RECORD OF PROCEEDINGS

	IN THE CASE OF:        

	BOARD DATE:            22 JANUARY 2004                  
	DOCKET NUMBER:   AR2003088653

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

	Mr. Carl W. S. Chun		Director	
	Ms. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Ms. Joann H. Langston		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Ronald J. Weaver		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests disability retirement or separation.

2.  The applicant states his “treating psychologist and psychiatrist” have reviewed his service medical records and told him that he should have received a medical discharge from the Army.

3.  The applicant provides a statement from his service representative and extracts from his service medical and Department of Veterans Affairs medical records in support of his request.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE: 

1.  Counsel requests that the applicant records be corrected to show that he received “an honorable medical discharge from the military service.”

2.  Counsel states that the applicant’s service medical records indicated that he was diagnosed with “an acute schizophrenic episode” in June 1974 following a reported threat on the applicant’s life.  The medical records also indicated that the applicant’s treating physician noted that he [the applicant] was becoming progressively more withdrawn and that there was deterioration in relationships, hostility, and appearance of catatonic mutism.

3.  Counsel states that following the episode military physicians gave a diagnosis of situational adjustment reaction after the applicant was hospitalized in June 1974.  He notes that the applicant underwent a second period of hospitalization from November to December 1974 for adjustment problems and was suffering from “general malaise and depression due to his mother’s illness.”

4.  By 12 December 1974, counsel stated that the applicant was suffering from “severe situational emotional problems and was subsequently discharged “due to an emotionally unstable personality disorder.”

5.  Counsel states that the applicant has had a long history of mental illness and is currently receiving psychiatric treatment from the Department of Veterans Affairs and that his treating psychiatrist and psychologist indicate that the applicant “suffers from a psychiatric condition that started on active duty.”  He notes that the applicant currently has a claim pending for “service connection for a psychiatric condition.”

6.  Counsel provides no evidence beyond that already provided by the applicant.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an error which occurred on 
14 January 1975.  The application submitted in this case is dated 18 March 2003. 

2.  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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  Records available to the Board indicate that the applicant entered active duty on 10 July 1973 when he was 18 years of age.  His enlistment physical examination did not note any medical deficiencies or problems.

4.  The applicant successfully completed basic and advanced individual training and in November 1973 he was assigned to Germany as a postal clerk.

5.  In an undated request for a psychiatric examination for the purpose of “possible elimination,” by the applicant’s unit commander, it was noted that the applicant had requested to be transferred from the Mainz Postal Office and that he wasn’t considered “for separation until he was transferred from the Mainz Postal Office.”  The commander indicated that the applicant was extremely paranoid, but that lately he had come out of his shell and was more outgoing.  The request did note, however, that the applicant was very moody, that he was sometimes very depressed, and that he had a tendency to lose his temper with other men in the unit at times.

6.  A 4 June 1974 “technician admission note” indicates that the applicant was admitted to the United States Army Hospital in Landstuhl, Germany for psychiatric observation.  The intake interview noted that the applicant stated he was being admitted because of a drug problem and because he “had problems with [his] mind [and] nerves.”  Other intake information indicated that the applicant was fearful that he might be “bumped off,” and that a friend of his had beaten him up for no reason.  A “provisional” diagnosis of “acute schizophrenic episode” was rendered with a recommendation that the applicant was in “need of more definitive evaluation.”

7.  The applicant was apparently evacuated from Germany and hospitalized at Walter Reed Army Medical Center until 18 July 1974 when he was discharged without medication.  His diagnosis was recorded as “situation adjustment reaction.”  The recommendation for follow-up care was for the applicant to be seen as necessary by mental hygiene at his new duty station.  Following the applicant’s release from the hospital, he was assigned to Fort Lewis, Washington.

8.  On 2 August 1974 a medical treatment document from Madigan General Hospital notes that at some point the applicant reported to the emergency room with a complaint of being “nervous and depressed about being stationed here.”  The applicant indicated to medical personnel that he wanted to be at home with his sick mother.  The medical evaluator also noted “has hx [history] of paranoid ? schizophrenic.”  He was prescribed Valium for the night and instructed to report to the psychiatric clinic in the morning for evaluation.

9.  The following morning, 3 August 1974, he reported to the hospital.  His medical records contain the notation that he was suffering from “transient depression from new duty assignment, illness in the family” and should be considered for a compassionate reassignment.

10.  On 21 August 1974 the applicant reported to medical personnel at Madigan General Hospital that he was experiencing “general malaise associated with problems (personal) and depression.”  He was referred to mental hygiene and returned to duty.

11.  On 12 November 1974 a local bar to reenlistment was initiated and ultimately approved.  

12.  On 25 November 1974 the applicant was admitted to the psychiatric ward for observation after being read charges associated with a court-martial action for assault.  The narrative summary of his hospitalization indicated that “after being read his charges, he apparently ran off or talked back, or something which was considered unusual, and he was subsequently brought to the emergency room.  While in the emergency room he related a history of the recent death of his mother and a feeling that she ‘communes’ with him.”  He was then admitted to the psychiatric ward.

