IN THE CASE OF: BOARD DATE: 26 July 2016 DOCKET NUMBER: AR20150010516 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: 26 July 2016 DOCKET NUMBER: AR20150010516 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: 26 July 2016 DOCKET NUMBER: AR20150010516 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 reconsideration of his previous request for correction of his records to show he was medically retired. 2. The applicant states: * after he was placed on medical profile he went to his commander and explained that he could no longer perform his duties * he was placed on Dilantin and Phenobarbital and the medication affected his attitude * his commander informed him that he could not be medically discharged but could be separated under the Early Discharge Program * there was never any mention of his inability to adapt socially and emotionally * if behavioral problems existed then his reenlistment (RE) code would reflect this * his DA Form 3349 (Medical Condition-Physical Profile Record) shows his disability was permanent, and separation or retirement would “not be effected without prior medical evaluation” which he did not receive 3. The applicant provides: * DD Form 3349 * Epilepsy Foundation 7-page printout * Partial compensation application 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 AR20140014977 on 7 May 2015. 2. As new evidence the applicant provides his medical profile, medical board proceedings, and information related to the drug Phenobarbital published by the Epilepsy Foundation. 3. The applicant served in the Regular Army as a Hawk Fire Control Crewmen from 3 September 1976. 4. He accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for the possession of marijuana on 19 November 1976 and missing movement on 6 January 1977. 5. On 1 November 1977, he was honorably discharged in accordance with Army Regulation 635-200 (Personnel Separations-Enlisted Personnel), paragraph 5-37, failure to maintain acceptable standards (Expeditious Discharge Program (EDP)), a voluntary separation. His commander cited the applicant’s lack of motivation, and inability to adapt socially or emotionally. He voluntarily consented to this type of discharge and did not provide statement on his own behalf. His DD Form 214 (Report of Separation from Active Duty) shows: * Item 9a (Type of Separation) – Discharge * Item 9c (Authority and Reason) – Army Regulation 635-200, paragraph 5-37 * Item 9e (Character of Service) – Honorable * Item 10 (Reenlistment Code) – RE-3 6. His military personnel record contains three Chronological Records of Medical Care from the U.S. Army Hospital, Wildflecken, Germany, as follows: * 19 October 1977, treated for a minor convulsion (epilepsy) in the emergency room * 20 October 1977, ambulance trip for possible convulsion, brought to clinic for observation * illegible date, ambulance trip after being found unconscious in the shower, transported for follow up care 7. The applicant provides his DA Form 3349, dated 15 August 1977. This document was not signed by the approving authority. This document shows in a. Section A (Duty status) – the applicant was returned to his unit for duty and medically qualified for "limited duty for permanent time" (sic) as evidenced by a medical examination and a review of his health record as of 15 August 1977. b. Section B (Physical Profile) – his physical defect as seizure disorder with a physical designator code of “3” under the physical capacity (P) factor. c. Section C (Assignment Restrictions, or Geographical, or Climatic Area Limitations) – the code H, meaning no assignment to unit where sudden loss of consciousness would be dangerous to self or others such as work on scaffolding, handling ammunition vehicle driving, work near moving machinery. d. Section D (Medical Board Proceedings) – the entry “PERMANENT CHANGE OF PROFILE AS RECORDED UNDER SECTION C.” 8. He also provides: a. a partial compensation application wherein he reported receiving treatment for epilepsy during the period 14 April to 19 April 1977 b. an Epilepsy Foundation Phenobarbital information sheet stating that the use of the drug as a seizure medication can cause sleepiness and sometimes changes in behavior. REFERENCES: 1. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. Paragraph 5-37 (Expeditious Discharge Program) provided for the discharge of enlisted personnel who demonstrated they could not or would not meet acceptable standards required of enlisted personnel in the Army because of the existence of one or more of the following conditions: poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential. The regulation provided that no individual would be discharged under this provision unless the individual voluntarily consented to the proposed discharge. Individuals discharged under this regulation were issued either an honorable or a general discharge. Members deemed to have no potential for useful service under conditions of full mobilization were discharged. 