BOARD DATE: 24 October 2017 DOCKET NUMBER: AR20160001805 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: 24 October 2017 DOCKET NUMBER: AR20160001805 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: 24 October 2017 DOCKET NUMBER: AR20160001805 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 military records by showing he was retired due to a physical disability. 2. The applicant states he was injured enough to receive a medical retirement. He was not afforded a medical board. His military records were not reviewed for medical processing. 3. The applicant provides: * self-authored statements (17 pages) * DD Form 47 (Record of Induction), dated 5 June 1968 * Form W-2 (Wage and Tax Statement), dated 31 July 1968 * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 31 July 1968 * Social Security Administration letter, dated in July 1972 * VA Rating Decision, dated 4 December 1989 * DD Form 215 (Correction to DD Form 214), issued 11 July 2005, correcting his social security number * Department of Veteran Affairs (VA) Medical Center, Dublin Georgia, medical records (approximately 61 pages) * Various other medical records (15 pages) 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’s official military personnel file contains the following pre-induction documents as indicated: a. Standard Form 88 (Record of Examination), dated 29 April 1968, documenting his pre-induction examination showing his 2nd degree pes planus diagnosis, a PULHES profile of 112111, and that he was qualified for induction. The PULHES factors represent the following: * P = physical capacity or stamina * U = upper extremities * L = lower extremities * H = hearing and ears * E = eyes * S = psychiatric b. Standard Form 89 (Report of Medical History), dated 29 April 1968, showing the applicant indicated in his own words that he was in good health. He also stated he previously had rheumatic fever with no cardiac involvement. 3. On 5 June 1968, he was inducted into the Army of the United States. His DA Form 20 (Enlisted Qualification Record) shows his physical status as of 6 June 1968 with a PULHES of 111111. 4. Special Orders Number 211, Headquarters, United States Army Infantry Center, Fort Benning, Georgia, dated 29 July 1968, announced the applicant’s release from active duty (REFRAD), not by reason of physical disability, effective 31 July 1968. These orders directed his transfer to the U.S. Army Reserve Control Group (Annual Training). 5. The applicant’s discharge packet is missing from his military records. However, his DD Form 214 shows he was administratively discharged on 31 July 1968, under the provisions of Army Regulation 600-200, chapter 6, by reason of dependency. His service was characterized as honorable. He completed 1 month and 26 days of creditable active service. He was issued a DD Form 215 correcting the last digit of his social security number. 6. In the processing of this case, a staff medical advisory opinion was obtained. Based on the applicant’s VA and other civilian medical records, the senior medical advisor concluded: a. The applicant did not meet medical accession standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness) and the following Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or Separation) applicable to his era of service. Note: History of rheumatic fever does not meet the standard. The applicant had a clear 18 year history of rheumatic fever since 1950 with two hospitalizations in 1954 and 1956, and a decade of cardiologic care and medication therapy from 1954 – 1965. b. The applicant’s medical conditions were duly considered during medical separation processing. * There is no evidence of exacerbation of the applicant’s 18 year history of an EPTS (existed prior to service) condition of rheumatic fever, during his brief period of service * No evidence of problems related to his EPTS pes planus (flat feet) * No evidence of residual problems related to his right upper lip infection c. A review of the available documentation found no evidence of a medical disability or condition which would support a change to the character or reason for the discharge in this case. 7. On 27 December 2016, a copy of the advisory opinion was sent to the applicant for his information and opportunity to respond. He provided a response wherein he indicated: * although the Army made an error in drafting him into the Army, he does not intend to get a lawyer * he worked for Armstrong Cork Company for two and a half years, where he earned $450 - $550 a week prior to the draft, where thereafter he earned $321 a month * while he was diagnosed with rheumatic fever as a child in 1947; he had been healed and medication free since 1965, but his condition recurred during his military service * he was admitted into the hospital twice following basic training in mid-December 1969 and again on 26 January 1971 * Army officials made errors in his medical records that hurt his life; his four children were age 10 and under at the time * he could not work for 19 years after basic training and he has not held a job for 46 years * he experienced a drug and alcohol problem and suffers from depression as a result of the Army’s error * he should be granted a 60 percent disability rating and 45 years of back pay REFERENCES: 1. AR 635-200 provides for the separation of enlisted personnel from active duty. Chapter 6, in effect at the time, provided guidance for separation due to dependency when, by reason of death or disability of a member of the Soldier’s family occurring after enlistment, induction, or order to active duty, family members of the Soldier become principally dependent upon the Soldier for care. 2. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, established the Army physical disability evaluation system. It set 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. If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations. a. Paragraph 2-2b of the same regulation provides guidance on presumptions of fitness and states that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness that can be overcome only by clear and convincing evidence that he was unable to perform his duties. b. Paragraph 3-1 states the mere presences 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 Soldier reasonably may be expected to perform because of their office, grade, rank, or rating. To ensure all Soldiers are physically qualified to perform their duties in a reasonable manner, medical retention qualification standards are established in AR 40-501 (Standards of Medical Fitness), chapter 3. These guidelines are used to refer a Soldier to a medical evaluation board. c. Paragraph 3-2 states disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. When a Soldier is being processed for separation for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation, creates a presumption that the Soldier is fit. 4. Chapter 7 (Physical Profiling) of Army Regulation 40-501 (Standards of Medical Fitness) provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted. 5. 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 rated at less than 30 percent. Section 1212 provides that a member separated under Section 1203 is entitled to disability severance pay. DISCUSSION: 1. The applicant requests a medical retirement based on injuries incurred and/or aggravated during his military service. 2. The available evidence indicates all of the applicant’s medical conditions were considered by medical authorities prior to his release from active duty. There is no evidence of a medical disability or condition existing at the time of his release from active duty in 1968 that would support further medical evaluation and possible entrance into the physical disability evaluation system. It is through the physical disability evaluation system that fitness or unfitness for duty decisions are rendered by appropriate authorities. 3. The evidence of record confirms the applicant’s 1 month and 26 days of creditable active service ended upon his REFRAD by reason of dependency. 4. It is understood that medical conditions may worsen over time. The VA has the responsibility and jurisdiction to recognize a veteran’s changes in medical conditions over time and adjust the disability ratings accordingly. Such adjustments – or service-connection for conditions that were not rated by the Army – are not evidence of an error on the part of the Army. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001805 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001805 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2