IN THE CASE OF: BOARD DATE: 31 March 2016 DOCKET NUMBER: AR20140018331 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 IN THE CASE OF: BOARD DATE: 31 March 2016 DOCKET NUMBER: AR20140018331 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. IN THE CASE OF: BOARD DATE: 31 March 2016 DOCKET NUMBER: AR20140018331 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: * that his regular retirement from the Army be changed to a disability retirement in the grade of sergeant first class (SFC) because of bursitis with a minimum of 50 percent disability * retirement as an SFC from 1978 to 1988 with correction of back pay and allowances for that period * retirement in the rank of first lieutenant (1LT) from 1988 to 1992 or at the rank of a lieutenant colonel (LTC) commensurate with his general schedule (GS) rating of GS-13 when he requested to be called back to active duty in 1992 for 3 years 2. The applicant states he was honorably discharged and stayed out about 60 days. He was given a physical at Maxwell Air Force Base and was told he could not enlist due to bursitis, even though he had over 20 years of service. He should have been given a disability retirement by regulation. He also states he has been trying to get copies of records, morning reports, and medical evacuation flight plans for the 5th Special Forces Support Group. 3. The applicant provides: * letter from the Department of Veteran Affairs (VA), dated 6 March 2014, stating that the applicant has been rated 100 percent permanently and totally disabled for service-connected disabilities (specific disabilities not identified) * DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) for 5 periods of service from 7 October 1958 to 21 March 1977 * Standard Forms 88 (Report of Medical Examination) for the dates – * 6 December 1977 * 16 April 1974 * 29 May 1969 * 6 October 1958 * selection of military medical records from 1973 through 1976 * selection of VA medical records from 1985 and 1991 * Standard Form 88, dated 6 December 1977, first page only (second page not provided) * two military personal qualification records * VA Notification of Personnel Action showing the applicant was employed as a GS employee security officer at a VA Medical Center in 1996 * selected civilian medical documents from 2009 and 2013 in support of a VA disability claim CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b) (10 USC 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 applied to the ABCMR in 1978 to reverse the decision of the U.S. Army Military Personnel Center (MILPERCEN) to promote him to SFC and deny his request for retirement. On 17 January 1979, the ABCMR made the following findings. a. The applicant's separation from the service on 18 April 1978 was properly accomplished in accordance with pertinent regulations and that his request for retirement as an exception to policy was properly denied by MILPERCEN in accordance with the policy in effect at the time. b. That, after giving due consideration to MILPERCEN's recommendation for denial in the applicant's case based on their previous decision, it appears that the best interests of the Army and that of the applicant would have been better served by allowing him to retire upon completion of over 20 years active service in the grade of staff sergeant (SSG)/E-6. c. The evidence of record raises a reasonable doubt as to whether the applicant satisfactorily served in the grade of SFC/E7. In retrospect, if he was in fact qualified for promotion, since during the period of time in question he was cited on two occasions for driving under the influence of alcohol, was relieved from duty as a platoon sergeant and received nonjudicial punishment, plus a letter of reprimand. d. The applicant's completion of over 20 years active duty, his participation in combat and his receipt of an award for valor appeared to entitle him to special consideration in the ultimate determination of his case. e. That in consideration of the foregoing findings and conclusions, the interest of justice would best be served by voiding his discharge and placing him in an excess leave status from 19 April 1978 through 29 April 1978 and in an active duty status on 30 April 1978, thereby putting him in a posture to be placed on the retired list of the Army of the United States in the grade of SSG/E-6 effective 1 May 1978. 3. On 29 January 1979, the ABCMR issued the following decision on the applicant's request that all of the Department of the Army records of the applicant be corrected to show: a. his discharge on 18 April 1978 was null and void, without force or effect; b. he was retained in the Army in an excess leave status from 19 April 1978 through 29 April 1978 for the convenience of the government; c. he was in an active duty status on 30 April 1978; d. that upon application, his request for retirement on 30 April 1978 for length of service in the grade of SSG/E-6 was approved by competent authority on 31 March 1978 as an exception to policy; and e. that, as requested by him, he was placed on the Retired List effective 1 May 1978 with entitlement to pay in pay grade E-6 with over 20 years of active service under the provisions of 10 USC 3914 and 3961. 