BOARD DATE: 13 June 2017 DOCKET NUMBER: AR20160001228 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: 13 June 2017 DOCKET NUMBER: AR20160001228 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. BOARD DATE: 13 June 2017 DOCKET NUMBER: AR20160001228 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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty), ending on 4 January 1971, as follows: * item 30 (Remarks) – change the disability rating from 60 percent to 100 percent * item 31 (Permanent Address for Mailing Purposes after Transfer or Discharge) – from "2XXX N____ T____ Street, Arlington, V  22207" to his current address "2XX T____ Drive, Charles Town, WV  25414" 2. The applicant states he was rated 60-percent disabled upon retirement in 1971, but he is now rated 100-percent disabled by the Department of Veterans Affairs (VA). Also, the address reflected on his DD Form 214 was his address when he entered the Army; he now lives at a different address. His DD Form 214 was never updated. 3. The applicant provides: * DD Form 214 * DD Form 215 (Correction to DD Form 214) * Disability Letter, dated 28 May 2002, from the VA 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 was inducted into the Army of the United States on 18 March 1969. His DD Form 47 (Induction Record) listed his home of record (HOR) and address as "2XXX N____ T____ Street, Arlington, V  22207." 3. He was trained as an infantryman and served in Vietnam from 28 September 1969 to on or about 20 June 1970. He was injured in Vietnam on 28 May 1970 and suffered multiple fragment wounds to his left leg and left arm. 4. Following his transfer to Fort Belvoir, VA, a medical evaluation board (MEB) determined several of his medical conditions did not meet retention standards and referred his case to a physical evaluation board (PEB). 5. On 20 November 1970, a PEB convened and found his two identified medical conditions unfitting. The PEB rated his elbow condition as 40-percent disabling and his sciatic nerve paralysis as 40-percent disabling. The PEB recommended a 60-percent combined disability rating and placement on the Temporary Disability Retired List (TDRL). He concurred with the PEB findings and waived a formal hearing of his case. 6. Special Orders Number 246, issued by Headquarters, Department of the Army, on 21 December 1970, ordered his retirement effective 4 January 1971 and placement on the TDRL effective 5 January 1971 with a 60-percent disability rating. 7. He retired on 4 January 1971 and was placed on the TDRL on 5 January 1971. His DD Form 214 shows in: * item 30 – disability rating 60 percent * item 31 – 2XXX N____ T____ Street, Arlington, V  22207 8. A subsequent TDRL PEB also found his medical conditions unfitting and recommended his permanent retirement by reason of disability with a combined disability rating of 50 percent. It is noted on the TDRL PEB form that the initial PEB rated the applicant with a combined rating of 60 percent and upon further evaluation his conditions had improved such that his combined rating was 50 percent. He was permanently retired effective 1 December 1972. 9. He provided a VA letter, dated 28 May 2002, addressed to his address in Fairfax, VA, showing he is rated 100-percent permanently disabled by the VA due to his service-connected conditions. REFERENCE: 1. Title 38, Code of Federal Regulations, section 3.400, states the effective date of a disability rating is the day following separation from active service or date entitlement arose if claim is received within 1 year after separation from active service. Otherwise, the effective date is the date of receipt of claim, or the date entitlement arose, whichever is later. 2. Title 38, U.S. Code, permits 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. 3. Army Regulation 40-501 (Standards of Medical Fitness) provides medical retention standards and is used by MEBs to determine which medical conditions will be referred to a PEB. Paragraph 3-3 states Soldiers whose medical conditions fail retention standards are to be referred to a PEB as defined in Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). The PEB will make the determination of fitness or unfitness. 4. Army Regulation 635-40 established the Army Physical Disability Evaluation System and set forth policies, responsibilities, and procedures that govern the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. a. Chapter 3 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 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. b. Chapter 4 provides guidance on referring Soldiers for evaluation by an MEB when a question arises as to the Soldier's ability to perform the duties of his or her office because of physical disability. c. Chapter 7 provides guidance for processing Soldiers on the TDRL. Soldiers will be placed on the TDRL when their disability is not stabilized and their combined disability is rated at 30 percent or higher. A Soldier on the TDRL is required to undergo periodic examination at least once every 18 months to determine whether there has been a change in the disability for which he or she was temporarily retired. Medical examiners and adjudicative bodies will carefully evaluate each case and recommend removal from the TDRL. If it is determined that the disability has become permanent, and is rated at 30 percent or more, his or her name will be removed from the TDRL and permanently retired. 5. Army Regulation 635-5 (Separation Documents), in effect at the time, established the standardized policy for preparing and distributing the DD Form 214. The purpose of the separation document is to provide the individual with documentary evidence of his or her military service. It is important that information entered on the form should be complete and accurate. Chapter 2 contained guidance for preparation of the DD Form 214. The instructions stated: * item 30 – this block is used to complete entries that are too long for their respective blocks or mandatory entries – if the cause of separation is physical disqualification which results in permanent retirement, enter percentage of disability * item 31 – enter the permanent address for mailing purposes furnished by the individual at the time of separation – this should be the place of residence or forwarding address DISCUSSION: The DD Form 214 is a record of a member's continuous active duty and reflects the circumstances and conditions that existed at the time of separation. It is not intended to record future events or changes in a member's life beyond separation. a. At the time of his retirement and placement on the TDRL, the PEB assigned the applicant a 60-percent disability rating, and that is what is reflected on his DD Form 214. Through time, the VA is responsible for reevaluating Veterans and adjusting their disability ratings in accordance with the law. An adjustment of a VA rating post-service has no bearing on the applicant’s disability rating upon separation from military service. b. At the time of his induction, the applicant listed his address and home of record as "Arlington, VA." He retired by reason of disability in January 1971. The entry pertaining to the mailing address after separation is provided by the Soldier to the official preparing the DD Form 214. The applicant would have had to provide the mailing address as shown on his DD Form 214. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001228 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001228 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2