IN THE CASE OF: BOARD DATE: 3 May 2016 DOCKET NUMBER: AR20150008707 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 IN THE CASE OF: BOARD DATE: 3 May 2016 DOCKET NUMBER: AR20150008707 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. IN THE CASE OF: BOARD DATE: 3 May 2016 DOCKET NUMBER: AR20150008707 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: * medical retirement under Title 10, U.S. Code (USC), chapter 61 * payment of all pay and allowances, in pay grade O-3, from his date of separation through 15 December 1987, his initial Reserve Obligation Termination Date 2. The applicant states, in effect: a. He was not retained in service; instead, he was selected for early separation, which was an injustice. Other former Nike Hercules-trained "highly qualified" officers were retained and reassigned. He was one of the last three African-American Soldiers of the 3rd Battalion, 71st Air Defense Artillery Regiment; however, he was not retained. b. He suffered an injury to his left Achilles tendon. His commander, in haste to process his separation by a Department of the Army (DA) imposed suspense date, failed to accurately read/review his medical treatment records for potential referral to a medical review board, despite the fact that he was excused from physical training and fitted with a leg cast for several months prior to his separation from active duty. He has had chronic pain in his left ankle since then. c. He was not referred to a medical evaluation board (MEB) for possible medical discharge or retirement and he did not receive sufficient physical therapy of follow-on care for his injury. He has suffered with a major depressive order as a result of the Achilles rupture. He was robbed of a successful military career, which now merits a non-combat post-traumatic stress disorder (PTSD) prognosis. d. He was improperly issued the separation code "LBK," which is applicable to Active Guard Reserve officers. He was a product of the Reserve Officers' Training Corps (ROTC) program, and "non-retention" is cited for a "highly qualified officer." He should be made whole and retired in accordance with separation code "LBC" for maximum service. 3. The applicant provides: * DD Form 214 (Certificate of Release or Discharge from Active Duty) * excerpts from his medical records * Department of Veterans Affairs (VA) disability ratings * numerous pages of VA progress notes * DA Form 4980-14 (Army Commendation Medal Certificate) * a confidential report of findings * Motor Vehicles Disabled Placard and License Plate application * excerpt from Army Regulation 600-8-24 (Officer Transfers and Discharges), dated 12 April 2006 * Physical Disability Board of Review (PDBR) letter, dated 23 March 2015 CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code (USC), 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, and 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 was appointed as a Reserve commissioned officer of the Army on 16 December 1981. He entered active duty as a three-year obligated volunteer on 18 December 1981. He was initially assigned as a student at the U.S. Army Air Defense School, Fort Bliss, Texas. 3. Following the applicant's completion of his initial qualification training and officer basic course, he was awarded military occupational specialty 14C (Nike Hercules Missile Air Defense Artillery Officer) as his area of concentration (AOC). 4. The applicant was assigned to the 3rd Battalion, 71st Air Defense Artillery Regiment in the Federal Republic of Germany. Following the completion of his overseas tour, he was assigned to the U.S. Army Air Defense School at Fort Bliss, Texas. 5. A Standard Form (SF) 600 (Chronological Record of Medical Care) shows the applicant was treated at the William Beaumont Army Medical Center Orthopedic Clinic for a partial Achilles tendon rupture on 22 August 1985. 6. A DA Selection Board was convened to consider officers for final voluntary indefinite status in accordance with Army Regulation 135-215 (Officer Periods of Service on Active Duty). The board examined the entire record of each officer on an impartial basis and selected a certain number of officers for non-retention on active duty. The applicant was notified on 24 October 1985 of his selection for non-retention. 7. Special Orders Number 249-14, issued by Headquarters, U.S. Army Air Defense Artillery Center and Fort Bliss, Texas on 30 December 1985, directed the applicant's release from active duty not by reason of physical disability on 18 February 1986. 8. A board of officers disapproved the applicant's reconsideration request for final involuntary status on or about 9 January 1986. 9. The applicant was honorably released from active duty on 18 February 1986, under the provisions of Army Regulation 635-100 (Personnel Separations – Officer Personnel), chapter 3, following his completion of 4 years, 2 months, and 1 day of net active service this period. The DD Form 214 he was issued shows he was separated by reason of "expiration term of service," and he was issued the separation code "LBK." 10. The applicant's separation physical is not available for review. 11. The applicant's available record is void of medical documentation that indicates he suffered from any physical or mental ailment to such an extent that warranted his referral to the Army's Physical Disability Evaluation System (PDES). 12. An NGB Form 89 (Proceedings of a Federal Recognition Examining Board), dated 15 January 1987, shows the applicant was determined to be physically qualified for service in the Army National Guard. 