MEMORANDUM OF CONSIDERATION

IN THE CASE OF:  

BOARD DATE:           5 December 2000
DOCKET NUMBER:   AR2000038318

	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.

	Mr. Carl W. S. Chun		Director	
	Mr. Gerald E. Vandenberg		Analyst	

  The following members, a quorum, were present:

	Ms. Ann M. Campbell		Chairperson	
	Mr. Allen L. Raub		Member	
	Mr. Jose A. Martinez		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 to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	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:  Reconsideration of his application to correct his records by removing his bar to reenlistment, changing his reenlistment eligibility (RE) code, deleting the Senior Enlisted Evaluation Reports (SEER) of May 1980 and March 1981, and deleting the relief for cause SEER.  The applicant also requests that his honorable discharge be changed to physical disability retirement.

APPLICANT STATES: In effect, that he was suffering from substantial hardships, marital problems and mental duress that led to an inability to perform his duties properly.  By his reference to his current VA diagnosis, it is inferred that the applicant contends that he was suffering from a mental condition that rendered him unfit for service.

COUNSEL STATES:  In effect, that the applicant’s mental duress resulted in the determination of unsuitability and that this unsuitability was a forerunner of his schizophrenia.  Counsel also contends that, for retirement purposes, a personality disorder should be treated the same as an acquired psychosis, neurosis or psychoneurosis and that the applicant is entitled to physical disability.  

NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records which were summarized in a memorandum of consideration (MOC) prepared to reflect the Board's previous consideration of the case (AC82-03075) on 24 November 1982 and (AC82-03075A) on 31 August 1983.

The applicant submits a copy of his August 1996 Department of Veterans Affairs (VA) disability rating showing that his VA compensation level for paranoid schizophrenia was increased from a 50% to a 100% disability rating.  Also submitted are the applicant’s Social Security Administration’s award letter, three pages of VA treatment records and a copy of his divorce decree.

These documents and the request for physical disability retirement were not previously available to, or considered by the Board and constitute new evidence or argument that requires Board review.

The applicant’s records show that he was barred from reenlistment due to inefficiency and misconduct.  He underwent a physical examination at the time of his discharge.  This examination did not indicate that the applicant was complaining of, or diagnosed as suffering from any condition that would have warranted review under the provisions for physical disability separation or retirement nor is there any indication of a personality disorder.

The Army Physical Disability Agency (USAPDA) has noted in advisory opinions in similar cases that confusion frequently arises from the fact that the Army and the VA use different rating systems.  While both use the Veterans Administration Schedule for Rating Disabilities (VASRD), not all of the general policy provisions set forth in the VASRD apply to the Army.  The Army rates only conditions determined to adversely effect the individual’s ability to perform assigned duties.  Physical disability separation pay or retirement compensates the individual for loss of a career.  The VA, on the other hand, may rate any service-connected impairment in order to compensate the individual for loss of civilian employability or social functioning.  The USAPDA has also pointed out that military disability ratings are based upon the degree to which a medical condition affects the ability to perform duty and not upon the diagnosis or name attached to the condition.  By way of comparison, the VA can and does rate an individual simply for the existence of a diagnosis or condition.  An example is a compensable rating for pain. The Army could rate the same painful condition only if it impaired the soldier’s ability to perform assigned tasks. 

Army Regulation 40-501, paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.

Army Regulation 15-185 sets forth the policy and procedures for the ABCMR.  It provides that, if a request for a reconsideration is received within one year of the prior consideration and the case has not been previously reconsidered, it will be resubmitted to the Board if there is evidence (including but not limited to any facts or arguments as to why relief should be granted) that was not in the record at the time of the Board’s prior consideration.  The staff of the Board is authorized to determine whether or not such evidence had been submitted.

The regulation provides further guidance for reconsideration requests that are received more than 1 year after the Board’s original consideration or after the Board has already reconsidered the case.  In such cases, the staff of the Board will review the request to determine if substantial relevant evidence has been submitted that shows fraud, mistake in law, mathematical miscalculation, manifest error, or if there exists substantial relevant new evidence discovered contemporaneously or within a short time after the Board’s original decision.  If the staff finds such evidence, the case will be resubmitted to the Board.  If no such evidence is found, the application will be returned without action.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. The applicant has submitted no new evidence to show that the enlisted evaluations in question were improper or in error.

2.  The manner and narrative reason for the applicant’s discharge was not unjust, inequitable or in error.  The applicant was barred from reenlistment for specific incidents of a discreditable nature, not due to unsuitability or having been diagnosed as having a personality disorder.  Further, personality disorders may render individuals administratively unsuitable rather than unfit due to physical disability.  Interference with effective performance of duty in association with these conditions is to be dealt with through appropriate administrative channels as was done in this case.

3.  The evidence does not support the argument that mental duress over his family problems caused his misconduct.  Further, in the absence of evidence that at the time of the discharge or of the behavior that led to the discharge the applicant was so impaired by mental, emotional, psychological or psychiatric problems as to be unable to tell right from wrong and adhere to the right, the current diagnosis does nothing to demonstrate an injustice in the discharge.

4.  The award of a VA compensation rating does not mandate change of, nor demonstrate an inequity in a military disability rating.  The VA, operating under its own policies and regulations, may make a determination that a medical condition warrants compensation.  The VA is not required to determine fitness for duty at the time of separation.  The Army must find a member physically unfit before he can be medically retired or separated.  Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

5.  The overall merits of the case, including the latest submissions and arguments, are insufficient as a basis for the Board to reverse its previous decision.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

_AMC___  __ALR __  __JAM __  DENY APPLICATION

	Carl W. S. Chun
     Director, Army Board for Correction 
	of Military Records

INDEX

CASE ID	AR2000038318	
SUFFIX		
RECON	 	
DATE BOARDED	20001205 	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	108.00	
2.	108.01	
3.	108.02	
4.		
5.		
6.