IN THE CASE OF:	  

		BOARD DATE:	  21 November 2013

		DOCKET NUMBER:  AR20130005922 


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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 19 March 1985 to show he was retired by reason of disability vice honorably discharged.

2.  The applicant states:

	a.  On 12 April 1982, while serving in the Army as a noncommissioned officer (NCO), he was injured in an accident on the autobahn when his vehicle was hit by a German truck driver during a unit convoy from Wildflecken, Germany, to their training site in Hohenfels, Germany.  He sustained a severe head injury, left scapula (shoulder blade) injury, left rib fracture, and abdomen trauma.  While he was hospitalized, he was seen by several psychiatrists and placed into a mental ward for observation.  He was told the head injury he sustained could possibly cause him problems later on in his life.

	b.  Upon his release from the hospital, and still serving as an NCO, he was immediately reclassified to a different military occupational specialty (MOS).  He worked in the Central Issue Facility until he received his orders to leave Germany.  Even though he suffered from continuous headaches and back and shoulder problems, he was reassigned back to his original MOS.  He followed up with his injury by going to sick call as prescribed by his doctor in Germany.  It didn't bother him that he was back in his original MOS; what bothered him was his ability to function as the NCO that he had been.

	c.  He started to notice his ability to remember things was getting harder and his personality was changing.  After being told he failed the NCO equivalent test, the test that would increase his test scores by 10 points, he knew the head injury he had sustained was the reason he couldn't function as the Solder that he had been.  He loved the military, and no matter how much he was teased about being in the Army, he was a career Soldier. 

	d.  With his military career coming to an end, he applied the knowledge he gained from the military to his civilian life.  When he was out-processing and was leaving the hospital, the doctor who cleared him asked him a few questions that didn't pertain to his accident or his symptoms.  

	e.  In 1987 or early 1988, he started feeling different from what he usually felt but he could not explain it.  He was still suffering from the headaches from the head injury he sustained while in the Army but this was different; he found out later that he was suffering from depression.

	f.  He didn't want to do anything and wanted to be left alone.  He didn't want to work, be around anyone, or talk to anyone.  He didn't really care if he lived another day or not.  This lasted for a few days and then he was okay.  He felt he was working too much and needed rest.  The rest of the year, he was having a lot of headaches, pain in his left shoulder, knee, and ankles.  He managed to overcome all his body aches and continued to work.

	g.  Each year his symptoms returned they got harder and harder to control.  He saw several doctors but things did not get better.  He went through two marriages and many jobs but he did what it took to keep himself stable and balanced.  In 1999, after becoming suicidal, he was hospitalized for about a month and he was treated by a psychiatrist.  He was diagnosed as having a chemical imbalance, or bipolar disorder, caused by the head injury he sustained in the Army. 

	h.  For 16 years he went through pure hell not knowing what was wrong with him.  At one time, he thought he was going crazy as he would hear voices and see things that he couldn't explain.  He cannot believe he was released from the Army without any follow-up or concern for the injury he sustained while in the Army.  He also learned that if he had been medically retired from the Army, he wouldn't have had to experience the hell he went through.  As the result of someone's incompetence, he went through several marriages, numerous jobs, homelessness, being locked up in jail, and being tagged as a crazy person.

	i.  It has taken him a long time to straighten out and get his life back together.  He did so with the help of the Lord and his new spouse.  He believes the Army should compensate him for those 16 years by correcting his DD Form 214 to show he was retired by reason of disability vice honorably discharged.

3.  The applicant provides his DD Form 214, a letter, and DA Form 3647 (Inpatient Treatment Record Cover Sheet).

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.  Having had prior active service, the applicant enlisted in the Regular Army (RA) on 26 October 1978 and he held MOS 12B (Combat Engineer).  On 13 November 1979, he was promoted to the rank/grade of sergeant (SGT)/E-5.  On 12 December 1980, he was assigned to Company C, 54th Engineer Battalion, Germany.

3.  The applicant provides a DA Form 3647, dated 17 April 1982, wherein it shows he was admitted to the U.S. Army Medical Department Activity hospital, Wurzburg, Germany.  This form stated he was the driver of a truck which went off the road caused by a German truck at 0330 hours on 12 April 1982 while he (the applicant) was on duty.  This form showed he was hospitalized for 1 day and he was returned to duty on 17 April 1982. 

4.  The second page of this form stated there were no visible external injuries and the pupils of his eyes were normal.  When he lay on his abdomen, he complained of pain of the scapula.  It further stated because of the tension of the abdomen a lavage was done; the fluid was clear and the drainage was removed the following day.  Erythrocytes were found in the urine sediment and an x-ray of the kidney and ureter on 14 April 1982 showed no evidence of disease or injury.  The concussion of the brain was light (emphasis added).

5.  The examining physician diagnosed him with a concussion of the brain, possible fracture of the left scapula, fracture of the left 1st rib, and abdomen trauma.  He prescribed bed rest, pulse and circulation control, and parenteral nutrition.

