IN THE CASE OF: BOARD DATE: 21 September 2021 DOCKET NUMBER: AR20210010793 APPLICANT REQUESTS: in effect, * reconsideration of his previous requests for a physical disability separation or retirement * unemployment compensation * personal appearance APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Board of Veterans’ Appeals decision, dated 18 May 2020 FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Numbers AC87-07801 on 15 February 1989, AR2000047112 on 27 March 2001, and AR2001063099 28 on February 2002. 2. The applicant, in effect, states his unsatisfactory performance for malingering should be changed to medical discharge with full benefits or an Army disability retirement, unemployment compensation, and military relief. He is considered totally disabled due to individual employability. Injuries concerning these disabilities would have been recognized if he would have been given x-rays prior to discharge. He is a victim of prejudice. 3. The applicant's request for unemployment compensation does not fall within the purview of the Board and is not discussed further in this record of proceedings. 4. On 23 March 1982, the applicant underwent a medical examination for the purpose of enlistment. The applicant disclosed he was diagnosed with fracture left iliac bone, with sprain, left hip, on 5 November 1976, at the age of 15. 5. The applicant enlisted in the Regular Army for a period of 3 years on 29 December 1982. He was awarded the military occupational specialty (MOS) 19D (Cavalry Scout). 6. The applicant accepted nonjudicial punishment on 19 April 1984 for failure to go at the time prescribed to his appointed place of duty. His punishment consisted of a reduction to pay grade E-2 (suspended), a forfeiture of pay and restriction (suspended) and extra duty. 7. The applicant was counseled on: * 3 August 1984 for missing physical training (PT) formation and PT * 18 September 1984 for his overall job performance; his overall job performance had been unsatisfactory; every time he is told to do something he always has some kind of excuse or he is always being loud and boisterous, saying things like: why does he have to do this, nobody else is doing this; this shows he has a bad attitude and a lack of interest in what he is doing, i.e. job performance 8. On 11 September 1984 a bar to reenlistment was imposed against the applicant based on his being absent without leave (AWOL), misconduct and unsatisfactory performance. 9. The applicant was counseled on: * 5 October 1984 for failing to perform his duties in a professional manner; his attitude was apathetic; his appearance is substandard * 9 October 1984 for failing to have his uniform prepared for inspection 10. A sworn statement from the physician’s assistant (PA)/medical officer for the 2/3 ACR, Fort Bliss, TX, dated 10 October 1984 states: [The applicant] has been seen since 7 August 1984 for alleged left hip pain. On first evaluation the PA considered the possibility of a stress fracture of his left femoral head which would be consistent with the location and type of pain. The PA obtained numerous x-rays to include a bone scan to rule out a fracture. The PA has also consulted him twice to the orthopedic screener (Major B_) for WBAMC. Both exams done by Major B_ have been essentially normal exams. His last exam done 9 October 1984, findings inconsistent with degree of injury and physical location were noted. [The applicant] has been seen a least 14 documented times in the last two months. The PA, and Major B_, suspect malingering and abuse of sick call privileges. [The applicant’s] unit has been notified to take appropriate legal/disciplinary actions. 11. The applicant was counseled on 11 October 1984 for being found asleep … when questioned why, he stated the sergeant major whose detail he had been on had given him 2 hours off and told him to report back at 1100. Upon checking with the sergeant major, it was found no such instructions had been given and that the sergeant major had told the personnel to report back to their unit. He was absent from his place of duty at a time when everyone was busy and he was needed. 12. The applicant accepted nonjudicial punishment on 18 October 1984 for disobeying a lawful order and being disrespectful in language and deportment toward a sergeant first class. His punishment consisted of a reduction to pay grade E-2, a forfeiture of pay and extra duty. 13. On 1 November 1984, the applicant underwent a mental status evaluation. The Report of Mental Status Evaluation shows his behavior was normal. He was fully alert and oriented. His mood was unremarkable. His thinking was clear with normal thought content, and memory good. It was determined he had the metal capacity to understand and participate in the proceedings and was mentally responsible. There was no evidence of psychosis. 14. The applicant was counselled on 1 November 1984 to notify him that chapter 13 separation proceedings were being initiated because of his inability to successfully work within the military system. This is a general discharge under honorable conditions, he may encounter certain prejudices in the civilian market as a result of this discharge. 15. On 21 November 1984, the applicant was recommended for elimination from the Army for unsatisfactory performance. He was notified he had been recommended for separation under the provisions of chapter 13, AR 635-200 for unsatisfactory performance. The specific reason for this recommendation are apathetic attitude and poor military performance. The recommended character of service was general under honorable conditions. He was advised of the following rights: * to consult with consulting counsel * to submit statements on his own behalf * to obtain copies of documents sent to the separation authority supporting the proposed separation action. * to present his case before an administrative board * to request appointment of military counsel for representation if an administrative board is convened 16. The applicant acknowledged receipt of the notification of separation on 21 November 1984. He elected to waive consideration of his case before a board and a personal appearance before a board, and appointment of military counsel for representation. He elected to submit statements on his own behalf; however, no statements were submitted. He acknowledged that if he received a discharge certificate/character of service which is less than honorable, he may make application to the Army Discharge Review Board or the Army Board for Correction of Military Records for upgrading; however, he realized that consideration by either board does not automatically imply upgrading. He acknowledged he understood that he may withdraw any waiver of rights up until final action by the separation authority. 17. The applicant received a general, under honorable conditions, discharge on 14 December 1984 under chapter 13, AR 635-200 for unsatisfactory performance. He was credited with 1 year, 11 months, 16 days net active service. His separation code is JHJ and reenlistment code RE-3. 