MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:           15 February 2000                     
	DOCKET NUMBER:   AR1999023985

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Ms Gale J. Thomas.		Analyst	

  The following members, a quorum, were present:

	Mr. Fred Eichorn		Chairperson	
	Ms. Karol A. Kennedy		Member	
	Mr. Roger Able		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether the application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  Disability retirement in lieu of disability separation.  The applicant states that subsequent to his separation the Veterans Administration (VA) granted him a service connected disability for post traumatic stress disorder (PTSD), and that he should have been diagnosed for this condition and medically retired.  In support of his request the applicant submits copies of his discharge for the Army National Guard (ARNG) in January 1996; his request for financial assistance from the Army Emergency Relief (AER); because of an over collection by the Internal Revenue Service (IRS); a March 1995 denial for incapacitation pay; a decision by the Social Security Administration on his disability claim; and medical records from the Department of Veterans Affairs, Medical Center, Washington, DC. 

PURPOSE:  To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.

EVIDENCE OF RECORD:  The applicant's military records show:

On 28 June 1963, he enlisted in the Regular Army.  Following completion of basic and advanced individual training, he was assigned to Germany as a subsistence storage specialist.  He completed 2 tours in Vietnam and 1 tour in Korea. 

A Medical Evaluation Board (MEB) conducted on 12 October 1979, noted that the applicant complained of low back pain and left leg pain, however, his physical examination was within normal limits with full range of motion of his back and good to fair agility.  A neurologic exam of his back was within normal limits with no sensory or motor deficit in the reflex changes.  The applicant had previously been evaluated at Fort Lee, Virginia by a gastroenterologist as having functional bowel syndrome.  The MEB diagnosed the applicant with low back pain with typical pain on motion, and functional bowel syndrome, and recommended that he be referred to a Physical Evaluation Board (PEB). 

On 17 October 1979, an informal PEB concluded that the applicant was physically unfit for continued service because of low back pain.  The board rated his disability at 10 percent in accordance with the VA Schedule for Rating Disabilities (VASRD) Code 5295, and recommended his separation with disability severance pay.

On 18 October 1979, the applicant did not concur with the informal board’s findings and requested a formal hearing, however, on 26 October 1979, after considering current regulation and on the advise of his counsel, he withdrew his request for a former hearing. 

On 21 November 1979, the applicant was separated from active duty in accordance with Army Regulation 635-40, paragraph 4-19e(3), in the pay grade of E-7, and received $25,149.00 in disability severance pay.

On 15 January 1996, he was discharged from the Army National Guard and assigned to the USAR Control Group (Retired).

Subsequent to his separation the applicant was granted social security disability benefits for depression, alcoholism, and osteoarthritis.  

The applicant contends that subsequent to his separation the VA granted him a service connected disability for Post Traumatic Stress Disorder (PTSD).

Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rated at less than 30 percent.

Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.

Title 38, United States Code, section 310 and 331, permits he 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 error or injustice in he Army rating.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  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 employability.  Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at a different disability rating based on the same impairment.  Furthermore, unlike the Army the VA can evaluate a veteran throughout his or her lifetime, adjusting he percentage of disability based upon that agency’s examinations and findings.  The applicant’s disability was properly rated in accordance with the VA Schedule for Rating Disabilities, and his separation with severance pay was in compliance with law and regulation

PTSD, an anxiety disorder, was not recognized as a psychiatric disorder until 1980 with the publishing of the Diagnostic and Statistical Manual of Mental Disorders (DSM) III.  The condition is described in the current DSM-III-R, pages 247 through 25l.  While PTSD has only been categorized by psychiatrists as a distinct diagnosis since 1980, it has, as early as the Civil War, been described in psychological literature, variously labeled as shell shock, soldier's heart, effect syndrome, combat fatigue and traumatic neurosis.  During the period of time in question, similar psychiatric symptomatology was categorized as hysterical neurosis.  Although the current label of PTSD is of rather recent acceptance, the idea that catastrophes and tragedies can result in persistent emotional and psychological symptoms is common even among the lay public.  While PTSD was not recognized as a specific illness at the time 

of the applicant's separation from the service, the fact that an individual might not be fit for further military service because of psychosis, psychoneurosis, or neurological disorders was outlined in Army Regulation 40-501 which was in effect at the time of his separation.  The Army here established standards and procedures for determining fitness for retention and utilized those procedures and standards in evaluating individuals at that time.  The specific diagnostic label given to an individual's condition a decade or more after his discharge from the service may change, but any change does not call into question the application of then existing fitness standards.

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.  Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 21 November 1979, the date the applicant was separated.  The time for the applicant to file a request for correction of any error or injustice expired on 21 November 1982.

The application is dated 25 January 1999 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.

DETERMINATION:  The subject application was not submitted within the time required. The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

___fe___  ___kak___  __ra____  CONCUR WITH DETERMINATION

		Karl F. Schneider
		Director, Army Review Boards Agency 

INDEX

CASE ID	AR1999023985	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000215	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1. 177	110.02	
2.		
3.		
4.		
5.		
6.