13. The applicant provides: a. Numerous Standard Forms 600s (Chronological Record of Medical Care) that show he was seen on various dates for different routine maladies or ailments on a walk-in or follow-up basis. b. Multiple VA Rating Decisions that show he was granted 20 percent service-connected disability compensation for a partial tear to his left Achilles tendon. REFERENCES: 1. Army Regulation 135-215 (Officer Periods of Service on Active Duty), in effect at the time, provides guidance on officers whose requests were disapproved for voluntary indefinite status. It provides that in the case of officers whose requests for voluntary indefinite status were disapproved by Headquarters, DA, such officers will be relieved from active duty within 90 days of receipt of notification. 2. Army Regulation 635-100 provides the authority for the separation of commissioned and warrant officers from the Active Army. Chapter 3, in effect at the time, specifically provided for the relief from active duty or active duty for training of officers of the Reserve components and the Army. Section XIV (Expiration of Active Duty Commitment) contains guidance on expiration of active duty commitment. 3. Army Regulation 635-5-1 (Separation Program Designators (SPD)) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD to be used for these stated reasons. The regulation provides that the SPD code "LBK" is used in cases where the narrative reason for discharge is "Expiration Term of Service" and the authority for discharge under this SPD is "Army Regulation 635-100, chapter 3, section XVI." 4. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the PDES 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 or her office, grade, rank, or rating. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating. a. MEBs 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 a Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3. If the MEB determines a Soldier does not meet medical retention standards, the board will recommend referral to a PEB. b. The mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade or rating. 5. Title 10, U.S. Code (USC), section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or who is granted a disability rating of at least 30 percent. Title 10, USC, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30 percent. DISCUSSION: 1. The applicant's request for medical retirement and compensation in pay grade O-3 from his date of separation through his initial Reserve Obligation Termination Date was carefully considered. 2. The applicant contends his non-selection for final involuntary status was an injustice. Other former Nike Hercules-trained "highly qualified" officers were retained and reassigned. He was one of the last three African-American Soldiers of the 3rd Battalion, 71st Air Defense Artillery Regiment; however, he was not retained. 3. The evidence of record shows the applicant was selected for non-retention by a DA Selection Board that was convened to consider officers for final voluntary indefinite status in accordance with Army Regulation 135-215. His request for reconsideration and extension of service was disapproved and he was accordingly released from active duty service. 4. The applicant contends his commander, in haste to process his separation by a DA imposed suspense date, failed to accurately read/review his medical treatment records for potential referral to a medical review board, based on his Achilles tendon injury, despite the fact that he was excused from physical training and fitted with a leg cast for several months prior to his separation from active duty. Consequently, he was not referred to the PDES for possible medical discharge or retirement. 5. A separation based on a physical disability requires processing through the PDES. Referral into the PDES requires a designation of "unfit for duty" before an individual can be separated from the military because of an injury or medical condition. At the time of the applicant's separation, there was no evidence of an unfitting condition that would have warranted his entry into the PDES. 6. A key element of the Army PDES is a Soldier's condition at the time of separation. A disability rating assigned by the Army is based on the Soldier's level of disability at the time of separation and can only be accomplished through the PDES. Referral to an MEB is warranted if there is a medical diagnosis of a disabling condition. Army regulations and Department of Defense (DoD) authorities provide that a medical impairment alone does not constitute a physical disability for DoD rating purposes. The applicant provides no evidence to show his Achilles tendon rupture was severe enough to render him unfit to perform his military duties. 7. The VA awarded the applicant 20 percent service-connected disability following his release from active duty. However, the Army and the VA disability evaluation systems are independent of one another. A diagnosis of a medical condition and/or a subsequent award of a rating by another agency does not establish an error by the Army. Operating under different laws and policies, the VA does not have the authority or the responsibility to determine medical unfitness for military service. The VA may award ratings because a medical condition is related to service (service-connected) and affects the individual's civilian employability. The VA has the responsibility and jurisdiction to recognize any changes in a condition over time by adjusting a disability rating. 8. The applicant contends his DD Form 214 reflects the improper separation code "LBK"; he should have been retired for maximum service and his separation code should be "LBC." The assigned narrative reason for separation was "Expiration Term of Service." The separation code "LBK" was the appropriate code for Soldiers separated for expiration of active duty commitment, under the provisions in effect at the time. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150008707 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150008707 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2