IN THE CASE OF: BOARD DATE: 8 November 2016 DOCKET NUMBER: AR20150012606 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: 8 November 2016 DOCKET NUMBER: AR20150012606 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: 8 November 2016 DOCKET NUMBER: AR20150012606 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 a correction to his record to show he was medically discharged instead of honorably discharged. 2. The applicant states: a. He injured his neck (dislocated cervical) and lower back during a physical training (PT) test while on active duty in Stuttgart, GE. He also sustained injuries to his knees, ankles, shoulders, and had frequent chest pains among other issues. He was recently awarded a 40 percent service-connected disability rating for his neck, left shoulder, and chest pains. For some reason the Department of Veterans Affairs (VA) did not rate his lower back. He now has a herniated disc and other conditions because he did not seek treatment after his separation from the service. b. He left the service because of his injuries. He did not want to deal with the embarrassment of being flagged (suspension of favorable personnel actions) because he could not pass the PT test. He did not want to risk not being promoted to sergeant because he could not pass the PT test. If he had the correct information and knowledge he now has, he would have requested a medical board as his medical conditions have worsened in the last 10 years since his separation. If it were not for his injuries, he would have been a proud high ranking noncommissioned officer and not regretting the fact that he cannot retire from the military. He would like to obtain the same benefits as other service members receive for serving their country with dignity and pride. c. This action would also remove a great financial burden as well since his wife has not been able to obtain a job where they live. Their financial situation is worsening each day. Although he finally obtained a good paying job, their debts from the years of his wife's unemployment and his inability to obtain part-time employment because of his physical conditions have reached a very bad point. He would at least have the opportunity to purchase groceries from the commissary, which would greatly assist his financial situation, provided his record were corrected to show a medical separation (with entitlement to retirement benefits). 3. The applicant provides his Standard Form (SF) 600 (Health Record – Chronological Record of Medical Care), DA Form 2807-1 (Report of Medical History), DD Form 2808 (Report of Medical Examination), DD Form 214 (Certificate of Release or Discharge from Active Duty), VA HealtheVet Personal Information Report, and two letters from his spouse and the VA. 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 the cases 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. 2. The applicant enlisted in the Regular Army (RA) on 11 July 2000 and he held military occupational specialty 42L (Administrative Specialist). 3. He provided seven SFs 600 showing he received medical treatment on/for: * 15 October 2003 – dizziness and vomiting * 31 December 2003 – allergies * 24 April 2004 – chest pain * 12 January 2004 – chest pain * 30 April 2004 – chest pain * 10 June 2004 – neck pain * 17 October 2004 – ankle pain; he was assessed as having mild Achilles and right knee suprapatellar tendonitis 4. His records contain and he also provided the following: * DD Form 2807-1 he completed on 6 May 2005 for the purpose of his separation from the Army – he indicated on the form his medical conditions of back pain since 2003; shoulder, neck, ankle, knee, and chest pain since 2004; and left knee surgery to remove excess bone * DA Form 2808 showing he underwent a medical examination on 10 May 2005, for the purpose of his separation – the form indicated he had no significant changes to his health since his last physical examination and he was found qualified for service and did not note any unresolved injury or condition 5. A review of his record showed no permanent profiles indicating he had physical limitations. 6. He was honorably released from active duty on 10 July 2005, under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 4, by reason of "Completion of Required Active Service." He completed 5 years of active service. 7. He also provided the following: a. A HealtheVet Personnel Information Report, dated 21 January 2015, listing his health problems since 2013 of hyperglyceridemia, shoulder pain, knee arthralgia, heartburn, low back pain, and medical treatment received for those conditions. b. A letter from the VA, dated 8 July 2015, wherein he was provided a current summary of his VA benefits with a service-connected evaluation of 40 percent. c. A letter from his spouse, dated 15 July 2015, wherein she reiterated the applicant's RA service. She stated she supported his argument for a medical discharge. She also stated that the applicant sustained several injuries while on active duty preventing him from obtaining good PT scores and promotion recommendations. The applicant was very disappointed with the treatment he received from the VA for his back pain. 7. In a medical review, dated 11 August 2016, the Army Review Boards Agency (ARBA) Senior Medical Advisor, a medical doctor, reiterated the applicant's request. The ARBA medical advisor stated: a. A review of the available documentation found no evidence to support a medical discharge in accordance with Army Regulation (AR) 40-501 (Standards of Medical Fitness). b. The documentation included a DD Form 214 and DA Form 2808 from May 2005 that revealed a PULHES with all 1's (indicating no permanent profiles or physical/psychological limitations). The clinical evaluation on the separation medical examination showed no abnormalities. The applicant responded that he had no significant changes to his health since his last physical examination. On the last page of the DA Form 2808, the examiner summarized that the Soldier was a healthy male with no evidence of an unresolved injury or condition. c. A review of the active duty medical records provided by the applicant found no condition that would require referral to a medical evaluation board. A review of the electronic medical records found no encounters revealing potentially unfitting conditions. The VA letter, dated 8 July 2015, indicating a 40 percent rating for service-connected disability was noted. REFERENCES: 1. AR 635-200, in effect at the time, set forth the requirements and procedures for administrative discharge or release from active duty of enlisted personnel. Chapter 4 stated a Soldier would be separated upon expiration of enlistment or fulfillment of a service obligation. 2. AR 40-501, chapter 3, in effect at the time, provided for the separation of an individual found to be unfit by reason of physical disability, he/she must be unable to perform the duties of his/her office, grade, rank or rating. Members with conditions listed in this chapter were considered medically unfit for retention on active duty and were referred for disability processing. 3. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, established the Army Physical Disability Evaluation System (PDES) according to the provisions of Title 10, U. S. Code, Chapter 61, and Department of Defense (DOD) Directive 1332.18 (Disability Evaluation System (DES)). It set forth policies, responsibilities, and procedures that apply in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. a. If a Soldier was found unfit because of physical disability, the regulation provided for disposition of the Soldier according to applicable laws and regulations. b. Soldiers were referred into the PDES system when it was determined that they did not meet physical standards for enlistment, appointment and/or induction in accordance with chapter 2 of AR 40-501, or they no longer met medical retention standards in accordance with chapter 3, AR 40-501. c. The regulation states a Soldier who was found unfit by a physical evaluation board because of physical disability may be permanently retired if he or she had a disability rating of 30 percent or more as determined by Department of the Army. 4. Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. The VA does not make a determination of whether the medical condition is disqualifying for retention in the Army. DISCUSSION: 1. The evidence of record shows statutory and regulatory guidance provides for Army medical personnel to rate conditions determined to be physically unfitting which were incurred or aggravated during the Soldier?s period of service. Furthermore, the condition can only be rated to the extent that the condition limits the performance of military duty. 2. The evidence of record does not show nor has the applicant provided evidence showing he had an unfitting medical condition which required processing through the PDES. In fact, an Army medical doctor reviewed his military medical records and the medical evidence the applicant provided, to include his VA determination letter, and found he had no permanent medical profile which would have limited or hindered his ability to perform his Army PT test while on active duty. While he purports he was not able to perform his PT and thus was not eligible for promotion, he has not provided evidence to support his contention. The evidence he provided shows he was fit for retention or separation and that he was released upon completion of his required active service obligation. 3. The VA operates under its own policies and may compensate a veteran for any medical condition which they determined to be service connected. Whether that condition was medically disqualifying for retention is not relevant in the VA's determination. As such, the fact that the VA gave the applicant a disability rating for his medical conditions does not establish an error occurred in his separation processing nor does it establish that he should have been processed through the PDES for a determination of fitness or unfitness. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150012606 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150012606 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2