IN THE CASE OF:  	  

		BOARD DATE:  16 December 2014	  

		DOCKET NUMBER:  AR20140008432 


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, correction of his record to show he was determined to be medically unfit by the Physical Disability Evaluation System (PDES) and retired by reason of physical disability.

2.  The applicant states his compensation and pension examination states he was mentally ill within one year of his separation from service and that the condition was present while he was on active duty.

3.  The applicant provides several pages of his service and post-service medical records, progress notes, and documents pertaining to his compensation and pension examination.

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 29 November 1977.  He completed training and he was awarded military occupational specialty 17K (Ground Surveillance Radar Crewman).  The applicant was subsequently assigned to Fort Hood, TX.

3.  The evidence shows on 5 August 1979, while stationed at Fort Hood, TX, the applicant unlawfully entered the room of a noncommissioned officer and attempted to steal a stereo and cassette deck.  The applicant was subsequently charged and found guilty by a special court-martial of violating Articles 80 and 130 of the Uniform Code of Military Justice.  He was reduced to the rank/grade of private/E-1, forfeited $279.00 pay per month for 6 months, and he was to be confined at hard labor for 6 months.  

4.  On 13 August 1979, the applicant presented at the Community Mental Health Activity with nervous anxiety.  He was treated with supportive therapy and he was recommended to return to the clinic for a follow-up appointment on
22 August 1979.

5.  On 6 September 1979, the applicant was transferred to the U.S. Army Retraining Brigade, Fort Riley, KS.  On 7 November 1979, he was reassigned to the 7th Military Intelligence Company, Fort Ord, CA.

6.  The applicant was subsequently promoted to the rank/grade of private/E-2 on 27 February 1980 and to the rank/grade of private first class (PFC)/E-3 on
20 June 1980.

7.  On 19 December 1980, the applicant was released from active duty under honorable conditions upon the completion of his required service, in the rank/grade of PFC/E-3.  He was transferred to the U.S. Army Reserve Control Group (Reinforcement).  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 2 years, 11 months, and 21 days of creditable active service with lost time for the period 23 August to 13 September 1979.

8.  The applicant provides limited copies of his service and post-service medical records and miscellaneous correspondence; however, there is insufficient evidence in the available service record which shows he sustained a disabling medical condition or he was issued a permanent physical profile while on active duty.  




9.  The applicant provides:

   a.  Medical Record Progress Notes, dated 18 March 1986, which state the applicant was diagnosed with depression and suicidal ideation.

   b.  History Physical Examination and Progress Notes, University of Alabama at Birmingham, dated 20 October 1993, which show he was diagnosed with paranoid schizophrenia, polysubstance abuse, and a probable personality disorder.
   
   c.  18 pages of Progress Notes from a compensation and pension examination, dated 10 February 2010.  A clinical psychologist opined, "the veteran began to abuse alcohol and drugs heavily while stationed in California and continued to do so after discharge from the service.  This is typical in individuals with post-traumatic stress disorder (PTSD) and psychotic illness as they attempt to medicate symptoms with substance abuse.  His history of substance abuse is considered secondary to both PTSD and schizophrenia.  He has not been able to maintain gainful employment since discharge.  Therefore, the opinion is that his psychiatric condition was at least as likely as not manifested to a compensable degree within one year of separation from service."

10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the 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 office, grade, rank, or rating.  It provides for Medical Evaluation Boards (MEBs) which 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 qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness).  Disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  This regulation also states the following:

	a.  Paragraph 3-1 provides that 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 and 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 he or she can be medically retired or separated.
	b.  Paragraph 3-2b(2) states that when a member is being processed for separation for reasons other than physical disability (e.g., retirement, resignation, reduction in force, relief from active duty, administrative separation, discharge, etc.) his continued performance of duty creates a presumption that the member is fit for duty.  Except for a member who was previously found unfit and retained in a limited assignment duty status in accordance with chapter 6 of this regulation, such a member should not be referred to the PDES unless his or her physical defects raise substantial doubt that he or she is fit to continue to perform the duties of his or her office, grade, rank, or rating.

	c.  Paragraph 3-2b(2)(a) and 3-2b(2)(b) state that when a member is being processed for separation for reasons other than physical disability, the presumption of fitness may be overcome if the evidence establishes that the member, in fact, was physically unable to adequately perform the duties of his or her office, grade, rank, or rating even though he or she was improperly retained in that office, grade, rank, or rating for a period of time and/or acute, grave illness or injury or other deterioration of physical condition that occurred immediately prior to or coincidentally with the member's separation for reasons other than physical disability rendered him or her unfit for further duty.

