MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           18 APRIL 2002                   
	DOCKET NUMBER:   AR2001065637

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Mr. Ronald E. Blakely		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:  In effect, physical disability retirement or separation.   
The applicant states that there were no medical records or evidence of any history of his condition [prior to his entry on active duty].  

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:

The applicant enlisted in the Army for 3 years on 24 August 1993 and was assigned to Fort Leonard Wood, Missouri for training.

An 8 November 1993 Medical Evaluation Board (MEB) narrative summary indicated that the applicant had finished basic training and was in his first few days of advanced training when he began having bizarre thinking and paranoid thoughts – that his unit was out to get him, and that he had special powers, i.e., “the truth,” which could destroy the unit and company commander.  He also had ideas that he wanted to fly and go to West Point.  He felt that he had some special powers or tried too hard and that is why he was in the hospital.  He had slept poorly the last few nights.  He had noticed that he felt quite good and that his energy level was high.  He felt that all of the things that had happened to him were because people did not want him to succeed.  He rambled with mild to moderate pressured speech.  He had no past psychiatric history.  He stated that his sleeping pattern had been disturbed for at least a couple of nights, but the physician indicated that it had actually been much longer.  His affect was quite labile during the interview and the applicant became somewhat irritable during the interview, and broke into tears when he talked to his parents on the telephone.  The applicant noted no racing thoughts or flight of ideas.  He had no homicidal or suicidal ideation.  Past medical history and psychiatric history were negative.  The applicant was alert and oriented.  He had profound attentional difficulties, and a great deal of difficulty with vigilance testing.  His memory was good after repetition, but he made mistakes secondary to attentional deficits initially.  Visual spatial skills were intact.  Affect and mood were bright, but also labile.  He was cooperating during the interview.  His language was intact. 

The examining physician stated that the applicant fulfilled criteria for schizophreniform disorder, based on his prominent paranoid delusions, marked incoherence, and looseness of association with inappropriate labile affect, as well 

as the fact that it was too short a period of time for a diagnosis of schizophrenia or to rule out any obvious overt mood disorders.  The most likely diagnosis would be schizophreniform disorder.  He did not meet the criteria for brief reactive psychosis at that time.  He believed that the applicant had some schizoid traits manifested by his schizotypal traits, as evidenced by his perfectionism, social isolation, difficulty with relationships and his kind of bizarre pursuit of prevention-perfection.  The physician stated that the applicant was mentally competent and able to manage his own financial affairs and would be discharged to his own care.  He stated that the applicant would require extensive psychiatric followup, probably lifelong, and would need psychiatric medications.  He stated that the applicant’s current medication was Trilafon, 24 mg a day and that he would have a trial of Lithium to absolutely rule out any kind of major affective disorder or bipolar disorder.  

On 31 January 1994 the MEB recommended that the applicant be referred to a Physical Evaluation Board (PEB).  The applicant concurred.  The MEB indicated that the applicant was mentally competent to understand the nature of and cooperate in PEB proceedings, and was considered to have been mentally competent to understand the nature and effect of his entry into the service at the time he enlisted.

On 10 February 1994 a PEB indicated his schizophreniform disorder, manifested during advanced training, co-existing with possible Axis II conditions, and rated as mild and EPTS (existing prior to service), made him unfit to perform the duties required of him.  The PEB indicated that his impairments were rated at a disability level of 30 percent or more, but were such that a permanent evaluation was not then possible.  The PEB recommended that he be placed on the temporary disability retired list (TDRL).  The applicant concurred.  On                19 April 1994 the applicant was placed on the TDRL with a 30 percent disability rating.       

A 31 January 1995 TDRL evaluation report indicates that the applicant was functioning quite well.  He was working approximately 20 hours a week, had no sleep or appetite problems or difficulties.  His concentration and thinking was clear.  His parents believed he was doing well and were happy with the results.  He stopped his Lithium approximately two months ago and had no symptoms since then.  The VA did not give him benefits and he was not getting care there. The physician stated that he explained to the applicant the risk of another episode occurring and the risk versus benefits of stopping Lithium.  The mental 

status examination revealed that the applicant was alert and oriented, his thought process and content was clear and coherent without psychosis.  Attention, visual spatial skills, memory, and language were all intact.  There was no suicidal or homicidal ideation.  The examining physician stated that the applicant had an episode of psychosis consistent with a first episode of manic bipolar disorder.  A pattern needed to be determined before a full diagnosis could be made, and only time would tell whether his condition would become either bipolar or schizophrenia.  His clear functioning at that time being completely off of Lithium made one believe that he had bipolar disorder.  The doctor recommended that the applicant remain on TDRL for six months to a year to determine a pattern of illness and diagnosis so that his disability status could be determined.  The applicant concurred with the findings and the recommendation. 

