IN THE CASE OF: BOARD DATE: 18 February 2021 DOCKET NUMBER: AR20200001445 APPLICANT REQUESTS: in effect, through Counsel, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to reflect the following: * physical disability retirement in lieu of physical disability discharge with severance pay * rank/grade of sergeant (SGT)/E-5 in lieu of specialist four (SP4)/E-4 APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Counsel’s letter * DD Form 214 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, United States Code, section 1552(b); however, the ABCMR conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. Counsel states in a letter to the ABCMR he is representing the applicant in his Department of Veterans Affairs (VA) disability claim and that the applicant is requesting a records correction to show his rank/grade as SGT/E-5. 3. The applicant states the VA is improperly withholding benefits without any reason for doing so or due process of law. His angina with inferior wall ischemia should be service-connected and be rated at 30 percent. He was improperly discharged with a rating of 20 percent. Additionally, his rank/grade should be corrected to show SGT (promotable (P))/E-5 instead of SP4/E-4. 4. The applicant enlisted in the Regular Army on 2 June 1980 and was awarded the Military Occupational Specialty (MOS) 11B (Infantryman). 5. The applicant’s DA Form 2-1 (Personnel Qualification Record – Part II) shows he was promoted to the rank/grade of SGT/E-5 on 7 December 1985. 6. A DA Form 3349 (Physical Profile), shows on 26 August 1987, the applicant was given a permanent physical profile rating of “3” (P3) for upper extremities due to an old fracture of the cervical spine. He was restricted to wearing a backpack up to 30 pounds and lifting up to 40 pounds, but could otherwise participate in all functional activities and aerobic conditioning exercises. 7. A memorandum from the Orthopedic Service at Landstuhl Regional Medical Center, dated 15 September 1987, shows the applicant’s permanent physical profile restricted him wearing his helmet as tolerated and carrying a backpack up to 30 pounds, which caused trouble with his unit in that he was not able to do many of the things he was expected to do. The applicant has a fusion of the cervical vertebrae with an excellent result and there was no indication for additional surgery, but it was strongly recommended he have a change of MOS. He should remain in the military and there is no reason why he could not do so. 8. On 19 January 1988, his commander’s letter of evaluation stated the applicant was unable to perform all of the duties required of him in an Infantry Company, due to his P3 physical profile rating. His commander further states there have been repeated problems with the applicant due to lack of initiative, use of physical profile to avoid work, and total unprofessional attitude. He recommended the applicant’s discharge from the service. 9. On 5 February 1988, the applicant underwent an MOS Medical Retention Board (MMRB) and the MMRB recommended the applicant’s referral to the Army Physical Disability System as his assignment limitations were so restrictive as to preclude satisfactory performance in an MOS in which the Army had a requirement. 10. A DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), shows the applicant accepted nonjudicial punishment (NJP) under Article 15 of the UCMJ for without authority failing to go at the time prescribed to his appointed place of duty on 4 February 1988. 11. On 9 March 1988, the applicant was referred to a Medical Evaluation Board (MEB). 12. A second DA Form 2627 shows the applicant was considered for NJP under Article 15 of the UCMJ on 26 March 1988 for without authority failing to go at the time prescribed to his appointed place of duty on 5 March 1988 and on 19 February 1988 and for willfully disobeying a lawful order to get into Mission Oriented Protective Posture Level IV (MOPP IV) on 20 February 1988. On 4 April 1988 the applicant indicated on the form he did not accept NJP but demanded trial by court-martial. 13. On 13 April 1988, his commander’s letter of evaluation stated the applicant was unable to perform all of the duties required of him in an Infantry Company, due to his P3 physical profile rating. His commander further states there have been repeated problems with the applicant due to lack of initiative, use of physical profile to avoid work, and total unprofessional attitude. It further states the applicant was pending UCMJ action. He recommended the applicant’s discharge from the service. A hand-written remark on this letter of evaluation states, “reduced to E-4 in court-martial.” 14. The applicant’s service records are void of documentation pertaining to his court- martial. 15. A DA Form 4187 (Personnel Action), dated 12 May 1988, shows the applicant was reduced in rank/grade to SPC/E-4 and his new date of rank was 12 May 1988. 16. The applicant’s MEB Narrative Summary (NARSUM), dated 24 May 1988 shows: * the applicant sustained a fracture of the cervical vertebra of C-5 and C-6 in March 1986 after a collision of military vehicles, after which he was placed in traction and received a cervical spine fusion between C-5 and C-6 the next day * the applicant repeatedly returned to the clinic requesting an MEB, but after repeated examinations, x-rays, and evaluations, it was not felt he could be boarded for medical reasons related to his neck * the applicant began complaining of dizzy spells and was persistent in requesting changes to his physical profile rating to restrict his participation in physical training, wearing a helmet and wearing a gas mask because it made him dizzy, but his permanent profile was not altered as it was not indicated * his general examination was completely normal and he had a full range of motion * he was referred to a medical board because of his complaints and the fact that he has been unable to perform his duties required by his MOS and his unit, although he could perform full duty without restriction if he wanted to stay in the service 17. A DA Form 3947 (MEB Proceedings) shows an MEB convened on 30 June 1988 to consider residuals from old fractures of C-5 and C-6 to the applicant in March 1986. The applicant was referred to a Physical Evaluation Board (PEB) and he concurred with the MEB findings and recommendation on 7 July 1988. 18. A DA Form 199 (PEB Proceedings) shows: * a PEB convened on 14 July 1988 and found the applicant physically unfit for the condition of subjective neck pain with normal range of motion, status post arthrodesis of fractured C5 and C6 vertebra, VA Schedule for Rating Disabilities (VASRD) Codes 5299-5002 * the applicant had activity limitations imposed by permanent physical profile which precluded adequate performance of the normal duties associated with his office, grade, rank, or rating in the rank of SP4 and an MOS of 11B * his separation from the service with severance pay and a disability rating of 10 percent was recommended 19. A second DA Form 199 shows: * a formal PEB convened on 4 August 1988 and affirmed the findings and recommendations of the informal PEB from 14 July 1988 * the applicant was found physically unfit for the condition of subjective neck pain with normal range of motion, status post arthrodesis of fractured C5 and C6 vertebra, VASRD Codes 5299-5002 * his separation from the service with severance pay and a disability rating of 10 percent was recommended 20. On 4 August 1988, the applicant acknowledged he read the findings and recommendations of the PEB and the letter explaining his rights and agreed with the recommendations. 