IN THE CASE OF:	  

		BOARD DATE:	  13 October 2014

		DOCKET NUMBER:  AR20130022261 


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 records to show he was medically discharged.

2.  The applicant states, in effect:

	a.  He should have received a medical discharge.  At the time of his discharge, the battalion and medical team were aware of his mental illness based on his reporting and informing them of serious bouts with stress, depression, and arguing to the point of rage.  He suffered from undiagnosed intermittent explosive disorder and post-traumatic stress disorder (PTSD).

	b.  Since his discharge, he has been homeless, lost jobs, engaged in substance abuse, had difficulty with close relationships, and served time in prison for assaulting Federal officials.

	c.  His medical documentation shows he suffered from mental illness that manifested during his military service.  He was sexually assaulted during a field training exercise in basic training.  After that incident he wanted to get out of the military.  He purposely failed advanced individual training, but a first sergeant reassigned him to another course and he failed to get out of the military.




	d.  His service medical record shows a doctor suggested that he be evaluated for an antidepressant prescription and pharmacotherapy.  He never received any medication because his unit deployed to Southwest Asia.  Soon after arriving in country, he pointed a loaded weapon at the assistant section chief.  His weapon was taken from him and he was reassigned to another unit.  His unit was extremely aware of his mental condition and knew he should be receiving treatment.  He was separated with a general discharge.

	e.  His discharge is unjust and he should have been receiving some form of treatment prior to his deployment to the Gulf War.

	f.  Since leaving the service in 1992, he physically assaulted a number of people around the country for no reason whatsoever.  Since he worked in law enforcement for the county and Federal government, he got away with it.  He didn't know he had a mental problem until recently when he was sent to prison for assaulting two Federal officials.

	g.  The Department of Veterans Affairs (VA) diagnosed him with intermittent explosive disorder and PTSD.

3.  The applicant provides numerous service and VA 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 enlisted in the Regular Army on 23 May 1989 for a period of 4 years.  He completed his training and was awarded military occupational specialty 13B (cannon crewman).




3.  Between June 1990 and May 1992, he was counseled for:

* failure to pay debt
* failure to repair
* revoked pass privileges
* failure to obey a lawful order
* being disrespectful toward a noncommissioned officer (NCO) (twice), failure to follow instructions, and disobedience of a lawful order
* displaying a bad attitude
* failure to obey a lawful order

4.  On 17 July 1990, nonjudicial punishment (NJP) was imposed against him for disobeying a lawful order.

5.  He provided his service medical records which show:

	a.  On 24 July 1990, he was treated for a headache that had lasted for 3 weeks.  The applicant reported his headache got worse when he got mad.  The doctor recommended his referral to the psychiatric section.

	b.  On 25 July 1990, he was seen by the mental health facility per his command's request and diagnosed with an occupational problem.  The doctor recommended standard medication for tension headaches and indicated antidepressants were not the first-line of medication for tension headaches.  The doctor also determined he did not have a history of a psychiatric disorder, was not suicidal, and had no criteria associated with a major affective disorder.

6.  He served in Southwest Asia from 12 October 1990 to 10 June 1991.

7.  On 22 August 1991, NJP was imposed against him for being absent without leave for 2 days.

8.  On 29 May 1992, NJP was imposed against him for treating a sergeant with contempt.

9.  On 8 June 1992, he underwent a mental status evaluation which determined he had the mental capacity to understand and participate in the separation proceedings.  The remarks section states, "No homicidal or suicidal thoughts."

10.  On 24 June 1992, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12a, for misconduct (minor disciplinary infractions).

11.  On 29 June 1992, he consulted with counsel, waived his rights (including his right to appear before an administrative separation board), and acknowledged he might encounter substantial prejudice in civilian life if a general discharge were issued to him.  He elected to submit a statement in his own behalf.  In summary, he stated:

* he was receiving counseling statements because the sergeant hated the fact that he knew his job better than the specialist fours in his section
* his sergeant was racist

12.  On 13 July 1992, the separation authority approved the recommendation for separation and directed the issuance of a general discharge.

13.  On 12 August 1992, he was discharged accordingly.  He completed 3 years, 2 months, and 20 days of creditable active service.

14.  There is no evidence of record showing he was diagnosed with any unfitting medical condition prior to his discharge on 12 August 1992.

15.  He provided a VA Progress Note, dated 8 November 2012, which shows he was diagnosed with intermittent explosive disorder.

16.  He also provided a VA Rating Decision, dated 25 June 2014, which shows he was granted service connection for PTSD with an evaluation of 70 percent.

17.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states the mere presence of impairment does not, in 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 Soldier reasonably may be expected to perform because of his or her office, grade, or rank.  Disability compensation is not an entitlement acquired by reason of a service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in the service.  When a Soldier is being processed for separation for reasons other than physical disability, continued performance of assigned duties commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement indicates a Soldier is fit.

18.  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 or her office, rank, grade, or rating because of disability incurred while entitled to basic pay.

19.  Title 38, U.S. Code, sections 310 and 331, permit the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should have been medically discharged.  However, there is no evidence showing he was diagnosed with an unfitting medical condition prior to his administrative discharge in 1992.  There also is no evidence showing he could not perform his duties while serving on active duty.  Therefore, there is insufficient evidence to show a medical discharge was warranted.

2.  The VA granted him a service-connected disability rating of 70 percent for PTSD.  However, an award of a VA rating does not establish entitlement to medical retirement or separation from the Army.  Operating under different laws and its own policies and regulations, the VA, which has neither the authority nor the responsibility for determining medical unfitness for military service, awards ratings because a medical condition is related to service (service connected) and affects the individual's civilian employability.  Furthermore, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

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)                                         AR20130022261



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ABCMR Record of Proceedings (cont)                                         AR20130022261



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