ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 11 March 2021 DOCKET NUMBER: AR20200001609 APPLICANT REQUESTS: change honorable discharge to medical retirement APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-authored letter * Letter from applicant’s spouse * Department of Veterans Affairs benefits letter * Medical Record * Discharge Orders FACTS: 1. The applicant did not file within the three-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. The applicant requests a permanent disability retirement based off the medical condition and injury sustained while on active duty. He states he sustained a head injury while on active duty which resulted in lifelong grand mal seizures. The United placed him on desk duty and was told he could not drive. He was informed he could not reenlist and should wait for his term of service to expire. He was never processed for a medical separation which he believes was an injustice to him and his family. When he left active service he was told to file a claim with the Department of Veterans Affairs (DVA) and he was immediately given 40% for his seizures. 3. The applicant included a self-authored statement in which he expresses that he joined the Army to fulfill his civic duty and give back to the country he loved and was proud to live in. He describes how he learned the army traits of a soldier including following orders. He states he was in training and was told not to show weakness or complain. He followed orders even after he was hit in the head during training and did not complain. Several months after the head injury he experienced a grand mal seizure. He states he was taken to the emergency room on post. He could not tell the medical staff where he was or even his wife’s name. He was released after several hours and received no further treatment or evaluation after this seizure. However, following the seizure, his status and duties were changed, he was restricted to a desk, not allowed to participate in field missions, handle a weapon or drive a vehicle. These restrictions remained until his discharge. During this time, he experienced pedi mal seizures multiple times a day. He was told again to be tough and not complain. When his term of service expired he was advised not to mention the medical issue as it could impact his discharge and future employers would view this as a dishonorable discharge. Two weeks following his discharge he suffered three grand mal seizures in one day. He spend a week in the hospital and has continued to suffer from seizures to this day. 4. The applicant’s wife provided a written statement in support of the application. She states that during his time in the army, the applicant suffered a head injury. A few weeks later he had a grand mal seizure and while in the hospital could not remember where he was, his or her name. She goes on the state he was restricted to desk duty and was not permitted to drive. Since they lived off post, she had to drive him to work of over a year. She had to quit her job to be his driver. She says the applicant continued to have issues with small seizures and when questioned, they were told it was no big deal. She also state had three grand mal seizures two weeks after his discharge and was hospitalized for a week. At this time, he was finally placed on medication to control his seizures. She feels he should have been medically separated from the Army and received treatment instead of being told he would be viewed as dishonorable for seeking help for this condition he suffered while serving his country. 5. The applicant included a letter from the DVA showing he was awarded a service connected disability with a 40% disability rating. He also provided a consultation sheet from his medical record dated 6 November 1987 that shows the applicant was treated for “new onset seizure”. He also included a chronological record of medical care from his health record that states patient is not allowed to drive in Texas for 1 year. 6. The applicant provided his discharge orders dated 21 September 1988. The orders state the applicant was relieved from active duty, not by reason of physical disability. The effective date of discharge is listed as 16 December 1988. 7. The applicant enlisted in the Regular Army on 6 April 1984. He entered active service on 3 January 1985. He was awarded the Military Occupational Specialty (MOS) of 62E (Heavy Construction Equipment Operator). 8. A Disposition Form with the subject Notification of MOS/Medical Retention Board Proceedings dated 15 August 1988 shows that the applicant’s commander was notified that the applicant had been identified to have a permanent physical profile with a 3 or 4 in one or more of the PULHES factors. The commander was notified that the applicant would be required to attend a MOS/Medical Retention Board (MMRB) to determine his ability to physically perform in a worldwide field environment. The MMRB was scheduled for 19 August 1988 at 0800 hours. A Disposition Form with the subject Unit Commanders Evaluation dated 15 August 1988 shows the commander stated the applicant is unable to physical perform in his MOS safely due to his present physical limitation of possible seizures. A physical profile, as reflected on a DA Form 3349 (Physical Profile) or DD Form 2808, is derived using six body systems: "P" = physical capacity or stamina; "U" = upper extremities; "L" = lower extremities; "H" = hearing; "E" = eyes; and "S" = psychiatric (abbreviated as PULHES). Each body system has a numerical designation: 1 meaning a high level of fitness; 2 indicates some activity limitations are warranted, 3 reflects significant limitations, and 4 reflects one or more medical conditions of such a severity that performance of military duties must be drastically limited. Physical profile ratings can be either permanent or temporary. 9. A memorandum to the applicant’s commander with the subject Summary of MOS/Medical Retention Board dated 23 August 1988 shows the results of the MMRB and the recommendation that the applicant be referred to the US Army Disability System. Another memorandum to the applicant’s commander with the subject Medical Evaluation Board/Physical Evaluation Board Referral dated 19 September 1988 directs that the applicant be scheduled for a Medical Evaluation Board (MEB) and to coordinate scheduling the MEB with the Medical Treatment Facility Physical Evaluation Board Liaison Officer (PEBLO). 10. A Statement of Intent for FY89 Holiday Early Transition Program shows the applicant elected to separate on 16 December 1988 instead of his established ETS of 2 January 1989. 11. The applicant was discharged on 16 December 1988 with 3 years 11 months and 14 days of active service. His DD Form 214 show a character of service of honorable, separation code of LBK, and narrative reason for separation as expiration term of service – holiday early transition program. 12. 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. 13. 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. 14. 