BOARD DATE: 7 September 2017 DOCKET NUMBER: AR20160002682 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: 7 September 2017 DOCKET NUMBER: AR20160002682 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: 7 September 2017 DOCKET NUMBER: AR20160002682 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 item 28 (Narrative Reason for Separation) of his DD Form 214 (Certificate of Release or Discharge from Active Duty). 2. The applicant states on 15 October 2003 the Department of Veterans Affairs (VA) determined his disability was service-connected. He has been receiving compensation from the VA dating back to the date following his discharge from the U.S. Army on 6 June 2003. a. He states that all of his VA documents show his disability as service-connected; however, his DD Form 214 shows his disability existed prior to service (EPTS). b. This administrative error is causing him a problem in obtaining Post-9/11 GI Bill educational benefits. He adds that his state representative, the Honorable Kay G___, agrees this is an error and asked one of her caseworkers to look into the matter. 3. The applicant provides copies of his DD Form 214 and VA rating decision. 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. A DD Form 2808 (Report of Medical Examination), prepared by the examining physician on 1 October 2001, in pertinent part, shows in: * Measurements and Other Findings – * item 53 (Height): 67.5 inches * item 54 (Weight): 191 pounds * item 55 (Minimum Weight – Maximum Weight): 123 – 189 (pounds) * item 55b (Actual Body Fat % [Percentage] - Maximum Body Fat %): 23.90 – 24 (%) * item 74 (Examinee/Applicant): qualified for service/airborne duty * item 77 (Summary of defects and diagnoses): reference item 54 – Overweight 22 pounds; Body Fat 23.74%; Maximum of 24% * item 80 (Medical Inspection Date): 31  October 2001, Height: 67 inches; Weight: 196 pounds; % Body Fat: 23.74; Maximum Weight: 174 pounds * item 86 (Waiver Granted): no entries 3. The applicant enlisted in the U.S. Army Reserve on 9 October 2001 for a period of 8 years. He further enlisted in the Regular Army on 31 October 2001 for a period of 3 years. 4. Two DD Forms 2366 (Montgomery GI Bill Act of 1984) were completed by the applicant on 9 October 2001 and also on 5 November 2001. The Statement of Understanding section (on both forms) shows, in pertinent part, "I must complete 36 months of active duty service before I am entitled to the current rate of monthly benefits for a period of 36 months." Both forms were signed by the applicant and a witness. 5. The applicant was awarded military occupational specialty 11C (Indirect Fire Infantryman). On 18 March 2002, he was assigned overseas to serve in Germany. 6. A review of the applicant's military personnel records failed to reveal copies of his medical evaluation board (MEB) or physical evaluation board (PEB) proceedings. 7. Headquarters, U.S. Army Europe, Schweinfurt Transition Center (Germany), Orders 076-007, dated 17 March 2003, discharged the applicant under the provisions of (UP) Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation), effective 6 June 2003. The additional instructions, in pertinent, show: * You are not entitled to disability severance pay in the rank of private based on 1 year, 7 months, 5 days of service as computed under Title 10, U.S. Code, section 1208. * Your date of discharge will not be later than the date established by the Physical Disability Branch unless the Transition Center receives a change to the original physical disability message. * Percentage of disability: 0 percent (%). Disability did not result from a combat related injury. 8. A DD Form 214 shows the applicant entered active duty this period on 31 October 2001 and was honorably discharged on 6 June 2003 UP AR 635-40, paragraph 4-24b(4). He had completed 1 year, 7 months, and 6 days of net active service this period. It also shows in – * Item 26 (Separation Code): JFM * Item 28: "Disability, Existed Prior to Service, Physical Evaluation Board" * Item 21a (Signature of Member Being Separated), the applicant signed the document 9. In support of his application the applicant provides a copy of a VA letter, dated 23 January 2015, which shows the applicant was granted combined service connection, rated at 20%, effective 7 June 2003 for: * atresia, right pulmonary artery, with secondary hypoplastic right lung (10%) – this was considered a preexisting abnormality; service connection was granted because this condition, which existed prior to military service, permanently worsened as a result of service * compensatory emphysema, left lung (10%) – this was considered a preexisting abnormality; service connection was granted because this condition, which existed prior to military service, permanently worsened as a result of service * entitlement to nonservice-connected pension was deferred pending additional evidence and information 10. In the processing of this case an Army Review Boards Agency (ARBA) staff medical doctor provided a review of the applicant's available military service records, dated 26 March 2017. a. The ARBA senior medical advisor found the applicant: (1) did not meet medical accession standards for EPTS atresia right pulmonary artery with secondary hypoplastic right lung or compensatory emphysema left lung in accordance with (IAW) AR 40-501 (Standards of Medical Fitness), chapter 2 (Medical Fitness Standards for Enlistment, Appointment, and Induction) and following the provisions set forth in AR 635-40; (2) did not meet medical retention standards for symptomatic EPTS atresia