BOARD DATE:	  21 August 2012

		DOCKET NUMBER:  AR20120004107 


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 an exception to the rule in the regulation applicable at the time (1994) to change her discharge from an honorable discharge with entitlement to severance pay to a 15-year retirement.

2.  The applicant states:

* she believes her request for a 15-year retirement was denied at the time because she refused to complete an overseas tour in Turkey
* she was labeled as a liability by the military because of her spiritual beliefs; she was diagnosed as having grandiose delusional disorder because of her beliefs
* she was pressured through consistent mistreatment and false accusations and awarded 10-percent severance pay
* the Department of Veterans Affairs (VA) later determined there was nothing wrong with her
* she was wrongfully treated and forced out of the Army by her captain
* she became a born-again Christian in January 1991, but she became a target of discrimination once that was known
* her commander pressured her into making a choice that she had not planned to make before completing 20 years of service
* she suffered the loss of a retirement with all the benefits that it entailed


3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* letter to counsel
* letter from the VA, dated 18 October 2010
* memorandum of reprimand, dated 26 October 1993
* memorandum, dated 27 October 1993, subject:  Command Referral of a Soldier for Mental Health Evaluation
* DA Form 268 (Report of Suspension of Favorable Personnel Actions (Flag)), dated 27 October 1993
* memorandum of counseling, dated 28 October 1993,
* Active Duty Military Intake Questionnaire
* Standard Form 93 (Report of Medical History)
* DD Form 2005 (Privacy Act Statement – Health Care Records), dated 1 November 1993
* multiple Standard Forms 600 (Chronological Record of Medical Care), dated from November 1993 to February 1994
* DA Form 200 (Transmittal Record), dated 7 June 1994
* Orders 152-0001, dated 1 June 1994 (discharge)
* letter from the VA, dated 2 September 1999
* VA Form 21-526 (Veterans Application for Compensation or Pension), dated 20 April 1998
* DA Form 137-R (Installation Clearance Record), dated 3 June 1994
* three DA Forms 2166-7 (Noncommissioned Officer (NCO) Evaluation Report) for the periods ending and November 1990 and September 1992 (two copies)
* DA Form 4187 (Personnel Action), dated 5 October 1993 (application for 15-year early retirement and allied documents, including endorsements and U.S. Total Army Personnel Command denial memorandum, dated 25 March 1994)
* message from U.S. Army Personnel Command (PERSCOM), dated 021349Z SEP 93 (2 September 1993), subject:  Corrections to Fiscal Year 1994 (FY94) Early Retirement Program
* hand-written note relating to legal counseling, dated 22 December 1993
* multiple DA Forms 3982 (Medical and Dental Appointment)
* Orders 1-1, dated 30 September 1991 (attachment pending reassignment)
* rating scheme for Contractor Support Detachment-East (CSD-East)
* personnel roster for CSD-East
* DA Form 2A (Personnel Qualification Record – Part I)
* DA Form 2-1 (Personnel Qualification Record – Part II)
* Orders 202-35 (assignment to CSD-East)
* 
User Section Responsibilities
* Medical Statement of Understanding for Overseas Movement, dates 20 October 1993
* DA Form 4036-R (Medical and Dental Preparation for Overseas Movement), dated 20 October 1993, with allied documents
* memorandum of counseling, dated 28 October 1993
* DA Form 458 (Charge Sheet), undated
* Memorandum, dated 23 November 1993, subject:  Transmittal of Court-Martial Charge, United States Versus (Applicant)
* 2nd endorsement, undated, subject:  Court-Martial Charge, United States Versus (Applicant) (dismissal)
* Standard Form 502 (Narrative Summary (NARSUM) – Clinical Résumé)
* DA Form 3947 (Medical Evaluation Board (MEB) Proceedings), dated 1 March 1994
* message from U.S. Army Personnel Command, dated 041246Z MAY 94 (4 May 1994), subject:  Enlisted Disability Separation (discharge approval)

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests correction of the applicant's 15-year separation with severance pay to a 15-year military retirement.

2.  Counsel states the issues raised by the applicant advance her contentions and substantially reflect the probative facts needed for an equitable review.

3.  Counsel provides no additional evidence.

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 records show she enlisted in the Regular Army on 16 January 1979 and held military occupational specialty (MOS) 71L (Administrative Specialist).  She attained the rank/grade of sergeant first class/E-7.

