BOARD DATE: 14 June 2016 DOCKET NUMBER: AR20150004239 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 d BOARD DATE: 14 June 2016 DOCKET NUMBER: AR20150004239 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 for correction of the records of the individual concerned. __________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. d BOARD DATE: 14 June 2016 DOCKET NUMBER: AR20150004239 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, correction of his record to show he was medically retired instead of discharged for medical unfitness. 2. The applicant states someone purposely destroyed his military record in a cover-up at Fort Dix, NJ in December 1976. He believes his race played a part in this cover-up. Additionally, he states: a. His unit medically evacuated him from a bivouac maneuver during basic training and placed him in a single tent alone, because of his race. His drill sergeant told him that Lieutenant (LT) Cxxxxxxxxxxx (the executive officer (XO)), a racist white man, threw an explosive device into his tent. The explosion caused lacerations all over his body, blood shot eyes, and great bodily harm. b. He was admitted to the hospital after the explosion and someone at the hospital falsified his hospital records. His hospital records do not mention the explosion because someone was trying to cover-up his attempted murder. c. He is not healthy enough to keep a job or work for very long. He received medical treatment for the following medical condition related to the explosion: * penile implant - a shunt placed in the left cavernous spongiosum (the mass of spongy tissue surrounding the male urethra within the penis) * chronic shoulder dislocation * five bulging disks in the cervical spine [neck] * radiculopathy in the lower back * sleep apnea * nerve damage * headaches * fatigue * body pain * muscle spasms * depression * anxiety * 35 years of sleeplessness 3. The applicant provides an undated letter to the Secretary of Defense. CONSIDERATION OF EVIDENCE: 1. 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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant enlisted in the Regular Army on 3 November 1976 for 3 years. 3. His DA Form 2-1 (Personnel Qualification Record) shows he reported to the U.S. Army Reception Station at Fort Dix, NJ on 3 November 1976. His assignments included: * basic combat training - Company C, 7th Battalion, 3rd Basic Combat Training Brigand, U.S. Army Training Command, Fort Dix, NJ from 12 November 1976 to on or around 13 January 1977 * advanced individual training - Company S, 4th Battalion, US Army Quartermaster School Brigade, Fort Lee, VA from on or about 14 January to 2 May 1977 * material supply specialist - 114th Aviation Company, Fort Clayton, Panama Canal Zone from 3 to 9 May 1977 * material supply specialist - 509th Maintenance Company Panama Canal Zone from 10 May 1977 to 1 May 1979 * material supplyman - Battery H, 29th Field Artillery, Fort Carson, CO from 29 May to 30 November 1979 4. His record contains two letters of commendation. a. The first letter, issued by the 590th Maintenance Company, Panama Canal Zone, on 7 December 1977, commended him for selection as the unit’s Soldier of the Month for November 1977. b. The second letter, issued by Headquarters, 210th Aviation Battalion, Panama Canal Zone, on 28 December 1977, commended him for selection as the 210th Aviation Battalion Soldier of the Month for January 1978. 5. His record contains two DA Forms 2166-5 (Enlisted Evaluation Report (EER)) for the periods December 1977 through April 1978 and May 1978 through October 1978. Both EERs list his rank as specialist four (SP4). Additionally, these EERs show his rater and indorser both rated him as "5 - Ranks with the Very Best [the highest rating a Soldier can receive]" in item E.10 (Is physically fit, as required, for MOS [Military Occupational Specialty]/grade during combat (Physical condition)) during both rating periods. 6. His record contains a letter of commendation issued by the 590th Maintenance Company, Panama Canal Zone, on 20 November 1978. This letter commended him for selection as the unit’s Soldier of the Month for November 1978. 7. His record contains a DA Form 1695 (Oath of Extension of Enlistment), dated 20 March 1979, showing he extended his 3 November 1976 enlistment for 1 month. 8. His record contains an EER for the period November 1978 through April 1979, which shows his rank as SGT (although he held the rank of SP4). This EER shows his rater and indorser both rated him as a "5" in item E.10. 9. Orders Number 196-422, issued by Headquarters, Fort Carson and Headquarters, 4th Infantry Division (Mechanized), Fort Carson, CO, on 3 October 1979 reassigned the applicant to the transfer activity for processing. These orders further state that after processing he would be "relieved from active duty, not by reason of physical disability" and transferred to the U.S. Army Reserve (USAR) Control Group Reinforcement on 30 November 1979. 10. His record contains a Standard Form (SF) 93 (Report of Medical History), showing he received an expiration term of service (ETS) examination on 24 October 1979. This form also shows: a. The applicant reported he previously or currently had the following medical conditions: * swollen or painful joints * sinusitis * hay fever * frequent indigestion * stomach, liver, or intestinal trouble * broken bones * frequent or painful urination * venereal disease - syphilis, gonorrhea, etc. * painful or "trick" shoulder or elbow * "trick" or locked knee * foot trouble * depression or excessive worry * nervous trouble of any sort * inability to perform certain motions [he notes chronic shoulder dislocation and an inability to bend his right knee] * other medical reasons [he noted his feet hurt when he runs or jogs] * have had, or been advised to have any operations [he notes he had surgery on his penis and was advised to have shoulder surgery] * have ever been a patient in any type of hospital [he states he was in the hospital at Fort Dix for pneumonia and in a Baton Rouge, LA hospital for a broken leg] * consulted with or been treated by clinics, physicians, healers, or other practitioners in the past 5 years for other than minor illness [he states he consulted with Dr. Hxxxxxx for shoulder, knee, and foot pain] b. The medical examiner clarified the applicant's reported medical conditions by stating the applicant had a long chronic history of multiple complaints. The only thing in his record was subluxation [partial or incomplete dislocation] of the right shoulder; however, his doctors did not recommend surgery. Otherwise, medical personnel resolved his complaints with routine sick call treatments. 