IN THE CASE OF:	  	

		BOARD DATE:	  22 January 2015

		DOCKET NUMBER:  AR20140004972 


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, a review of his 1991 disability processing for the purpose of permanent retirement.

2.  The applicant states:

	a.  He was retired "on temporary disability and severance pay" and he had just come out of the hospital and was under medication.  He did not know he was signing his hard-work for retirement away; therefore, he paid the severance pay back in full for his regular E-6 pay.  Since then, he had been and continues to be a poor homeless person on the street.  He needs help.  If the country needed him tonight for battle, he would be ready.  He served in the Army and can present three General Officers to speak for him.  He wants his E-6 pay reinstated so that he can live as a retired Soldier and an honorable life.  

	b.  The injustice was that he was placed on the temporary disability retired list (TDRL) and he believes he continues to be on the TDRL.  He never received orders or an appointment to be placed on the permanent retired E-6 list.  As a matter of fact, they had lost his record and he happened to have a copy and sent it to them.  They had his name spelled wrong.  They used the middle initial of "G" when his middle initial is "L."  He has been asked to file a lawsuit due to the fact that he had a nervous breakdown in Fort Sill, OK, due to catching his wife with another Soldier.  He found himself doing things and seeing things he never dreamed of and he was put in the mental hospital.  They were preparing to go to war at the time and he fell off the back of a 5-ton truck.  He hit his head and it has impacted his life forever.  He can't keep a job due to his Bipolar Disorder and other disabilities.  

	c.  He does not think he has to go public with this.  He feels the Board can handle it and correct his records.  He was and continues to be a very good Soldier.  He served 12 years of his military career in West Germany and the rest in the United States.  He does not believe he was treated fairly.  He wants to be placed on the retired list in the grade of E-6 and he wants some back pay so he can buy a house and live the rest of his days on earth half-way comfortably.  That is all he requests.  

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty) 
* Letter dated 28 January 2014 from the Department of Veterans Affairs (VA)
* Data for Retired Pay
* Psychiatric evaluation 
* DA Form 199 (Physical Evaluation Board (PEB) Proceedings)
* TDRL retirement orders

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 20 November 1975 and he held multiple military occupational specialties.  He served through multiple reenlistments in a variety of stateside or overseas assignments, including Germany, and he attained the rank/grade of staff sergeant (SSG)/E-6 on 1 July 1981.  

3.  According to his narrative summary, on 10 October 1990, he was transferred from Fort Sill, OK due to increasingly bizarre behavior and acting out.  He claimed that the problems all began when two weeks earlier he discovered flying monkeys in his room.  He also claimed that no one paid attention to him.  He further related that he occasionally sees roosters and hens around him and that the roosters sometimes say things like they were going to kill him. 

	a.  In addition to a medical examination, he underwent a thorough psychiatric evaluation that led to a diagnosis of: 

* Axis I: Organic personality disorder, etiology unknown; biological and psychosocial; existed prior to service (EPTS)
* Axis II: Personality disorder, not otherwise specified
* Axis III: No diagnosis

   b.  He was discharged from the medical facility and recommended for consideration by a medical evaluation board (MEB). 

4.  On 12 December 1990, an MEB convened and, after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was diagnosed with the conditions below.  

* Organic personality syndrome, etiology unknown, disorder of which is manifested by his lack of stress tolerance, a tendency to become psychotic under stress, EPTS, and Bipolar Disorder
* Bipolar/Personality disorder, not otherwise specified with histrionic, narcissistic, and sociopathic traits

5.  The MEB recommended his referral to a PEB.  He agreed with the MEB's findings and recommendations and indicated he did not desire to continue on active duty.

6.  On 19 February 1991, an informal PEB convened and found the applicant's conditions prevented him from performing the duties required of his grade and military specialty and determined that he was physically unfit due to Bipolar Disorder manifested by bizarre behavior, visual and auditory hallucinations, and irritability and impulsivity.   

	a.  The PEB rated him under the VA Schedule for Rating Disabilities (VASRD) code 9206 (Bipolar Disorder) at 30 percent.  The PEB also considered his other condition that is listed on the MEB (organic personality syndrome, etiology unknown, manifested by uncooperative, sociopathic traits) but since it was an EPTS condition it was not compensable.  


	b.  The PEB recommended a combined disability rating of 30 percent and the applicant be placed on the TDRL with reexamination in February 1992.  

	c.  Throughout the disability process, he appears to have been counseled by a PEB Liaison Officer (PEBLO) and informed of his rights at each step of the process.  Subsequent to this counseling, and after consulting with counsel, on 20 February 1991, the applicant concurred with the findings and recommendations of the PEB and waived his right to formal hearing of his case.  