	d.  Paragraph 3-5 states the percentage assigned to a medical defect or condition is the disability rating.  A rating is not assigned until the Physical Evaluation Board determines the Soldier is physically unfit for duty.  Ratings are assigned from the Department of Veterans Affairs (VA) Schedule for Rating Disabilities (VASRD).  The fact that a Soldier has a condition listed in the VASRD does not equate to a finding of physical unfitness.  An unfitting, or ratable condition, is one which renders the Soldier unable to perform the duties of their office, grade, rank, or rating in such a way as to reasonably fulfill the purpose of their employment on active duty.  There is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying.  Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.

11.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Chapter 3 gives the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required for the individual in paragraph 3-2, below.  These medical conditions and physical defects, individually or in combination:

* significantly limit or interfere with the Soldier's performance of duties
* may compromise or aggravate the Soldier's health or well-being if the Soldier remains in the military; this may involve dependence on certain medications, appliances, severe dietary restrictions, frequent special treatments, or a requirement for frequent clinical monitoring
* may compromise the health or well-being of other Soldiers
* may prejudice the best interests of the government if the individuals were to remain in the military service

12.  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 less than 30 percent.

13.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher VA rating does not establish an error or injustice on the part of the Army.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The VA does not have authority or responsibility for determining physical fitness for military service.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  As a result, the VA, operating under different policies, may award a disability rating where the Army did not find the member to be unfit to perform his duties.  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. 

14.  Army Regulation 15-185 (ABCMR), the regulation under which this Board operates, states the ABCMR begins its consideration of each case with the presumption of administrative regularity and that the applicant has the burden of proving an error or injustice by a preponderance of the evidence.
  
DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for correction of his record to show he was determined to be unfit by the PDES and retired by reason of physical disability has been carefully considered; however, it was determined that there is insufficient evidence to support this request.

2.  The applicant's service medical records were not available for the Board's review. However, there is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial creditable evidence to rebut the presumption.  In this instance, the "presumption of regularity" is based on Army Regulation 15-185 which states the ABCMR begins its consideration of each case with the presumption of administrative regularity and that the applicant has the burden of proving an error or injustice by a preponderance of the evidence.

3.  The applicant's records contain insufficient evidence and the applicant further provides insufficient evidence to show he was physically or mentally unfit at the time of his release from active duty.  Therefore, in the absence of evidence to the contrary, it reasonable to presume that the applicant was properly and equitably discharged in accordance with the regulations in effect at that time, that all requirements of law and regulations were met, and his rights were fully protected throughout the separation process.

4.  The purpose of the PDES is to maintain an effective and fit military organization with the maximum use of available manpower, provide benefits for eligible Soldiers whose military service is terminated because of a service-connected disability, and provide prompt disability processing while ensuring the rights and interests of the Army and the Soldier are protected.

5.  A Soldier is considered unfit when the evidence establishes that the Soldier is unable to reasonably perform the duties of his or her office, grade, rank, or rating.  The evidence of record appears to show the applicant was qualified for service upon his release from active duty in December 1980, and his available records appear to show that he did not have any conditions which limited his ability to work in his primary military specialty or required geographic or assignment limitations.  In fact, evidence shows after the applicant's punishment by special court-martial, he transferred to Fort Ord, CA, where he resumed his duties and was promoted two ranks prior to his release from active duty.

6.  Following a compensation and pension examination in February 2012, in which a clinical psychologist opined the applicant's psychiatric condition was at least as likely as not manifest to a compensable degree within one year of separation from service, the applicant, in effect, contends he should have received a medical discharge or medical retirement for his psychiatric disorders.  However, the PDES provides that the mere presence of a medical impairment does not, in and of itself, justify a finding of unfitness.  In each case, it is necessary to compare the nature and degree of a physical disability present with the requirements of the duties the Soldier may be reasonably expected to perform based on the Soldiers office, grade, rank, or rating.  While the opinion of the clinical psychologist is noted, in this case, there is insufficient evidence to corroborate this opinion. 

7.  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 appears to have been physically and mentally fit at the time of his release from active duty in December 1980; therefore, he was not entered into the PDES.  

8.  In view of the foregoing, there is insufficient evidence to grant the requested relief.  The applicant has not shown error, injustice, or inequity for the relief he requests.

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)                                         AR20140008432



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ABCMR Record of Proceedings (cont)                                         AR20140008432



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