11. His record contains an SF Form 88 (Report of Medical Examination) showing he received an ETS examination on 24 October 1979. The only abnormality the medical examiner noted was a tattoo on his right arm and a history of subluxation of the right shoulder. He was found medically qualified for ETS. 12. The applicant did not provide and his records do not contain any evidence to show medical authorities found him unfit for military service or that he had a medical condition or conditions to raise substantial doubt as to his ability to continue to perform the duties of his office, grade, rank, or rating. Additionally, there is no evidence that he underwent a medical board or a Physical Evaluation Board (PEB). 13. The Army honorably relieved him from active duty on 2 December 1979. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was released from active duty under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 2, for completion of required service, and he received a separation code of "LBK" and a reenlistment code (RE code) of "3." 14. His record contains a Veterans Administration (VA) Form 60-3101a (Request for Information), dated 18 December 1980, which shows the VA requested the Army provide medical information pertaining to the applicant and a line of duty determination, if the Army made a determination. a. The VA indicated the applicant alleged the following disease or injury: (1) The applicant received treatment for a stomachache and hemorrhoids at the Gorgas Hospital, Panama Canal, in 1978. (2) The applicant received treatment for a knee and lower back injury at the Gorgas Hospital, Panama Canal, in January 1978. (3) The applicant received treatment for a shoulder injury at the Gorgas Hospital, Panama Canal, in 1978 and January 1979. b. The Army official who responded to the request stated the Army previously furnished the requesting VA officer information pertaining to the applicant's claim on 10 November 1980. The Army was unable to find a line of duty determination. 15. The applicant provided an undated letter to the Secretary of Defense, wherein he states he was an active service member from 3 November 1976 to 8 December 1979. The applicant also states he sustained numerous severe injuries during a bivouac maneuver at Ft. Dix, NJ, on 7 December 1976. The injuries occurred because an explosive device blew up in his tent. He states he has not been able to resolve the issues related to his disability or his complaint that the Army failed to investigate. He asked that the Secretary of Defense investigate the matter. a. The applicant's basic combat training unit went on a bivouac maneuver in December 1976. Everyone at the bivouac, except the applicant, was in a two-man tent; the applicant was in a tent by himself. b. He pulled kitchen patrol (KP) all day on 6 December 1976; after his release from KP he had to march in full gear for about 20 miles. He was already exhausted when the explosive device detonated in his tent. He recalls being blinded and unable to breathe. He initially tried to get up, but he passed out. He regained consciousness for a few moments and then he passed out again. c. His XO and his Platoon SGTs were present when he regained consciousness for a moment and then passed out completely. He did not regain consciousness again until 3 weeks later. When he regained consciousness, he was under an oxygen tent. His face had lacerations, and his eyes were bloodshot and almost swollen shut. He had pain all over his body. He recalls one of his platoon SGTs telling him the XO threw the explosive device into his tent. d. Someone removed his medical records when he left Fort Dix, NJ. His treatment records were supposed to go to his next duty station, but they never arrived. Even though someone covered up the reason for his injuries, his records show his admission to Walson Army Hospital, Fort Dix, NJ, on 7 December 1976. The record after his admission document contains the word "void" written on the page. Additionally, medical personnel admitted him to the Gorgas Hospital in Panama for a nervous breakdown 6 months later; those documents also show the word "void" written on his medical records. e. He was not able to continue medical care after the Army released him for medical unfitness. He could not return to an active duty status because he received an RE code of "3" with no service-connected benefits. f. When he told the VA about the explosion, they were unable to find any reference to the incident in his records. The VA was not able to order his military medical files, and, as a result, doctors misdiagnosed him with muscle conditions instead of nerve damage. He currently has a 120 percent (%) service-connected injury. He started with 0%. He has a neck injury, five bulging discs, a back injury, chronic shoulder dislocation, and issues with his knees. He also suffers from frequent headaches, back radiculopathy, sleep apnea, a penile implant, and mental depression. REFERENCES: 1. Army Regulation 635-200, chapter 2, in effect at the time, states Title 10, United States Code (USC), section 1169, provides that no enlisted member of the Army may be discharged before his term expires except as prescribed by the Secretary of the Army, by sentence of a general or special court-martial, or as otherwise provided by law. A member enlisted or ordered to active duty normally will be discharged or released from active duty on the date upon which he completes the period for which enlisted or ordered to active duty. 2. Army Regulation 635-5-1 (Separation Program Designators), paragraph 4f (Release or Transfer - Involuntary), in effect at the time, defines an involuntary release or transfer as "Release or transfer to the ARNGUS or USAR, by established directive which does not require an application or request from the member." 