4. A letter to the applicant from the Department of the Army Reserve Personnel Center, Retirement Services, dated 24 June 1988, notified the applicant that effective 7 April 1988 he had been advanced on the Retired List from the grade of SSG to the grade of second lieutenant (2LT)/O-1, the highest grade in which he served satisfactorily. 5. The applicant's DD Forms 214 show his periods of service, discharge rank, and reason for discharge: * 9 March 1958 to 8 September 1958, honorable, called to active duty for training, U.S. Army Reserve (USAR) * 7 October 1958 to 13 December 1960, honorable, for immediate reenlistment, enlisted pay grade E-4 (Temporary), Regular Army (RA) * 14 December 1960 to 30 September 1966, honorable, for immediate reenlistment, SSG, RA * 1 October 1966 to 2 September 1969, honorable, discharged to accept a commission, SSG, RA * 3 September 1969 to 18 April 1973, honorable, released from active duty under the provisions of Army Regulation 635-100, paragraph 3-58a, annual screening of officers whose degree of efficiency and manner of performance of duty require relief from active duty or elimination from the service, first lieutenant (1LT), USAR, transferred to the USAR Control Group (Standby) * 19 April 1973 to 18 April 1978, honorable, length of service, sergeant first class (SFC), RA * note – this DD Form 214 was voided by a 29 January 1979 decision by the ABCMR addressed in the consideration of evidence above and the applicant was honorably retired in the pay grade of SSG effective 1 May 1978 6. There is no evidence of record that the applicant was recalled to active duty from the Retired List in 1992. 7. The applicant provides a copy of a VA Notification of Personnel Action, effective 5 September 1996, showing he was employed as a security officer at a VA Medical Center in the grade of GS-12, step 2. Hand written on the form, GS-12 is lined out and GS-13, step 5, is penned in (author unknown). 8. The applicant's Standard Forms 88 and Standard Forms 93 (Report of Medical History) show: a. Standard Form 88, dated 6 October 1958, administered at the Armed Forces Entrance and Examination Station, Springfield, Massachusetts, for the purpose of a enlistment in the RA, shows all physical conditions normal except for a body mark/scar/tattoo, all 1's in his physical profile, and that the applicant was qualified for military service. Summary of defects and diagnoses is void. b. Standard Form 88, dated 29 May 1969, administered at Martin Army Hospital, Fort Benning, Georgia, for the purpose of entry on active duty, shows all physical conditions normal, all 1's in his physical profile, and that the applicant was qualified for active duty commensurate with age, rank, experience, and branch of service. Summary of defects and diagnoses is void. No record of unfitting conditions were noted. c. Standard Form 88, dated 16 April 1974, administered at Martin Army Hospital, Fort Benning, Georgia, for the purpose of a permanent change of station, shows all physical conditions normal, all 1's in his physical profile, and that the applicant was qualified for active duty commensurate with age, rank, experience, and branch of service. Summary of defects and diagnoses shows the notation "N/P" (None Present). No record of unfitting conditions were noted. d. Standard Form 88, dated 6 December 1977, administered at Fort Benning for the purpose of an annual examination shows all physical conditions normal, all 1's in his physical profile, and that the applicant was qualified for active duty commensurate with age, rank, experience, and branch of service. Summary of defects and diagnoses is void. e. Standard Form 93 (only page 1 of 2 pages provided), dated 6 December 1977, completed for the purpose of an annual examination only the first of two pages have been provided. The applicant's self-reported medical history on the Standard Form 93 shows he had swollen or painful joints, broken bones, and bursitis. The second page which would have medical comments on these self-reported conditions is not provided. However, the Standard Form 88 completed by the medical personnel in conjunction with this Standard Form 93 for the applicant's annual examination shows no record of any unfitting conditions. 9. The applicant provides copies of selected Army medical clinic records that show that between April 1973 and March 1976, he was seen and treated three times for left knee pain and once for right shoulder pain. X-rays were taken with negative results. Final medical notes by the orthopedic clinic on 16 March 1976 state they cannot determine if the pain is caused by pre-patellar bursitis, chondromalacia patella (abnormal softening of the cartilage of the underside the kneecap), or tendonitis. In each case the applicant was provided pain relief medication, rest, and cane or crutches for a short period of time. 10. The applicant provides two VA medical records from 1989, one showing a complaint of left ankle bursitis which the attending physician determined was tendonitis. The second record was concerning a dermatology condition. The applicant provides three VA medical records from 1991 showing a complaint of left shoulder pain which the attending physician determined to be rotator cuff tendonitis and treated with pain medication and physical therapy. 