BOARD DATE: 23 May 2017 DOCKET NUMBER: AR20160004050 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: 23 May 2017 DOCKET NUMBER: AR20160004050 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: 23 May 2017 DOCKET NUMBER: AR20160004050 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 records to show he was medically retired by reason of disability instead of honorably released from active duty in 1971. 2. The applicant states even though he served from 16 March 1970 to 29 November 1971, he has suffered from post-traumatic stress disorder (PTSD) and Agent Orange exposure. He feels he has been overlooked for disability retirement because it has permanently affected his life from the time of entering Vietnam to the present. He feels he should be classified as a disability retiree because the Department of Veterans Affairs (VA) considers him 100 percent disabled and he has not been able to hold a job that would substitute what he would have made if he did not go to Vietnam. 3. The applicant provides his VA list of disabilities and summary of benefits. 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 16 March 1970. He completed basic combat and advanced individual training and he was awarded military occupational specialty 11E (Armor Crewman). 3. On 12 August 1970, he departed the Transient Company, U.S. Army Overseas Replacement Station, Oakland, CA, in an absent without leave (AWOL) status. However, he returned to military control on 22 August 1970. 4. On 24 August 1970, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL from 12 to 22 August 1970. His punishment consisted of a reduction to E-1 and a forfeiture of pay. 5. He served in Vietnam from 27 August 1970 to 25 August 1971. Following completion of his tour, he was reassigned to Fort Benning, GA, around October 1971. 6. He signed a Statement of Medical Condition on 29 November 1971 and indicated that he underwent a separation medical examination and there had been no change to his medical condition. 7. He was honorably released from active duty on 29 November 1971 and he was transferred to the U.S. Army Reserve Control Group (Reinforcement) to complete his remaining service obligations. 8. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he completed 1 year, 8 months, and 4 days of active duty. Item 11c (Reason and Authority) of this form shows the entry, "AR 635-200, Separation Program Number (SPN) 21L (Separation for good & sufficient reason when determined by Secretarial authority). 9. There is no indication in his military records that shows: * he was issued a permanent physical profile * he was diagnosed with a medical condition that failed retention standards in accordance with AR 40-501 (Standards of Medical Fitness) * he suffered an illness or an injury that rendered him unable to perform the duties required of his grade or military specialty * he was referred to the Army Physical Disability Evaluation System (PDES) and/or was found to have an unfitting medical condition 10. He provides his VA list of disabilities and summary of benefits. His application was forward to the Army Review Boards Agency psychologist/medical advisor for review. The medical advisor rendered an advisory opinion on 20 December 2016 in the applicant's case. After reviewing the available records, he stated: a. The applicant was in the Army from 16 March 1970 to 29 November 1971. He served in Vietnam with the 5th Infantry Division from 27 August 1970 to 25 August 1971. He was wounded in country and received a Purple Heart. He supplied evidence that he is 100 percent service connected for a variety of conditions, but none of them was what is thought of as a behavioral-health condition. At the time of his discharge, he said his health was as it had been at his previous medical exam. There is no evidence provided of behavioral-problems during his time in the Army, though he was AWOL for about a week and received non-judicial punishment for it, just prior to him going to Vietnam. b. In regard to the referral questions, the applicant’s available records do not at the time of his discharge reasonably support him having had a boardable medical condition; he met standards in AR 40-501 and AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), and based on available behavioral-health evidence, a medical evaluation board referral would not have been appropriate. No medical retention decision point had been reached. c. In conclusion, the applicant met medical retention standards in accordance with chapter 3, AR 40-501, and following the provisions set forth in AR 635-40 that were applicable to the applicant’s era of service. The applicant’s medical conditions were considered at the time of his discharge. 11. The applicant was provided with a copy of this advisory opinion to give him an opportunity to submit a rebuttal and/or additional comments. He did not respond. REFERENCES: 1. AR 635-40 establishes the Army disability evaluation system 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. It provides for medical evaluation boards, which 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 the Soldier's medical qualifications for retention based on the criteria prescribed in AR 40-501. a. 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 office, rank, grade or rating. The Army must find that a service member is physically unfit to reasonably perform his duties and assign an appropriate disability rating before that service member can be medically separated or retired. b. Chapter 3 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. 2. AR 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement. 3. Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities, which were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish an error or injustice in the Army rating. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career. The VA does not have authority or responsibility for determining physical fitness for military service. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. As a result, these two government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment. Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. DISCUSSION: 1. None of the applicant's service medical records are available for review with this case. The available records show he served on active duty from 16 March 1970 to 29 November 1971, including service in Vietnam from August 1970 to August 1971. He provides selected documents from the VA showing he receives 100 percent service-connected disability compensation. 2. There is no evidence that shows he was medically disqualified for retention or separation. Nowhere in his records does it show he was issued a permanent physical profile, was diagnosed with a medical condition that failed retention standards in accordance with AR 40-501, suffered an illness or an injury that rendered him unable to perform the duties required of his grade or military specialty, or was referred to the PDES and/or was found to have an unfitting medical condition. 3. A key element of the Army disability system is the existence of a disabling condition at the time of separation. The Army must find a member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before that member can be separated or retired for disability. 4. He appears to assume that since the VA awarded him service-connected disability compensation, the Army should have done the same. However, referral to the Army disability system requires that a designation of "unfit for duty" before an individual can be separated from the military because of an injury or medical condition. If and when identified, diagnosed, evaluated, and rated, a disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and can only be accomplished through the disability evaluation system. 5. Based on the review of the available records, and as confirmed by medical review, at the time of separation the applicant met medical retention standards that were applicable to his era of service. A review of the available documentation found no evidence of a medical disability or condition which would support a change to the reason for his discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160004050 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160004050 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2