3. Army Regulation 635-5-1 (Appendix), in effect at the time, states the separation code "LBK" is the correct separation code for Soldiers involuntarily released or transferred under the provisions of Army Regulation 635-200, chapter 2 for completion of required service (ETS). 4. Army Regulation 601-210, table A-2 (Regular Army Reenlistment Eligibility Codes), in effect at the time, states the reenlistment code RE-3 is applicable for individuals who are not qualified for continued Army service, but the disqualification is waivable. However, prior Army personnel are ineligible for enlistment from a civilian status unless a waiver is granted. 5. Army Regulation 635-40 (Personnel Separations Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, establishes the Physical Disability Evaluation System (PDES). This regulation sets forth policies, responsibilities, and procedures for the retention, retirement, or separation of a member who is determined to be unfit to perform the duties of his office, grade, rank or rating because of physical disability. a. Paragraph 2-1 states the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case considered, it is necessary to correlate the nature and degree of physical disability, which is present with the requirements of the duties, which the member reasonably may be expected to perform by virtue of his office, grade, rank, or rating. b. Paragraph 4-6 provides for medical boards, which are appointed by the commander of a Medical Treatment Facility for the purpose of assisting in the determination of medical fitness, mental competence, mental responsibility, and disposition of patients. c. Paragraph 4-7 states medical boards make a determination regarding the member's qualification for retention on the basis of criteria set forth in chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness). d. Paragraph 4-8 states the medical board will recommend referral of members who do not meet medical retention standards to a PEB. A member being processed for nondisability separation will not be referred to a PEB unless he has a medical impairment or impairments, which raises substantial doubt as to his ability to continue to perform the duties of his office, grade, rank, or rating. e. Paragraph 4-13 states the voting members of a PEB will determine the findings and recommendations based on the following aspects of the case. The vote of the majority will be controlling. The board will determine whether the member is fit or unfit by reason of physical disability. If the PEB finds that a member is physically unfit for military service, the board must then determine whether the member is eligible for physical disability retirement or severance pay. 6. Title 10, USC, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent. 7. Title 38, USC, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active 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. The VA, however, is not required by law to determine medical unfitness for further military service. DISCUSSION: 1. There is no evidence in the available record, and the applicant did not submit any evidence that shows he suffered from a medical condition or conditions that would have warranted entry into the PDES. a. His EERs show he was in excellent physical condition and able to fulfil the physical rigors associated with the Army, his position, and his rank. Additionally, he was well enough to compete and win the Soldier of the Month competition on several occasions. b. His separation orders state his discharge was "not by reason of physical disability." c. His ETS medical examination shows he was medically qualified for release. 2. His DD Form 214 shows the Army honorably relieved him from active duty on 2 December 1979 for completion of required service and that he received a separation code of "LBK" and an RE code of "3." a. The code "LBK" indicates he was involuntary separated from active duty upon his ETS date and transferred to the USAR. b. The RE code of "3" means he was not qualified for continued Army service, but the disqualification is waivable, and he was ineligible for enlistment from a civilian status without an approved waiver. He could have reenlisted if the Army approved a waiver. c. The record did not provide any information to clarify why he was involuntarily separated upon his ETS date or why he was ineligible for reenlistment. 3. Title 10, USC, section 1201, does not support the applicant's request for a medical retirement because he did not undergo a PEB and receive a disability rating of at least 30%. 4. The VA does not operate under the same laws and policies as the Army. A disability rating from the VA does not establish error on the part of the Army. The VA does not have the authority or the responsibility for determining medical unfitness for military service. The VA may award ratings because of a medical condition related to service (service-connected) that affects the individual's civilian employability. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150004239 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150004239 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2