11. The applicant provides some civilian orthopedic medical records from 2009 and 2013 concerning back pain in support of a 2013 disability claim application to the VA wherein the applicant claims disabilities of lower back, left and right arms, both feet, knees, both shoulders, neck, right thigh, breathing/lungs, post-traumatic stress disorder, arthritis, bursitis, agent orange (Vietnam 1966-1968) and Korea (1971-1972). 12. The Department of the Army Office of the Surgeon General (OTSG) reviewed the applicant's military medical records, to include those listed above, and determined the applicant did not have any unfitting conditions at the time of his retirement that would have warranted review by a medical evaluation board (MEB), physical evaluation board (PEB), and consideration for disability retirement. The applicant was provided a copy of the OTSG advisory but has not provided a response. REFERENCES: 1. Army Regulation 635-100 (Personnel Separations – Officer Personnel), dated 1 February 1969, paragraph 3-58, states that the records of officers on active duty will be screened annually at Headquarters, Department of the Army, Army Active Duty Board, to determine those officers whose degree of efficiency and manner of performance of duty require relief from active duty or elimination from the service. Officers selected for release under this section will be relieved from active duty on the 90th day after receipt of notification, unless they request earlier release. 2. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) 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. Separation or retirement by reason of disability requires processing through the PDES which includes an MEB and a PEB. The regulation states 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 Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating. Army Regulation 40-501 (Standards of Fitness) provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank, or rating. 3. 38 USC 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 disability rating does not establish error or injustice in an Army separation or require a change or correction to an Army separation. An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service. The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while the VA may rate any service connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability. The VA has neither the authority nor the responsibility for determining physical fitness for military service. DISCUSSION: 1. The applicant contends that instead of being retired for length of service in 1978 as he requested and the ABCMR approved, he should have been medically retired because of bursitis. A review of his military medical records shows he had no conditions that were unfitting that would have required consideration under Army Regulation 635-40 for possible disability retirement. In fact, all his medical examinations rated him with all 1's in his physical profile and determined that he was qualified for active duty at his age, rank, and branch of service. His contention that he was denied enlistment in the Air Force due to bursitis after he was discharged does not indicate bursitis was an unfitting condition at the time of his discharge. Further, he provides no evidence to support this contention. 2. The finding of a VA disability following military service, even though it might be service connected, does not establish error in the Army's determination of fitness at the time of retirement or separation. The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while the VA may rate any service connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability after separation from military service. 3. The applicant contends that he should have been retired as an SFC from 1978 to 1988. This contention is without merit. In 1978, the applicant requested the ABCMR to void his promotion to SFC to avoid a continued service obligation and to approve his voluntary retirement as an SSG. The ABCMR approved his request. The ABCMR further found evidence that the applicant did not serve satisfactorily in the rank of SFC. 4. The applicant contends that he should have been advanced on the Retired List to the rank of 1LT. While the applicant was promoted to the rank of 1LT during his service as an officer from 1969 to 1973, he was discharged in 1973 under the provisions of Army Regulation 635-100, paragraph 3-58, for substandard performance. Accordingly, in 1988, the Army determined the highest grade in which he served satisfactorily was 2LT and so advanced him on the Retired List to that grade. The applicant is not eligible for advancement to 1LT. 5. The applicant contends that he should have been advanced to the grade of LTC when he was called to active duty in 1992 since he was employed by the VA as a GS-13. His contention is without merit since GS ratings due not apply to the Army Retired List grade determinations. 6. Concerning the applicant's request for copies of records, morning reports, and medical evacuation flight plans for the 5th Special Forces Support Group, this Board does not have or maintain such records. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20140018331 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20140018331 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2