2. Army Regulation 40-501 (Medical Services-Standards of Medical Fitness), in effect at the time, states: a. Seizure disorders and epilepsy are medical conditions requiring evaluation by a medical board and referral to a Physical Evaluation Board (PEB). However, this chapter provides general guidelines and should not to be taken as a mandate to the effect that possession of one or more of the listed conditions means automatic retirement or separation from the service. b. Possession of one or more of the listed conditions does not mean automatic retirement or separation from the service. Determination of fitness or unfitness will be made by the PEB dependent upon the soldier's ability to perform the duties of his or her office, grade, rank, or rating. The duties must be performed, in such a manner as to reasonably fulfill the purpose of his or her employment in the military service. c. When a member is being processed for separation for reasons other than physical disability, his/her continued performance of duty until he/she is scheduled for separation for other purposes creates a presumption that the member is fit for duty. In cases where the medical board determines that the member's condition is such that referral to a physical evaluation board is not appropriate, the member may request, in writing, an additional review by the MTF commander of the medical board findings and recommendations. d. A physical profile containing the numerical designator "3" signifies that the individual meets retention standards. Possess impairment of function limiting assignment. e. Permanent revision of profile from or to a numerical designator "3" or "4" will be accomplished by a medical board when, in the opinion of the profiling officer, the functional capacity of the individual has changed to such an extent that it permanently alters his functional ability to perform duty. Whenever a medical board is held for the sole purpose of permanently revising the physical profile to or from a numerical designator "3" the DA Form 3349 will be used in lieu of the Medical Board Proceedings (DA Form 8-118). 3. Army Regulation 635-40 further states 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/degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his/her office, rank, grade, or rating. The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before that service member can be medically separated or retired. 4. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD codes to be used for these stated reasons. The regulation states separation code "JGH" applies to Soldiers discharged under the provisions of Army Regulation 635-200, chapter 5-37. 5. Army Regulation 601-210 (Personnel Procurement Regular Army Enlistment Program) assign a RE Code of 3 to persons who are not qualified for continued Army service, but the disqualification is waivable. 6. The applicable SPD/RE Code Cross Reference Table, shows that Soldiers given an SPD code of "JGH" will be given an RE code of “3.” 7. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 8. Title 10, U.S. Code, 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. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent. 9. Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for medical conditions incurred in or aggravated by active military service. The VA, however, is not empowered 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 may have a medical condition that is not considered medically unfitting for military service at the time of processing for separation, discharge, or retirement, but that same condition may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency. DISCUSSION: 1. The applicant requests reconsideration of his previous request for correction of his records to show he was medically retired versus honorably discharged. 2. The applicant contends he was discharged without a medical evaluation as required by his physical profile. Unfortunately, there are no medical records. Therefore, there is a presumption of regularity that he received, at minimum, a separation examination. Further, his discharge occurred on 1 November 1977, which is less than 90 days after he underwent the medical examination resulting in his permanent physical profile. It is not likely his condition would have changed drastically in that short span of time. 3. By regulation, an RE code of "3" is the proper code to assign members separated under these provisions of the regulation. 4. The applicant is advised that an RE code 3 applies to persons who are not considered fully qualified for reentry or continuous service; however, it does allow for a waiver of the disqualification. Therefore, if he desires to reenlist, the applicant should contact a local recruiter to determine his eligibility for a waiver. Those individuals can best advise a former service member as to the needs of the Army at the time, and are required to process waivers of RE codes. 5. His complete medical treatment records were not available for review; however, his military personnel record shows he received treatment for seizures/epilepsy while on active duty and after further medical evaluation he was issued a permanent medical profile which found him medically qualified for continued limited duty. 6. It is acknowledged that medical conditions may worsen over time; however, the Army’s rating is dependent on the severity of the unfitting condition at the time of separation. The VA has the responsibility and jurisdiction to recognize any changes in conditions over time by adjusting a disability rating. An award of a VA rating does not establish entitlement to medical retirement or indicate that the initial medical evaluation was in error. 7. Operating under its own policies and regulations, the VA, which has neither the authority nor the responsibility for determining medical unfitness for military duty, awards ratings because a medical condition is related to service (service connected) and effects the individual's civilian employability and/or social functioning. Furthermore, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings or finding other medical conditions to be service connected. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150010516 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150010516 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2