3.  She served in Germany from July 1984 to October 1987.  She was subsequently reassigned to the Department of the Army Staff in the Pentagon, then to Fairfax, VA, and ultimately to CSD-East, Alexandria, VA.

4.  On 5 October 1993, she requested early retirement as an exception to policy under the FY94 Early Retirement Program.  She indicated she had completed 15 years of active service and met the eligibility criteria established in the message pertaining to early retirement.  Her unit adjutant recommended approval.

5.  On 20 October 1993, she was notified that she was selected for a permanent change of station (PCS) assignment to the Special Security Group, Izmir, Turkey, reporting on or about 20 December 1993.  She was provided with the necessary and required forms and/or applications related to medical, dental, and passport readiness for her PCS assignment.

6.  On 26 October 1993, she was reprimanded by her company commander for unprofessional conduct in that she failed to contact him after having instructed her to do so and for failing to answer questions from her sergeant major.

7.  On 27 October 1993, her immediate commander suspended her from favorable personnel actions effective 27 October 1993 by reason of adverse action.

8.  On 27 October 1993, her immediate commander referred her to the Community Mental Health Clinic, Fort Belvoir, VA, for a mental status evaluation. 
The commander stated:

* the applicant's behavior had been unreasonable over the past 2 weeks
* she received reassignment instructions for Turkey and had known about it for 6 months but ignored it
* she made it clear that she had no intention of proceeding and indicated she did not desire to remain in the Army
* she stated she had "found God" and would not leave her church for anyone or anything
* she did not care about the Army or the command after she "found God"
* she exhibited behavior inconsistent with her behavior over the past 2 years
* the chaplain opined that although the applicant was sincere about her faith, she was anxious, argumentative, and was "ready to go off" as her reporting date got closer
* the chaplain also opined that she could harm herself, but the doctor denied any suicidal ideation

9.  On 28 October 1993, her immediate commander counseled her.  He provided an assessment of her situation and provided her with a forthright explanation of possible consequences of her actions.  The immediate commander stated she:

* was disruptive to the morale, good order, and discipline of the unit
* was apathetic toward the Army
* refused orders concerning her reassignment
* threatened to be absent without leave
* was a security risk who could not be trusted
* set a terrible example as a Soldier and leader

10.  On 23 November 1993, court-martial charges were preferred against her for:

* two specifications of failing to go at the time prescribed to her appointed place of duty
* one specification of disrespecting an NCO
* three specifications of willfully disobeying lawful orders

11.  In November 1993, she received a relief-for-cause NCOER that covered the rating period October 1993.  Her rater placed an "X" in the "No" blocks for 5 of 7 NCO values.  He also rated her as "Need Improvement" in 4 of 5 NCO responsibilities.  Her senior rater rated her overall performance and potential as "Poor."

12.  On 1 and 4 November 1993, she was counseled by her company commander regarding her upcoming reassignment to Turkey.

13.  Shortly after that, the convening authority dismissed the court-martial charges and returned the case to the appropriate commander for possible administrative separation.

14.  The NARSUM, dated 17 February 1994, states she was referred by her chain of command because of questions concerning her mental status.  She had exhibited unusual, inappropriate, and insubordinate behavior over the past few months.  The NARSUM also shows:

	a.  Her diagnosis was that of persecutory and grandiose-type delusional disorder, manifested by persistent non-bizarre delusions that existed for more than 1 month.  Impairment in daily functioning is minimal in this disorder; however, a common characteristic is that apparent normality of behavior when the delusional ideas are not being discussed or acted on.  Her social and marital functioning was significantly impaired.

	b.  The doctor opined that she did not meet retention standards of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, and should be referred to the Physical Disability Evaluation System (PDES).

15.  On 1 March 1994, an MEB convened at Fort Belvoir, VA, and after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was medically unfit due to having the medically-unacceptable condition of persecutory and grandiose-type delusional disorder, manifested by persistent non-bizarre delusions that have existed for more than 1 month.  The MEB recommended referral to a physical evaluation board (PEB). 
The DA Form 3947 contains the entry "Soldier refuse [sic] to review Medical Evaluation Board, refuse [sic] to write rebuttal, and refuse [sic] to sign."  The findings and recommendation were approved on 1 March 1994.

16.  A DA Form 199 (Physical Evaluation Board Proceedings) is not available for review with this case.  However, it appears a PEB convened and rated her condition.  It also appears the PEB recommended her separation with entitlement to severance pay if otherwise qualified.