21. 520th Personnel Service Company Orders 8-13, dated 25 August 1988 discharged him from the Regula Army no later than 27 September 1988, due to physical disability that did result from a combat injury, with a disability rating of 10 percent and authorization for severance pay in the rank/grade of SP4/E-4. 22. The applicant’s DD Form 214 shows he was honorably discharged on 9 September 1988 after 8 years, 3 months, and 3 days due to physical disability with severance pay. Item 4a (Grade, Rate or Rank) shows SP4 and item 4b (Pay Grade) shows E-4. 23. The applicant has not provided a copy of his VA Rating Decision and it is not in his available records for review. 24. 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 may compensate the individual for loss of civilian employability. 25. 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 VA rating does not establish an error or injustice on the part of the Army. 26. Title 38, CFR, Part IV is the VA’s schedule for rating disabilities. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge. As a result, the VA, operating under different policies, may award a disability rating where the Army did not find the member to be unfit to perform his duties. 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. 27. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: a. The applicant is applying to the ABCMR seeming to request they reverse the Veterans Benefits Administration’s findings that his “unstable angina with inferior wall ischemia with a 30% evaluation, effective February 14, 2005” is not service connected. He states: “The VA is improperly withholding the benefits without any reason for doing so without any due process of law.” b. The Record of Proceedings details the applicant’s military service and the circumstances of the case. His DD 214 shows he entered the regular Army on 6 June 1980 and was honorably discharged on 9 September 1988, being separated with disability severance pay under provisions in paragraph 4-24e(3) of AR 635-40, Physical Evaluation for Retention, Retirement, or Separation (15 February 1980). c. The applicant sustained fractures of his fifth and sixth cervical vertebrae in March 1986, and underwent cervical fusion for this injury the following day. Unfortunately, this former infantryman was unable to return to full duty. On 28 September 1987, the applicant was placed on a permanent duty limiting physical profile for neck pain from an “old fracture, cervical spine.” d. A medical evaluation board found this condition to fail the medical retentions standards of AR 40-501, Standards of Medical Fitness. On 7 July 1988, the applicant agreed with the board’s findings and recommendation, and his case was referred to a physical evaluation board (PEB) for adjudication. e. On 4 August 1988, his formal PEB found this condition to be unfitting for continued service, derived and applied a 10% disability rating to the condition, and recommended he be separated with disability severance pay. The applicant agreed with the formal PEB’s findings and recommendation on the same day, and was subsequently discharged. Neither the MEB or PEB mention any cardiac condition in the then 27-year-old infantryman. f. Review of the applicant’s health records in JLV show his first visit to for a heart condition was sometime in early 1999, and he was seen by cardiology in April 1999. He was diagnosed with a cardiac condition in 2001. These records also how the applicant has a 30% service connected disability rating from the VA for “Arteriosclerotic Heart Disease.” g. There is no evidence the applicant had any cardiac condition while in the Army. The Veterans Benefits Administration operates under authority granted by Congress to the Department of Veterans Affairs, and its activities are executed under a different set of laws (Title 38 of the U.S. Code) than those of the Department of Defense and the Military Services laws (Title 10 of the U.S. Code). As such, the ABCMR has no authority over or the ability to direct actions of the Department of Veterans Affairs. h. It is the opinion of the ARBA medical advisor that the Army Review Boards Agency has no authority over or the ability to direct actions of the Department of Veterans Affairs, and therefore the applicant’s request should be denied. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined relief was not warranted. Based upon the available documentation and the findings and recommendation of the medical advisor, the Board concluded there was insufficient evidence of an error or injustice which would warrant a change to the applicant’s military record. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XX :XXX :XXX DENY APPLICATION 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. 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. REFERENCES: 1. Title 10, United States 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 ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency is responsible for administering the Army physical disability evaluation system and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). 3. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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 office, grade, rank, or rating. 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. 4. Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement). The Department of Veterans Affairs Schedule for Rating Disabilities (VASRD). VASRD is used by the Army and the VA as part of the process of adjudicating disability claims. It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service. This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation. 5. 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. 6. Title 38 U.S. Code 1110 (General - Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 7. Title 38 U.S. Code 1131 (Peacetime Disability Compensation - Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 8. Army Regulation 635-5 (Separation Documents), in effect at the time, prescribed the separation documents that must be prepared for Soldiers upon retirement, discharge, or release from active duty service or control of the Active Army, to include the DD Form 214 (Certificate of Release or Discharge from Active Duty). The instruction for completion of items 4a and 4b state to enter active duty grade of rank and pay grade at the time of separation. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200001445 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1