TRICARE card for going blind (eye problem), nerves, arthritis, heart problem, bad skin, lungs, post-traumatic stress disorder (PTSD), and a plate in the neck.

	b.  A VA rating decision, dated 21 September 2011, that shows the VA awarded him a 100 percent service-connected disability compensation for schizophrenia. 

	c.  Multiple congressional letters to the VA regarding the applicant's service-connected disability compensation.

	d.  A listing of current medications as of 15 December 2011 (33 medications).

	e.  A VA letter, dated 20 June 1994, awarding him an increase in service-connected disability compensation to 100 percent for psychosis.

	f.  An allied VA medical document, dated 31 May 1994, related to the rating decision shows he was hospitalized and diagnosed with PTSD and that he was admitted to the VA hospital for nervousness, depression, and some paranoia. 

	g.  Multiple correspondence, dated over a period of several years, from the VA related to his pension claim, employability, appeals, and a family history of schizophrenia.

	h.  A civilian medical document, dated 1 September 2011, related to bone and joint pain, arthritis, and a history of cervical fusion (2008).

13.  Army Regulation 635-212, then in effect, set forth the policy and procedures for administrative separation of enlisted personnel for unfitness and unsuitability.  When separation for unsuitability was warranted, an honorable or general discharge was issued as determined by the separation authority based upon the individual's entire record.  Paragraph 6b provided that an individual was subject to separation for unsuitability when one or more of the following conditions existed:

* inaptitude
* character and behavior disorders
* apathy (lack of appropriate interest, defective attitudes, and inability to expend effort constructively)
* alcoholism
* enuresis

14.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) currently in effect establishes the Army 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 or her 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 prescribed in Army Regulation 40-501 (Standards of Medical Fitness).

15.  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 rating of at least 30 percent.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30 percent.

16.  Title 38, U.S. Code, sections 1110 and 1131, permits 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. 


DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant’s quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His record of service includes frequent counseling by members of his chain of command and two instances of NJP.  His apathetic behavior and failure to respond to counseling led his chain of command to initiate separation action against him.  

2.  His administrative separation was accomplished in compliance with applicable regulations.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The type of discharge directed and the reason for separation are appropriate considering all the facts of the case.

3.  Although he contends he should be entitled to a medical discharge, he neither stated the unfitting medical condition nor provided evidence of an unfitting medical condition.  There is no evidence in his records and he did not provide any substantiating evidence that shows he was medically disqualified for retention or separation.  Nowhere in his records does it show he:

* was issued a permanent physical profile
* suffered an illness or an injury that rendered him unable to perform the duties required of his grade or MOS
* was referred to the Army PDES

4.  Even if he suffered an injury or an illness (such as latent schizophrenia), the mere presence of an 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 or her duties and assign an appropriate disability rating before that service member can be medically separated or retired.

5.  Furthermore, an award of a rating by another agency – the VA in this case –does not establish an 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.  

6.  In view of the foregoing evidence, he is not entitled to the 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)                                         AR20120002338



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ABCMR Record of Proceedings (cont)                                         AR20120002338



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