17.  On 25 March 1994, PERSCOM (now known as the U.S. Army Human Resources Command) disapproved her request for early retirement.  The memorandum stated that requests for early retirement exceptions to policy were approved in cases of fully-documented extreme hardship to the Soldier or the family and that her request did not fit the criteria.

18.  In a message, dated 4 May 1994, Headquarters, Department of the Army, ordered her discharge under the provisions of paragraph 4-24b(3) of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement or Separation) with a disability rating of 10 percent effective 3 June 1994.

19.  She was honorably discharged on 3 June 1994 under the provisions of paragraph 4-24b(3) of Army Regulation 635-40 by reason of disability with entitlement to severance pay.  Her DD Form 214 shows she completed 15 years, 4 months, and 18 days of creditable active service.  This form also shows she received $48,247.20 in severance pay.

20.  She submitted:

	a.  multiple chronological records of medical care between November 1993 and March 1994, many related to her psychiatric/mental status;

	b.  VA letters, one of which, dated 2 September 1999, denied her service-connected disability compensation for claim of psychiatric disorder, including delusional disorder; and

21.  PERSCOM message, dated 2 September 1993, announced a correction to the FY94 Early Retirement Program.  The message identified the eligibility criteria, service dates, conditions of retirement, and the MOS's eligible for this program.  It stated for MOS 71L, the minimum number of years completed as of 31 August 1994 must be 18 years.

22.  Army Regulation 40-501 (Standards of Medical Fitness) 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 using the VA Schedule for Rating Disabilities.  Ratings can range from 0 to 100 percent, rising in increments of 10 percent.

23.  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 of less than 30 percent.

24.  Army Regulation 635-40 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.

25.  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.  The Army rates conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further 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 different disability ratings 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 applicant submitted an exception to policy request for early retirement based on the FY94 Early Retirement Program.  She had completed 15 years of active service at the time.  The program required a Soldier with her MOS to have at least 18 years of active service by 31 August 1994.  

2.  In March 1994, PERSCOM officials notified her of the disapproval and advised her that retirement requests submitted as an exception to policy were approved in cases of fully-documented extreme hardship to the Soldier or the family.  Her exception to policy request did not fit the criteria.

3.  Absent convincing independent and verifiable evidence to the contrary, it appears her request for early retirement was processed in accordance with applicable policies at the time.  There is neither an error nor an injustice.  Her exception to policy request for a 15-year retirement did not meet the criteria then and does not meet any criteria now.

4.  Meanwhile, the evidence of record shows the applicant exhibited certain behaviors that led her chain of command to question her judgment and refer her for a mental status evaluation.  It is presumed that competent military medical authorities rendered the diagnosis of persecutory and grandiose-type delusional disorder, manifested by persistent non-bizarre delusions that existed for more than 1 month and opined that she did not meet retention standards and should be referred to the PDES.

5.  She underwent an MEB which recommended her referral to a PEB.  The PEB, although not available for review, appears to have found her persecutory and grandiose-type delusional disorder prevented her from performing her military duties and determined she was physically unfit.

6.  The PEB was tasked to assess the degree of disability at the time of her discharge.  The PEB appears to have done so and rated her at 10-percent disabled.  Since this rating was less than 30 percent, by law she was only entitled to severance pay; she was not entitled to medical retirement.


7.  There are two important points involved in the applicant's case that require clarification.

	a.  One, the Army and the VA disability evaluation systems are independent of one another.  A diagnosis of a medical condition and/or a subsequent award or denial 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 or deny ratings because a medical condition related to service (service connected) affects the individual's civilian employability.  The VA has the responsibility and jurisdiction to recognize any changes in a condition over time by adjusting a disability rating.

	b.  Two, when identified, diagnosed, evaluated, and rated, a disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and can only be accomplished through the PDES.  Only those conditions that render a member unfit for continued military duty at the time of separation will be rated by the PEB.

8.  The applicant's physical disability evaluation was conducted in accordance with law and regulations.  There does not appear to be an error or an injustice in her case.  She has not submitted substantiating evidence or an argument that would show an error or injustice occurred.  In view of the circumstances, there is insufficient evidence to grant 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)                                         AR20120004107



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ABCMR Record of Proceedings (cont)                                         AR20120004107



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