7.  On 28 February 1991, the U.S. Total Army Personnel Command, Alexandria, VA, published Orders D41-4 retiring him on 21 March 1991 and placing him on the TDRL in the rank of SSG on 22 March 1991 with a 30 percent disability rating.  It is also noted that these orders were amended/endorsed to reflect the correct middle initial. 

8.  He was honorably retired on 21 March 1991 under the provisions of Title 10, U.S. Code, section 1202, and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), by reason of temporary disability, and on 22 March 1991, he was placed on the TDRL.  The DD Form 214 he was issued shows he completed a total of 15 years, 4 months, and 2 days of active service. 

9.  On 27 February 1992, he underwent a TDRL examination.  His narrative summary shows his diagnosis as follows: 

* Axis I: Bipolar Disorder, mixed, in partial remission; he is currently showing no symptoms but describes symptoms within the past 6 months 
* Axis II: Histrionic, narcissistic, and sociopathic traits, by history (no evidence was seen on this evaluation of personality disorder)
* Axis III: No diagnosis
* Axis IV: Psychosocial stressors (TDRL, job, problems from illness)
* Axis V: Current Global Assessment of Functioning (GAF) is 62; Highest GAF in the last year was 62 

10.  On 12 March 1992, an informal TDRL PEB convened and found the applicant remained medically unfit for Bipolar Disorder, in partial remission.  

	a.  The PEB rated him under VASRD code 9206 at 10 percent and recommended a combined disability rating of 10 percent and separation with entitlement to severance pay if otherwise qualified. 

	b.  Subsequent to this counseling, and after consulting with counsel, the applicant concurred with the findings and recommendations of the PEB and waived his right to formal hearing of his case.
11.  On 15 July 1992, the U.S. Total Army Personnel Command, published Orders D138-9 removing him from the TDRL and discharging him from the Army with a 10 percent disability rating, effective 15 July 1992.

12.  He provides a letter informing him that, in accordance with their laws, the VA has withheld in full the disability severance pay and he should contact the VA if he has any questions. 

13.  Army Regulation 635-40 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.  

14.  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 VASRD.  Ratings can range from 0 percent to 100 percent rising in increments of 10 percent.

15.  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 at less than 30 percent.

DISCUSSION AND CONCLUSIONS:

1.  The applicant sustained a mental health condition that warranted his entrance into the PDES.  He underwent an MEB which recommended his referral to a PEB.  He agreed with the MEB's findings and recommendations and indicated he did not desire to continue on active duty.  The informal PEB found his medical condition(s) prevented him from reasonably performing the duties required of his grade and military specialty.

2.  An informal PEB considered his conditions and determined he was physically unfit for further military service.  The PEB rated his Bipolar Disorder and recommended a 30 percent disability rating.  He agreed with the findings and recommendation.  He was placed on the TDRL in March 1991, in the rank/grade of SSG/E-6.  

3.  In February 1992, he underwent a TDRL examination.  His diagnosis was that of Bipolar Disorder, mixed, in partial remission.  The informal TDRL PEB rated his conditions at 10 percent and recommended his separation with entitlement to severance pay.  He again concurred.  Accordingly, he was removed from the TDRL and discharged in July 1992, again in the rank/grade of SSG/E-6. 

4.  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.  The applicant was initially rated at 30 percent and later rated at 10 percent when his condition went into remission.   Since this rating was less than 30 percent, by law he was only entitled to severance pay.  He provides no medical evidence, 22 years later, to support a higher rating for any condition.

5.  The evidence shows his physical disability evaluation was conducted in accordance with law and regulations and the applicant exercised his rights and options with respect to demanding a formal hearing of his case, representation by counsel, and the submission of any medical evidence.  There does not appear to be an error or an injustice in his case.  He has not submitted substantiating evidence or an argument that would show an error or injustice occurred in his case.

6.  Therefore, after a comprehensive review of the evidence of record and the argument provided by the applicant, there is insufficient evidentiary basis for granting the applicant's 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)                                         AR20140004972



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ABCMR Record of Proceedings (cont)                                         AR20140004972



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