BOARD DATE: 9 May 2017 DOCKET NUMBER: AR20150018116 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x____ ___x_____ ____x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 9 May 2017 DOCKET NUMBER: AR20150018116 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20130015912, dated 22 May 2014. _____________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. BOARD DATE: 9 May 2017 DOCKET NUMBER: AR20150018116 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, in effect, reconsideration of his earlier request for correction of his military records to show he was medically discharged. 2. The applicant states the Department of Veterans Affairs (VA) and a Federal court granted him a 100-percent service-connected disability rating for schizophrenia after his discharge. 3. The applicant provides: * U.S. Court of Appeals for Veterans Claims Memorandum Decision, dated 29 March 2011 * VA medical records and documentation * DD Form 214 (Report of Separation from Active Duty) CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20130015912 on 22 May 2014. 2. The U.S. Court of Appeals for Veterans Claims Memorandum Decision and VA medical records provided by the applicant are new evidence that was not previously considered by the Board and warrant consideration at this time. 3. The applicant enlisted in the U.S. Army Reserve on 2 August 1976 for a period of 6 years. He was ordered to active duty for training on 24 October 1976. 4. On 5 November 1976, nonjudicial punishment was imposed against him for urinating behind the telephone booths in the barracks. 5. On 10 November 1976, he was notified of his pending separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-39 (Trainee Discharge Program (TDP)). The commander stated the reason for the proposed action was the applicant could not meet the minimum standards prescribed for successful completion of training because of a lack of motivation and self-discipline. 6. A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 23 November 1976, shows he was admitted to the hospital on 7 November 1976 after falling on stairs in the company barracks and hitting his head, arm, and ribs. 7. On 12 December 1976, he acknowledged notification of the proposed honorable discharge. He waived his rights and elected to make a statement in his own behalf. He stated if given another chance he could adapt to the military way of life and become a better Soldier. He has been receiving therapy for his feet and arm. The doctor said that further treatment would enable him to favorably compete in his physical training inspections. He would make an effort to learn the English language. 8. On 13 December 1976, he was counseled for major difficulties stemming from his lack of understanding or speaking conversational English and his distinct lack of motivation and self-discipline. 9. On 16 December 1976, he underwent a separation physical examination and was found qualified for separation. Item 42 (Psychiatric) of his Standard Form 88 (Report of Medical Examination), dated 16 December 1976, shows he was rated normal. 10. On 24 January 1977, the separation authority approved the recommendation for separation under the TDP with an honorable discharge. 11. On 1 February 1977, he was honorably discharged under the provisions of Army Regulation 635-200, paragraph 5-39. He completed 3 months and 8 days of creditable active service. He was assigned separation program designator (SPD) code JEM. 12. There is no evidence showing he was diagnosed with any unfitting medical or mental health condition prior to his discharge. 13. On 22 May 2014, the ABCMR denied his request for a medical discharge. 14. He provided the following VA documentation with his request for reconsideration: a. a medical record, dated 3 August 1977, showing he was diagnosed with anxiety neurosis with paranoid features; b. a medical record, dated 6 March 1990, showing he was diagnosed with chronic, undifferentiated-type schizophrenia; c. documentation showing he was granted service connection for his schizoaffective disorder, effective 8 February 1996, with a 100-percent disability rating; d. a U.S. Court of Appeals for Veterans Claims Memorandum Decision, dated 29 March 2011, stating the court set aside the 4 January 2010 Board of Veterans Appeals decision denying an effective date earlier than 8 February 1996 for award of service connection and assignment of a 100-percent disability rating for schizoaffective disorder and remanded the matter for further development and re-adjudication; and e. a VA Rating Decision, dated 15 March 2012, showing entitlement to an earlier effective date for service connection for schizoaffective disorder was granted effective 2 February 1977. 15. An advisory opinion was rendered by the Army Review Boards Agency Senior Medical Advisor, dated 15 September 2016, wherein he stated: a. The applicant met medical retention standards. b. His medical conditions were duly considered during medical separation processing. c. A review of the available documentation found no evidence of a medical disability or condition which would support a change to the character or reason for the applicant's discharge in this case. 16. A copy of this advisory opinion was provided to the applicant for comment and/or rebuttal. He responded and stated he was granted a 100-percent service-connected disability rating after his discharge from the military. The reason the Federal court granted the disability rating was because the court found his psychiatric condition was incurred during his military service and had a direct service connection. Otherwise, his benefits would have been granted effective the date of his claim. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from the Army. Paragraph 5-39 in effect at the time governed the TDP. It provided for the separation of service members who lacked the necessary motivation, discipline, ability, or aptitude to become productive Soldiers or who failed to respond to formal counseling. a. The service member must have: * voluntarily enlisted * been in basic, advanced individual, on-the-job, or service school training prior to award of a military occupational specialty * not completed more than 179 days of active duty on his or her current enlistment by the date of separation b. Soldiers could be separated when they demonstrated they: * were not qualified for retention due to failure to adapt socially or emotionally to military life * could not meet minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation, or self-discipline; or demonstrated character and behavior characteristics not compatible with satisfactory continued service 2. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. The unfitness must be of such a degree that a Soldier is unable to perform the duties of his or her office, grade, rank, or rating in such a way as to reasonably fulfill the purposes of his or her employment on active duty. 3. Title 10, U.S. Code, chapter 61, provides for disability retirement or separation for a member who is physically unfit to perform the duties of his or her office, rank, grade, or rating because of disability incurred while entitled to basic pay. 4. Army Regulation 635-5-1 (SPD Codes), in effect at the time, prescribed the specific authorities (statutory or other directives), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. SPD code JEM applied to Soldiers being discharged under Army Regulation 635-200, paragraph 5-39, for marginal or non-productive performance (TDP). 5. Title 38, U.S. Code, sections 310 and 331, permit the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA, however, is not required by law to determine medical unfitness for further military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge, or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency. DISCUSSION: 1. The applicant contends he should have been medically discharged because he was awarded a 100-percent service-connected disability rating for schizophrenia by the VA after his discharge. 2. The evidence of record shows he underwent a separation medical examination on 16 December 1976 and was found medically qualified for separation. Item 42 of his Standard Form 88, dated 16 December 1976, shows he was rated normal. There is no evidence showing he was diagnosed with any unfitting medical or mental health condition prior to his discharge on 1 February 1977 or suggesting he was unable to perform his military duties due to a medical condition. 3. The evidence of record shows he was administratively separated under the TDP for his inability to meet the minimum standards prescribed for successful completion of training. 4. The rating action by the VA does not demonstrate an error or injustice on the part of the Army. The VA, operating under its own policies and regulations, assigns disability ratings on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150018116 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150018116 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2