right pulmonary artery with secondary hypoplastic right lung and compensatory emphysema left lung IAW AR 40-501, chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement), and following the provisions set forth in AR 635-40; and (3) did meet medical retention standards for EPTS vision problems (myopia, etc.) and miscellaneous medical and/or behavioral conditions IAW AR 40-501, chapter 3, and following the provisions set forth in AR 635-40. b. He found the applicant's medical conditions were duly considered during his medical separation processing. c. The ARBA senior medical doctor found no evidence of a medical disability or condition which would support a change to the character or reason for the discharge in the applicant's case. 11. On 29 March 2017, the applicant was provided a copy of the advisory opinion in order to allow him the opportunity to submit comments or a rebuttal. A response was not received from the applicant. REFERENCES: 1. AR 635-40 sets forth policies, responsibilities, and procedures 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 may reasonably be expected to perform. Separation by reason of disability requires processing through the physical disability evaluation system. Chapter 3 (Policies) provides in: a. paragraph 3-1 (Standards of unfitness because of physical disability), the mere presence of an 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 requirement of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating; and b. paragraph 3-3 (Conditions existing before active military service), according to accepted medical principles, certain abnormalities and residual conditions exist that, when discovered, lead to the conclusion that they must have existed or have started before the individual entered the military service. This includes conditions which medical authorities are in such consistent and universal agreement as to their cause and time of origin that no additional confirmation is needed to support the conclusion that they existed prior to military service. c. paragraph 3-5 (Use of the VA Schedule of Rating Disabilities), only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. 2. AR 635-5 (Personnel Separations – Separation Documents), in effect at the time, prescribed the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army. It also established standardized policy for preparing and distributing the DD Form 214. Table 2-1 (DD Form 214 Preparation Instructions) contains item-by-item instructions for completing the DD Form 214. It shows for item 28, enter the narrative reason for separation as shown in AR 635-5-1 (Separation Program Designator (SPD) Codes) based on regulatory or other authority. 3. AR 635-5-1 provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It lists "Disability, Existed Prior To Service, Physical Evaluation Board" as the narrative reason for separation and the SPD code "JFM" as the appropriate code to assign enlisted Soldiers involuntarily discharged UP AR 635-40, paragraph 4-24b(4). 4. Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. 5. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR considers individual applications that are properly brought before it and 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. In appropriate cases, it directs or recommends correction of military records to remove an error or injustice. The ABCMR will decide cases on the evidence of record; the ABCMR is not an investigative body. DISCUSSION: 1. The applicant contends, in effect, that item 28 of his DD Form 214 should be corrected because he did not have any unfitting medical issues/conditions prior to his entry into military service, but his DD Form 214 shows he was discharged based on disabilities that EPTS. 2. A review of the applicant's available military medical records by the ARBA senior medical doctor found the applicant did not meet medical accession standards for EPTS atresia right pulmonary artery with secondary hypoplastic right lung or compensatory emphysema left lung. This review also found that he did not meet medical retention standards for symptomatic EPTS atresia right pulmonary artery with secondary hypoplastic right lung and compensatory emphysema left lung. 3. VA officials granted the applicant service connection for atresia, right pulmonary artery, with secondary hypoplastic right lung, and compensatory emphysema, left lung. Both conditions were considered as preexisting abnormalities, which EPTS, and it was determined that they were permanently worsened as a result of his short period of service. Accordingly, the VA granted the applicant service-connection. 4. The evidence of record shows that according to accepted medical principles, certain abnormalities and residual conditions exist that, when discovered, lead to the conclusion that they must have existed or have started before the individual entered the military service. 5. Based on the evidence of record, and in the absence of evidence to the contrary, it is presumed that the applicant's discharge UP AR 635-40, paragraph 4-24(b)(4), was administratively correct and in compliance with applicable regulations in effect at the time with no indication of procedural errors which would have jeopardized his rights. Considering the facts of this case, the narrative reason for separation (i.e., Disability, EPTS, PEB) and the SPD Code (i.e., JFM) were appropriate, correct, and equitable. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160002682 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002682 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2