RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 23 November 2005 DOCKET NUMBER: AR20050000885 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 Mr. W. W. Osborn, Jr. Analyst The following members, a quorum, were present: Mr. John N. Slone Chairperson Mr. Patrick H. McGann, Jr. Member Mr. Larry J. Olson Member 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, in effect, that her discharge be changed to medical retirement. 2. The applicant states that she suffers post traumatic stress disorder (PTSD) because she was the victim of sexual harassment and death threats from her supervisor. She should have been treated, but she was transferred and sexually harassed by another supervisor. She contends that the officer in charge of the mess made sexual advances to her and once sexually assaulted her in the back of a truck. She blames the behavior for which she received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) and other misbehavior on PTSD. She was coerced into leaving the military by being threatened with imprisonment for 10 years for adultery. Her release from the military was devastating, she was disqualified from unemployment compensation, had no way to earn a living and the led to depression and substance abuse. 3. The applicant provides a copy of a letter to the Board of Veterans Appeals from a civilian psychologist who describes her as 60 percent service connected for bipolar disorder and PTSD. She also submits copies of some service records and her own statement to the Department of Veterans Affairs (VA). CONSIDERATION OF EVIDENCE: 1. The applicant is requesting correction of an alleged error or injustice which occurred on 11 August 1983. The application submitted in this case is dated 16 January 2005. 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 limitations 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. The applicant enlisted in the Regular Army on 27 January 1981. She completed training as a cook and was stationed in Hawaii in accordance with her station of choice enlistment option. On 1 January 1982 she was advanced to pay grade E-3. 4. The applicant received letters of appreciation for her duty performance at the local military museum in the Spring of 1982. Then, in January 1983 she received NJP for using disrespectful language to a noncommissioned officer which resulted in a suspended reduction in rank. On 8 April 1983 the suspension was vacated and she received another NJP for absence from her appointed place of duty. She married a fellow soldier on 28 April 1983. 5. On 6 July 1983 the applicant was notified of her intended elimination from the service for unsatisfactory performance as evidenced by the two NJPs and counseling for additional violations. The notification included a narrative description of her recent assignments, duty performance and conduct. This included a Criminal Investigation Division (CID) investigation into charges of fraternization with the mess officer while deployed to Korea. CID titled the applicant for adultery with the married officer. 6. The applicant consulted with counsel and acknowledged the notification and that she had been advised of her rights. The company commander recommended separation with an honorable discharge and the separation authority approved the recommendation. 7. An 8 July 1983 medical examination found her qualified for separation. In the medical history which she provided for that physical examination, she reported no trouble sleeping, no depression or excessive worry, no loss of memory and no nervous trouble of any sort. At a mental status evaluation on 18 July 1983 the applicant's behavior was normal. She was fully alert and oriented and displayed an unremarkable mood. Her thinking was clear, her thought content normal and her memory good. There was no significant mental illness. The applicant was mentally responsible. She was able to distinguish right from wrong and to adhere to the right. 8. On 11 August 1983 the applicant was separated with an honorable discharge, by reason of Unsatisfactory Performance, under the provisions of Army Regulation 635-200, chapter 13. She had 2 years, 6 months, and 15 days of creditable service and no lost time. 9. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance, and provides, in pertinent part, that commanders will separate a member under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier. 10. Army Regulation 40-501, paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, her must be unable to perform the duties of her office, grade, rank or rating. 11. 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 higher VA rating does not establish error or injustice in the 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 civilian 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 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 normally be compensated only 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 applicant was performing duty at the time she was separated. Furthermore, she was found fit at a medical examination. Additionally, there is no substantiating evidence to show any emotional or mental problems at the time of her separation. Indeed, she did not report any such problems on the medical history she provided for her separation physical. 2. The fact that the VA, in its discretion, may have awarded the applicant a disability rating is a prerogative exercised within the policies of that agency. It does not, in itself, establish physical unfitness for Department of the Army purposes. 3. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement. 4. Records show the applicant should have discovered the alleged error or injustice now under consideration on 11 August 1983; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 10 August 1986. 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 timely file in this case. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __JNS___ _PHM___ __LJO __ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that 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. 2. As a result, the Board further determined that there is no evidence provided which shows that it would 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. Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned. ___ John N. Slone__________ CHAIRPERSON INDEX CASE ID AR SUFFIX RECON DATE BOARDED 20051123 TYPE OF DISCHARGE DATE OF DISCHARGE DISCHARGE AUTHORITY DISCHARGE REASON BOARD DECISION DENY) REVIEW AUTHORITY ISSUES 1. 108.04 2. 3. 4. 5. 6.