IN THE CASE OF:	  

		BOARD DATE:	  25 August 2015

		DOCKET NUMBER:  AR20150000105 


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 discharged from the U.S. Army based on a permanent disability.

2.  The applicant states that item 28 (Narrative Reason for Separation) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged based on "Condition, Not a Disability."  However, the Department of Veterans Affairs (VA) has granted him service connection for his condition (bipolar disorder), which is a disability.

3.  The applicant provides copies of his DD Form 214 and two VA letters.

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 had prior active duty enlisted service in the Regular Army from 2 August 1984 through 19 December 1985.

3.  He enlisted in the Army National Guard (ARNG) of the United States and Massachusetts ARNG on 12 December 2005.  He was awarded military occupational specialty 92G (Food Service Specialist).

4.  He was ordered to active duty on 10 July 2007 in support of Operation Iraqi Freedom.

5.  A review of the applicant's military personnel records failed to reveal a copy of the applicant's administrative separation packet.

6.  The applicant's DD Form 214 shows he entered active duty on 10 July 2007 and he was honorably discharged on 30 September 2007 under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations),  paragraph 5-17 (Other designated physical or mental conditions), based on "Condition, Not a Disability."  He had completed 2 months and 21 days of active duty service this period.

7.  In support of his application the applicant provides the following documents.

   a.  VA Regional Office, Boston, MA, letter addressed to the applicant dated 15 July 2009 that shows effective 12 December 2008 the VA determined the following conditions were service connected:

* Bipolar disorder, most recent episode hippomanic, alcohol dependence
* Hallux valgus-limitus to include degenerative joint disease, right great toe

   b.  VA Regional Processing Office, Buffalo, NY, letter addressed to the applicant, dated 19 January 2010, that shows his claim for Post-9/11 GI Bill educational benefits was denied because he has insufficient qualifying active duty service after 10 September 2001.  He was informed, "[g]enerally, you must have an aggregate of 90 days of qualifying service or be discharged for a disability after serving 30 continuous days of active duty service."  He was advised that VA records show he has 83 days of active duty service and that he was discharged for "Condition, Not a Disability."

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 5 (Separation for Convenience of the Government), paragraph 5-17, provides that commanders may approve separation under this paragraph on the basis of other physical or mental conditions not amounting to disability.  It includes 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.  

9.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

10.  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.  However, an award of a VA (or other government agency) disability rating does not establish error or injustice on the part of the Army.  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.  Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at different determinations based on the same impairments.  Furthermore, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show he was discharged from the U.S. Army based on permanent disability because the VA granted him service connection for his bipolar disorder.

2.  The regulations governing the Board's operation require that the discharge process be presumed to have been in accordance with applicable law and regulations unless the applicant can provide evidence to overcome that presumption.  In the absence of evidence to the contrary, the discharge process, including the narrative reason for separation shown on his DD Form 214, is presumed to have been, and still is, appropriate.

3.  The statutory guidance permits the VA to award compensation for disabilities which it determines were incurred in or aggravated by active military service, including those that are detected after discharge, and which impair the individual's industrial or social functioning.  The fact that the VA determined the applicant's bipolar disorder is service connected is not within the purview of the ABCMR.

4.  Therefore, in view of the foregoing, there is an insufficient basis for granting 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)                                         AR20150000105



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ABCMR Record of Proceedings (cont)                                         AR20150000105



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