13.  During the applicant’s hospitalization, he “was cooperative and pleasant.  However, he exhibited evidence of having difficulty dealing with frustration.  If confronted, he would frequently walk off and, if prevented from doing this, would go into a rage or panic reaction.  He seemed to use an excessive amount of denial and repression, thus making his assessment of reality somewhat skewed. These reactions have probably been intensified by the recent death of his mother.  He was treated essentially without medications and psychological testing was confirmative of the above.”  The applicant’s final diagnosis was “no psychiatric disorder” and he was returned to duty on 6 December 1974.

14.  On 23 December 1974 the applicant was notified by his unit commander that he was initiating action to administratively separate the applicant under the provisions of Army Regulation 635-200, Chapter 13, as a result of character and behavior disorders.  The applicant consulted with counsel and waived his attendant rights.  A physical examination, completed on 26 December 1974, cleared the applicant physically, for administrative separation.

15.  The recommendation was approved, and on 14 January 1975 the applicant was discharged under honorable conditions.  He had 1 year, 6 months, and 5 days of creditable service at the time of his discharge.  In November 1987 the Army Discharge Review Board upgraded the characterization of the applicant’s 1975 discharge to fully honorable.

16.  A July 1994 letter from the staff psychiatrist at the Orangeburg Area Mental Health Center noted that the applicant was being treated at that facility and that he “has a mental disorder diagnosed as Mixed Personality Disorder, with Antisocial and Passive Aggressive Features.”  

17.  In October 1997 the applicant submitted an initial claim for disability compensation to the Department of Veterans Affairs for posttraumatic stress disorder (PTSD).  His claim was initially denied, but ultimately, in 1999 his claim was approved and he was granted a 50 percent disability rating for the disorder.

18.  By 1999 various mental health officials at the Department of Veterans Affairs concluded that the applicant’s “psychiatric disorder” was directly attributable to incidents in the applicant’s military service.  One physician noted in 2001 that “whether the diagnosis is either PTSD…or a form of depression or psychosis, it is directly related to his experiences while in the military.”

19.  Army Regulation 635-200 sets forth the policy and prescribes the procedures for administrative separation of enlisted personnel.  Chapter 13, in effect at that time, applied to separation for unfitness and unsuitability.  Unsuitability included inaptitude, apathy, alcoholism and character and behavior disorders.  When separation for unsuitability was warranted an honorable or general discharge was issued as determined by the separation authority based upon the individual's entire record.

20.  Army Regulation 40-501 states that personality disorders may render an individual administratively unfit rather than unfit because of physical disability.  Interference with performance of effective duty in association with these conditions will be dealt with through appropriate administrative channels.  It also states that transient, situational maladjustment due to acute or special stress do not render an individual unfit because of physical disability, but rather may be the basis for administrative separation if recurrent and causing interference with military duty.

21.  Title 38, United States Code, sections 1110 and 1131, permit the Department of Veterans Affairs (VA) to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a VA rating does not establish error or injustice in an Army rating or the basis for an individual’s administrative separation action.  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 civilian employability.  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.  The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while the VA may rate any service connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.  A common misconception is that veterans can receive both a military retirement for physical unfitness and a VA disability pension.  By law, a veteran can only be compensated once for a disability.  If a veteran is receiving a VA disability pension and the ABCMR corrects the records to show that a veteran was retired for physical unfitness, the veteran would have to choose between the VA pension and military retirement.

DISCUSSION AND CONCLUSIONS:

1.  The evidence that is available indicates that the applicant’s June 1974 “provisional” diagnosis of acute schizophrenic episode, was ultimately, after further observation at Walter Reed Army Medical Center, determined to be more appropriately characterized as “situation adjustment reaction.”

2.  The evidence shows that following extensive observation at Madigan General Hospital it was determined that the applicant did not suffer from any sort of psychiatric disorder, which would have warranted referral for evaluation under the Army’s physical disability system.  The fact that the applicant was administratively discharged rather than processed for separation via the disability system supports this conclusion.

3.  The fact that the Department of Veterans Affairs may now be struggling with an appropriate label for the applicant’s condition nearly 30 years after his discharge is not evidence that his administrative discharge in 1975 was not the appropriate avenue for separation.

4.  A rating action by the Department of Veterans Affairs does not necessarily demonstrate any error or injustice by the Army.  The Department of Veterans Affairs, operating under its own policies and regulations, assigns disability ratings as it sees fit.  Any rating action by that agency does not compel the Army to modify its reason or authority for separation.

5.  Records show the applicant should have discovered the error or injustice now under consideration on 14 January 1975; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 14 January 1978.  However, the applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__JHL    _  __AAO__  __RJW __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented and the merits of this case are insufficient to warrant the relief requested, and therefore, it would not be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  

		___   See Attached______
		        CHAIRPERSON

INDEX

CASE ID	AR2003088653	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20040122	
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.	108.00	
2.		
3.		
4.		
5.		
6.