IN THE CASE OF:	  

		BOARD DATE:	    5 December 2013

		DOCKET NUMBER:  AR20130004391 


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 discharge.

2.  The applicant states, in effect, he was sick in the service and had two nervous breakdowns while on active duty.

3.  The applicant provides 47 pages of medical and dental 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.  After having prior periods of military service in the U.S. Marine Corps, Army National Guard, and U.S. Army Reserve (USAR), the applicant reenlisted in the USAR on 27 April 1990 for a 6-year period.  He was assigned to the 520th Maintenance Battalion, St. Louis, MO, a troop program unit of the USAR. 

3.  On 19 June 1992, the applicant's unit administrator submitted a request, with the applicant's consent, to the Department of Veterans Affairs (VA) for his disability status and medical summary.  The request also indicated the applicant was not attending his Reserve meetings, he was drawing VA pay (disability), and that he wanted to be discharged from the Reserve.  The VA was advised that:

* the applicant's organization could not excuse or process him out of the Reserve without proper documentation
* he could not receive payment from both the VA and Army Reserve

4.  Records show the VA received the request on 8 July 1992.  On 16 July 1992, the VA provided the applicant's unit a copy of his VA rating decision.  The rating decision, dated 24 January 1992, shows:

* on 30 October 1991, the applicant submitted a claim and his examination was completed on 4 December 1991
* he was diagnosed with active paranoid schizophrenia and he was hallucinating during his examination process

5.  A Social Security Administration Form 2708, dated 20 October 1992, shows the applicant was approved for disability benefits.

6.  On 4 November 1992, a second request was submitted for the applicant's VA rating.

7.  On 9 November 1992, a medical review assistance request was submitted to Headquarters, 102nd U.S. Army Command (ARCOM) Command Surgeon, St. Louis, MO.  The request also shows a handwritten note indicating:

* Soldier says VA told him not to attend drills
* Soldier draws $800 per month from the VA and Social Security disabilities

8.  On 11 November 1992, the 102nd ARCOM Command Surgeon provided a medical review which shows the applicant:

* had not attended inactive duty training (IDT) since June 1992
* was approved for Social Security disability
* was diagnosed with active paranoid schizophrenia with active hallucinations
* was receiving $800 per month from the VA
* met the criteria of having a psychotic condition with gross impairment in reality testing, resulting in interference with duty or social adjustment, a condition which rendered him unfit for further military service

9.  On 27 February 1993, the applicant was notified by certified mail of his immediate commander's intent to initiate separation action against him in accordance with Army Regulation 135-178 (Army National Guard and Army Reserve Enlisted Administrative Separations), chapter 4, for other designated physical or mental conditions.  The commander recommended the issuance of an honorable discharge.  On 16 March 1993, the certified mail was returned to the sender.

10.  A Standard Form 88 (SF 88) (Report of Medical Examination), dated 5 December 1993, shows the applicant was found not qualified for retention in the USAR. 

11.  A Standard Form 93 (SF 93) (Report of Medical History), dated 5 December 1993, shows the applicant was under VA care for a "mental [illegible word]."

12.  On 14 December 1993, a request for the applicant's discharge was submitted by his battalion commander.  The justification used was active paranoid schizophrenia with active hallucinations.

13.  On 24 February 1994, a request for an up-to-date medical review of the applicant's condition was submitted by the 102nd ARCOM Command Surgeon.

14.  On 7 October 1994, the applicant's commander submitted a medical review assistance request.  The request shows:

* the applicant had not attended IDT training since June 1992
* the applicant was under VA care and had an approved Social Security disability claim
* his medical examination was received at the unit on 26 September 1994
* the applicant did not complete his medical survey as instructed in December prior to departing from the medical examination station
* he was advised his SF 88 and SF 93 would not be released to his unit until the medical survey was completed

15.  On 17 October 1994, the 102nd ARCOM Surgeon recommended the applicant be found unfit for further military service due to medical reasons.

16.  On 24 February 1995, the Deputy Chief of Staff, Personnel, Headquarters, 102nd ARCOM, St Louis, MO, directed the applicant's separation action under the provisions of Army Regulation 135-178, chapter 12, paragraph 12-1.

17.  On 14 March 1995, the applicant was advised of his unfitting condition and of his option to request a waiver for retention in the USAR.  The applicant requested a waiver and elected discharge in the event his waiver was denied.

18.  Orders Number 96-082-073, issued by Headquarters, U.S. Army Reserve Command, Atlanta, GA, dated 22 March 1996, honorably discharged the applicant from the USAR effective 22 March 1996.

19.  His Army Reserve Personnel Command (ARPC) Form 249-E (Chronological Statement of Retirement Points) shows he completed 12 years, 11 months, and 29 days of qualifying service for non-regular retirement. 

20.  Army Regulation 135-178 prescribes policies and procedures for the separation of USAR enlisted Soldiers.  Chapter 12 of this regulation establishes policy and prescribes procedures for separating members for other reasons.  Paragraph 12-1 (medically unfit for retention) provides that separation will be accomplished by separation authorities when it has been determined that an enlisted Soldier is no longer qualified for retention by reason of medical unfitness.  Soldiers separated under this chapter will be awarded a character of service of honorable or under honorable conditions, unless an uncharacterized description of service is required.

21.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (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.  Under the laws governing the Army PDES, Soldiers who sustain or aggravate physically unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and/or severance pay benefits:

* the disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty for training
* the disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence


22.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his/her office, rank, grade or rating because of a disability incurred while entitled to basic pay.

DISCUSSION AND CONCLUSIONS:

1.  None of the applicant's medical records are available for review with this case. However, he provides several medical and dental records that show he suffered a medical illness or injury that was diagnosed by the VA and determined it was service-connected.  His unit requested the VA rating decision and determined the condition he had did not meet retention standards.  As such, separation action was initiated against him for this condition.

2.  He was notified and advised of his rights.  At the time of the applicant's separation, when a member of the Reserve Component was found unfit for retention in the USAR, the member could be honorably discharged, transferred to the Retired Reserve (if qualified), request a waiver for retention, or if the illness/injury was incurred on active duty, while the member is entitled to basic pay, the member could be referred to the PDES for disability processing.  

3.  Here, there is insufficient evidence in the form of an approved line of duty determination that shows the applicant's condition had been incurred or aggravated while he was entitled to basic pay or as the proximate cause of performing active duty or inactive duty for training.  The available evidence he provides shows the condition was diagnosed by the VA.

4.  The Army and the VA disability evaluation systems are independent of one another.  A diagnosis of a medical condition and/or a subsequent award of a rating by another agency 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 a medical condition is related to service (service-connected) and 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.

5.  Since the applicant’s service medical records are not available and since he provides insufficient evidence to show he was unfit for retention in the USAR for a condition that was incurred in line of duty while entitled to basic pay, 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)                                         AR20130004391



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ABCMR Record of Proceedings (cont)                                         AR20130004391



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