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 requesting a permanent disability retirement, so in essence, a referral to the Disability Evaluation System. He states: “Sustained a head injury while on active duty which resulted in lifelong grand mal seizures. Unit placed me on desk duty and I was told I could not drive. I was informed I could not reenlist and should ETS. I was never processed for a medical separation which I believe was an injustice to myself and family. When I ETS’d, I was told to file a claim with the VA and I was immediately given 40% for my seizures.” b. The Record of Proceedings details the applicant’s military service and the circumstances of the case. The applicant entered the regular Army 3 January 1985 and was honorably discharged on 16 December 1988 under authority provided by paragraph 16-12 of AR 635-200, Personnel Separations – Enlisted Personnel (22 January 1988): “Expiration of Term of Service – Holiday Early Transition Program.” c. The applicant was seen in an emergency department for his first seizure on 6 November 1987. The history was of a tonic-clonic seizure of unknown duration in a patient with no prior seizures and no recent head trauma. Neurology found a normal examination, ordered both a CT scan and EEG, placed him on a temporary profile limiting him from driving and other activities where a sudden loss of consciousness would be problematic, and directed him to follow-up with neurology after the studies had been completed. d. The applicant was referred to an MOS/Medical Retention Board (MMRB) on 15 August 1988. From the commander’s statement required by the Board: “SPC {Applicant} is unable to physically perform in his PMOS safely due to his present physical limitation of possible seizures. SPC {Applicant}'s PMOS duties includes the operation of heavy equipment to include Bull dozers, Bucket Loaders, Graders and Scrapers.” e. When the MMRB convened on 23 August 1988, the Medical Officer Advised the board that the applicant’s “profile limitations are so prohibitive that they would preclude retraining and reclassification into another MOS.” The MMRB’s recommendation: “In view of the findings, the board recommends that SPC {Applicant} be referred to the U. S. Army Disability System.” f. The applicant should have immediately been entered into the DES. Even though he later signed a memorandum stating he desired to ETS on his holiday rather than the scheduled ETS date of 2 January 1989, that was not a valid option/election. g. Paragraph 7-1 of AR 40-400, Patient Administration, states in part: “If the Soldier does not meet retention standards, an MEB is mandatory and will be initiated by the physical evaluation board liaison officer (PEBLO).” h. Paragraph 4-18f(2) of AR 635-40, Physical Evaluation for Retention, Retirement, or Separation (13 December 1985) states: (2) A member is eligible for consideration for physical disability benefits if his physical defects (a) Were incurred or aggravated while entitled to basic pay. (b) Were, not the result of intentional misconduct or willful neglect. (c) Were not incurred during a period of unauthorized absence. i. The applicant had been eligible for and Army Regulation required his referral to disability processing system. j. There is no evidence the applicant was aware of or had been counseled on the requirements and benefits of processing through the DES, or declined processing through the DES in any way k. Given the current documentation, it is the opinion of the Agency Medical Advisor that his long overdue referral to the DES is clearly warranted. l. In the event he is permanently retired for physical disability, not only is he due all retirement pays from the date of retirement to present, it is the opinion of the ARBA medical advisor that he be refunded, to the extent it can be verified, all out of pocket medical and health insurance monies paid by him for him and his dependents between the date of his discharge and the date his retirement takes effect. Had the applicant been appropriately retired in 1989, both he and his family would have been TRICARE eligible and so unlikely to have incurred few, if any, of these expenses. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined partial relief was warranted. Based upon the available documentation and the findings and recommendation of the medical advisor, the Board concluded there was sufficient evidence to warrant referring the applicant’s medical records to the IDES system for further evaluation to consider whether a change in the applicant’s narrative reason for separation is warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :XX :XXX :XXX GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by referring his records to the Office of The Surgeon General for review to determine if the disability evaluation he received from the Army accurately depicted his conditions as they existed at the time. a. If a review by the Office of The Surgeon General determines the evidence supports amendment of his disability evaluation records, the individual concerned will be afforded due process through the Disability Evaluation System for consideration of any additional diagnoses (or changed diagnoses) identified as having not met retention standards prior to his discharge. b. In the event that a formal PEB becomes necessary, the individual concerned will be issued invitational travel orders to prepare for and participate in consideration of his case by a formal PEB. All required reviews and approvals will be made subsequent to completion of the formal PEB. c. Should a determination be made that the applicant should be retired for disability, these proceedings serve as the authority to issue him the appropriate separation retroactive to his original separation date, with entitlement to all back pay and allowances and/or retired pay, less any entitlements already received. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to changing the narrative reason for separation. 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. 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 38 U.S. Code, section 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. 3. Title 38 U.S. Code, section 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 4. Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. Chapter 16, in effect at the time, contains policy and outlines procedures for selected changes in service obligations. Paragraph 12 (Holiday Early Transition Program) states: the Christmas- New Year holiday period is established in an annual DA circular in the 612 series. The specific holiday early transitioning schedule is announced in a Milper message. Soldiers may be considered for early release prior to the expiration of their terms of service in conjunction with the Christmas-New Year holiday period when specifically authorized and subject to the required criteria. 5. Army Regulation 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 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. 6. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR 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. //NOTHING FOLLOWS//