6.  His records contain a:

   a.  DA Form 2166-2 (Enlisted Evaluation Report (EER)) covering the 
12-month rating period from February 1982 through January 1983.  This EER shows he was serving as a squad leader in MOS 12B in Company C, 54th Engineer Battalion, Germany, throughout the rating period.  This EER does not show that he took the Army Physical Fitness Test (APFT) during this rating period.  It stated, in part, he had contributed significantly to the effectiveness of the platoon.

   b.  EER covering the 6-month rating period from February through July 1983.  This EER shows he was serving as a squad leader in MOS 12B in Company C, 54th Engineer Battalion, Germany, throughout the rating period.  This EER shows he took and passed the APFT in March 1983.  It stated, in part, he was a bright, upcoming NCO, weak in leadership, and had a positive can-do attitude.

   c.  EER covering the 4-month rating period from August through November 1983.  This EER shows he was serving as a squad leader in MOS 12B in Company C, 54th Engineer Battalion, Germany, throughout the rating period.  This EER shows he took and passed the APFT in November 1983.  It stated, in part, he was a very energetic NCO, one of the most physically fit men in the company, and he scored the highest in the platoon on the recent APFT (emphasis added).

7.  In January 1984, he was reassigned to Company C, 58th Engineer Battalion, Fort Polk, LA.  His records contain an:

   a.  EER covering the 12-month rating period from December 1983 to August 1984.  This EER shows he was rated for the 9 months that he had been serving as a squad leader in MOS 12B in Company C, 58th Engineer Battalion.  This EER shows he took and passed the APFT in April 1984.  It stated, in part, he needed to take more initiative in taking on tasks without being supervised. 

   b.  EER covering the 6-month rating period from September 1984 to February 1985.  This EER shows he was serving as a squad leader in MOS 12B in Company C, 58th Engineer Battalion, throughout the rating period.  This EER shows he took and passed the APFT in January 1985.  It stated, in part, he had performed all of his duties in an exemplary and professional manner.

8.  He was honorably discharged from active duty on 19 March 1985 in the rank of SGT by reason of completion of required service.  He completed 6 years, 4 months, and 24 days of creditable active service during this period of service.

9.  Item 27 (Reenlistment (RE) Code) of the DD Form 214 he was issued for this period of service contains the entry RE-1 meaning he was fully eligible to reenlist.

10.  On 22 November 1985, he enlisted in the U.S. Army Reserve (USAR) in the rank of SGT for a period of 1 year.  On 5 October 1986, he reenlisted in the USAR for a period of 6 years.

11.  Orders D-10-249984, dated 1 October 1992, issued by the USAR Personnel Center, St. Louis, MO, honorably discharged him from the USAR effective 4 October 1992. 

12.  His available records are void of any evidence that shows he was ever diagnosed with any injury/condition while serving in the RA that resulted in injuries that prevented him from performing his duties and would require referral to a medical evaluation board (MEB).

13.  There is no evidence in the available records that shows he ever received a permanent profile rating of "3" that would require referral to an MEB.

14.  The applicant provides a letter, dated 16 June 2011, issued by the Department of Veterans Affairs (VA), Columbia, SC, wherein it stated he was rated permanently and totally disabled effective 5 January 2005.

15.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states MEB's/physical evaluation boards 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 qualification for retention based on the criteria in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.

16.  Army Regulation 635-40 further states the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature/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.
17.  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 VA, which has neither the authority, nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability.  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.  The VA may rate any service-connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his 19 March 1985 honorable discharge should be changed to a medical retirement because he suffered a severe head injury on 12 April 1982 while serving on active duty that caused him permanent damage.

2.  Although he may have been involved in an automobile accident on 12 April 1982, the DA Form 3647 that he provided showed he was diagnosed with a light concussion at that time.  A diagnosis of bipolar disorder in 1999 does not signify this was a result of injuries incurred in an accident over 17 years prior.  

3.  More importantly, the evidence of record confirms he continued to serve in MOS 12B and his EERs from February 1983 through March 1985 show he consistently took and passed the APFT.  His EER for the rating period August through November 1983 stated he was one of the most physically fit men in the company and scored the highest in the platoon on the November 1983 APFT.

4.  The evidence of record does not show and the applicant has not provided any evidence that shows he was diagnosed with or treated for any injury/condition while serving on active duty that prevented him from performing his duties and would require referral to an MEB.  There is no evidence in the available records that shows he ever received a permanent profile rating of "3" that would require referral to an MEB. 

5.  In addition, when he was honorably discharged on 19 March 1985, he was fully eligible to reenlist; there is no evidence that shows he was ever found to be medically unfit while serving on active duty.  In November 1985, he enlisted in the USAR and served in the USAR until his honorable discharge in October 1992.

6.  A disability decision rendered by another agency does not establish an error on the part of the Army.  Operating under different laws and its own policies, the VA does not have the authority or the responsibility for determining a Soldier's fitness to perform military duties.  The VA may award ratings because of a service-connected disability that was incurred in or aggravated by active military service that affects the individual's civilian employability.

7.  In view of the foregoing, 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)                                         AR20130005922





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ABCMR Record of Proceedings (cont)                                         AR20130005922



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