18. The applicant submitted an appeal to the Board of Veterans’ Appeals for entitlement to service connection for a left hip disability. His case was adjudicated on 31 December 1985. It was determined a preservice left hip disability was not aggravated by peacetime service. Entitlement to service connection for a left hip disability was not established. The appeal was denied. 19. The applicant submitted an application to the Army Discharge Review Board (ADRB). On 23 January 1992, the ADRB determined that he was properly and equitably discharged. 20. The applicant provides a copy of a Board of Veterans’ Appeals decision dated 18 May 2020 that states a 40 percent evaluation is assigned for chronic low back strain with degenerative arthritis of the spine from 15 January 2015. 21. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. Chapter 13, in effect at the time, contains policy and outlines procedures for eliminating enlisted personnel found to be for unqualified for further military service because of unsatisfactory performance. Paragraph 13-1 provides for the discharge of individuals for unsatisfactory performance when the member will not develop sufficiently. 22. 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. 23. Title 38, USC, 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. 24. 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. 25. 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 again applying to the ABCMR requesting an upgrade of his 14 December 1984 under honorable conditions discharge, and in essence, a referral to the Disability Evaluation System (DES). b. The Record of Proceedings outlines and multiple ROPs detail the applicant’s military service and the circumstances of the case. His DD 214 shows he entered the regular Army on 29 December 1982 and was discharged on 14 December 1984 under the provisions provided in chapter 13 of AR 635-200, Personnel Management – Enlisted Personnel (5 July 1984): Separation Unsatisfactory Performance. c. Because of the period of service under consideration, there are no encounters in AHLTA or documents in iPERMS. d. This request was previously denied in full three times by the ABCMR; 15 February 1989 (AC87-07801), 27 March 2001 (AR2000047112), and again on 28 February 2002 (AR2001063099). Rather than repeat their findings here, the board is referred to the record of proceedings for those cases. This review will concentrate on the new evidence submitted by the applicant. e. The only new documentation submitted with the application is a VA rating decision dated 18 May 2020 which shows he received his first disability rating (10%) effective 12 August 1993; and the 6 May 2020 Board of Veterans’ Appeals results upon which the ratings decision was based. f. There is no evidence the applicant had any medical condition which would have failed the medical retention standards of chapter 3, AR 40-501 prior to his discharge. Thus, there was no cause for referral to the Disability Evaluation System. Furthermore, there is no evidence that any medical condition prevented the applicant from being able to reasonably perform the duties of his office, grade, rank, or rating prior to his discharge. g. The documents confirm that he has been awarded multiple VA service connected disability ratings. However, the DES compensates an individual only for condition(s) which have been determined to disqualify him or her from further military service. The DES has neither the role nor the authority to compensate service members for anticipated future severity or potential complications of conditions which were incurred or permanently aggravated during their military service; or which did not cause or contribute to the termination of their military career. That role and authority is granted by Congress to the Department of Veterans Affairs and executed under a different set of laws. h. There is a presumption of regularity in the conduct of governmental affairs which is applied in any review of governmental action. Unless there is substantial credible evidence to rebut the presumption, the governmental action is presumed to have been administered correctly. The applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. There is no evidence in the record nor has the applicant produced sufficient evidence to support the contention that he was unjustly discharged from the Army. The applicant's statements alone do not overcome the government's presumption of regularity. i. It is the opinion of the ARBA medical advisor that neither upgrade of his discharge based upon a medical condition nor a referral to the DES is warranted. BOARD DISCUSSION: 1. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 2. The Board carefully considered the applicants request, supporting documents, evidence in the records, and regulatory guidance. The Board considered the applicant's statement, the medical records, and the review and conclusions of the advising official. Based upon a preponderance of the evidence, the Board concurred with the medical advisory opinion finding insufficient evidence the contested medical conditions failed to meet retention standards during his period of service. Therefore, the Board determined referral to DES for consideration of a medical separation is not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XX :XXX :XX 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 to amend the decision of the ABCMR set forth in Docket Number AC87- 07801 on 15 February 1989, AR2000047112 on 27 March 2001, and AR2001063099 28 on February 2002. 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 38, USC, Section 1110 (General - Basic Entitlement) states that 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. 2. Title 38, USC, Section 1131 (Peacetime Disability Compensation - Basic Entitlement) states that 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. 3. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. Chapter 13, in effect at the time, contains policy and outlines procedures for eliminating enlisted personnel found to be for unqualified for further military service because of unsatisfactory performance. Paragraph 13-1 provides for the discharge of individuals for unsatisfactory performance when the member will no develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier. a. An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 4. 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. 5. Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement. Once a determination of physical unfitness is made, the PEB rates all disabilities. The VA Schedule for Rating Disabilities 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. 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. Paragraph 2-11 states applicants do not have a right to a formal hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210010793 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1