On 16 March 1995 a PEB determined that his condition, schizophreniform disorder in remission, was considered to be EPTS, based on premorbid Axis II diagnoses, early onset in military career and generally accepted medical principles.  The PEB stated that his condition had not improved to the extent that he was fit for duty.  His unfitting condition was found to be not service incurred or permanently aggravated and his impairment existed prior to active duty.  The PEB continued by saying that his disability had increased only to the extent of its accepted normal aggravation, and because his condition was not service incurred or permanently aggravated, he was ineligible for disability compensation.  The PEB found the applicant physically unfit and recommended that he be separated from the service without disability benefits. 

The applicant nonconcurred and demanded a formal hearing with personal appearance and an appointed counsel to represent him.

On 19 April 1995 a formal PEB arrived at the same findings and recommendation as the 16 March 1995 informal PEB.  The formal PEB indicated that the case was adjudicated in the absence of the applicant, that the applicant did not respond to the formal hearing notification, nor to his counsel’s attempts to discuss the case telephonically.  The PEB indicated that the applicant stated his intention not to respond or appear.

The applicant provided a rebuttal to the findings and recommendation of the formal PEB, stating that he joined the Army to serve his country and to make something of himself, not to be completely and constantly harassed and abused by some drill sergeant.  He stated that his problem began when his life was threatened by another private.  He sought help from a chaplain, but that person 

did not help at all.  He stated that any place was better than where he was and that he would have done anything to get out of there.  He went to the hospital, and was forced to take medication that he did not want.  He did whatever he was told to get out of there.  He stated that his unfitting conditions were unknown to him, and wanted to know what evidence was available.  He questioned why he was put on the TDRL if his conditions were not a result of his service.  He stated that he was fine when he enlisted.  He stated that he believed that he was just as good now as he was then, but he knew that the issue would permanently aggravate him. 

On 3 May 1995, in response to his rebuttal, the PEB noted that the applicant had provided no new information to be considered by the board, but only his personal statement.  The board answered his queries posed in his rebuttal, stating that he had an acute mental disorder shortly after completing basic training, that it was not clear that the disorder developed in response to some actual threat or trauma or other event, but most often those disorders “just happen” with no identifiable stressors.  It informed him that it was generally assumed that there might be some personal predisposition to the development of the disorder, and although the disorder might be fully resolved and no longer manifesting, the Army must consider the predisposition at present, making the possibility of a recurrence an unacceptable risk for continued service; and that it was that predisposition which was considered to be the EPTS condition, not the acute disorder that brought him to the hospital initially.  The PEB stated that he was placed on the TDRL to provide for a sufficient time so that the type and progress of the disorder could be established more definitely.  He was further informed that since he had returned to his previous level of functioning, he was not eligible for further disability benefits from the Army, and since medical knowledge suggests that there was most likely a predisposition to that type of reaction, the PEB determined that he was not authorized return to active duty.  The PEB stated that his entire case, to include his rebuttal, was being forwarded to the Army Physical Disability Agency (USAPDA) for further processing.

On 14 June 1995 the applicant was removed from the TDRL and discharged from the service because of permanent physical disability.  The order effecting the discharge indicated that he was not entitled to severance pay because his disability existed prior to service.

Army Regulation 635-40 establishes the Army physical disability evaluation system and sets forth policies, responsibilities, and procedures that apply in determining whether a soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  It provides for medical 

evaluation boards, which are convened to document a soldier’s medical status and duty limitations insofar as duty is affected by the soldier’s status.  A decision is made as to the soldier’s medical qualifications for retention based on the criteria in AR 40-501, chapter 3.  If the MEB determines the soldier does not meet retention standards, the board will recommend referral of the soldier to a PEB.

Physical evaluation boards are established to evaluate all cases of physical disability equitability for the soldier and the Army.  It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of soldiers who are referred to the board; to evaluate the physical condition of the soldier against the physical requirements of the soldier’s particular office, grade, rank or rating; to provide a full and fair hearing for the soldier; and to make findings and recommendation to establish eligibility of a soldier to be separated or retired because of physical disability.

Army Regulation 635-40, paragraph 3-3, provides that according to accepted medical principles, certain abnormalities and residual conditions exist that, when discovered, lead to the conclusion that they must have existed or have started before the individual entered military service.  Examples of these conditions include hereditary conditions.

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.

There is no evidence, nor has the applicant provided any, to indicate that his discharge from the Army because of permanent physical disability that existed prior to his military service was in error or unjust and as such, there is no basis to correct his record to show physical disability retirement or separation.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 14 June 1995, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 14 June 1998.

The application is dated 16 November 2001 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.  Prior to reaching this determination the Board looked at the applicant’s entire file.  It was only after all aspects of his case had been considered and it had been concluded that there was no basis to recommend a correction of his record that the Board considered the statute of limitations.  Had the Board determined that an error or injustice existed it would have recommended relief in spite of the applicant’s failure to submit his application within the three-year time limit.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

__FNE __  __BJE_ _   __REB__  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001065637	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020418	
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.	142.00	
2.	108.00	
3.	269	
4.		
5.		
6.