IN THE CASE OF:	   

		BOARD DATE:	  5 June 2014

		DOCKET NUMBER:  AR20130017894 


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, in effect, that block 28 (Narrative Reason for Separation) on his DD Form 214 be changed from "Physical Condition, Not A Disability" due to his receipt of Department of Veterans Affairs (VA) disability benefits.

2.  The applicant states he was granted VA disability benefits for a preexisting condition based on aggravation.  He believes the correction is necessary to receive Post 9/11 G.I. benefits.  

3.  The applicant provides a copy of his 6 January 2010 VA monetary benefits increase letter.

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 enlisted in the Regular Army on 8 May 2003.  There is no evidence he completed training or was awarded a military occupational specialty.

3.  The applicant's Official Military Personnel File (OMPF) does not contain any documentation related to his discharge processing or any medical records.

4.  On 8 January 2004, he was honorably discharged under Army Regulation 635-200, paragraph 5-17 with a narrative reason of "Physical Condition, Not A Disability."  He had 8 months and 1 day of creditable service.

5.  The VA letter shows that effective 1 February 2009 the applicant was awarded disability compensation (VA service connection) for bipolar mood disorder and panic disorder at a 50 percent disability level.  On 1 December 2009, his disability level was increased to 100 percent.  The letter contains no information related to his conditions except for the percentage and monetary levels. 

6.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 5 sets forth the basic authority for separation of enlisted personnel for separation for Convenience of the Government.  

   a.  Soldiers who are unfit by reason of physical disability neither incurred nor aggravated during any period of service while entitled to basic pay, or as the proximate result of performing active duty or inactive duty training, but which effects duty performance, will be separated for physical disability without entitlement to benefits. 
   
   b.  When a commander determines that a Soldier has a physical or mental condition that potentially interferes with assignment to or performance of duty, the commander will refer the Soldier for a medical examination and/or mental status evaluation in accordance with Army Regulation 40-501 (Standards of Medical Fitness).

   c.  Paragraph 5-17 pertains to separations for other designated physical or mental conditions not amounting to disability under Army Regulation 635-40 that potentially interfere with assignment to or performance of duty.  Such conditions may include, but are not limited to, chronic airsickness or seasickness, enuresis, sleepwalking, dyslexia, severe nightmares, claustrophobia, and other disorders manifesting disturbances of perception, thinking, emotional control or behavior sufficiently severe that the Soldier's ability to effectively perform military duties is significantly impaired.


7.  Army Regulation 40-501 states enlisted Soldiers identified within the first 6 months of active duty with a condition that existed prior to service that does not meet the standards of chapter 2 may be separated following an evaluation by an Entrance Physical Standards Board, in accordance with Army Regulation 
635–200, chapter 5.

8.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides guidance and policies for physical evaluation for retention, retirement and separation.  It provides the following:

   a.  Paragraph B-10 states hereditary, congenital and other conditions that existed prior to service (EPTS) frequently become unfitting through natural progression and should not be assigned a disability rating unless service aggravated complications are clearly documented or unless a Soldier has been permitted to continue on active duty after such a condition, known to be progressive, was diagnosed or should have been diagnosed.
   
   b.  Paragraph B-11 states if the disability at the time of evaluation is not greater than the EPTS, the condition cannot be considered service aggravated and will be listed as not ratable.
   
9.  Army Regulation 15-185 (Army Board for Correction of Military Records [ABCMR]), states the ABCMR begins its consideration of each case with the presumption of administrative regularity.  It will decide cases on the evidence of record and it is not an investigative body.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  Based on the available evidence, it appears the applicant was discharged for a preexisting condition mood disorder that was not shown to have been aggravated by his limited period of service.  

2.  He has not provided and record does not contain any evidence that the VA's granting of benefits five years after his discharge demonstrates that his EPTS condition was aggravated by his service.  

3.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The type and character of the discharge is commensurate with his overall record.


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)                                         AR20130017894





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ABCMR Record of Proceedings (cont)                                         AR20130017894



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