BOARD DATE: 20 December 2016 DOCKET NUMBER: AR20150014004 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ____X___ ___X_____ ___X_____ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 20 December 2016 DOCKET NUMBER: AR20150014004 BOARD DETERMINATION/RECOMMENDATION: 1. As to the issue of years of service, the evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20130016458, on 22 May 2014 and Docket Number AR20140015886, on 21 April 2015. 2. As to the issue of permanent retirement disability percentage, 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. 3. As to the administrative issues related to his DD Form 214, the Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD Form 214 by: * deleting the entry in item 12f and adding the entry 4 years, 7 months, and 15 days * deleting from item 13 the Army Achievement Medal (2nd Award), Overseas Service Ribbon with numeral 2, and the Kuwait Liberation Medal * adding to item 13 the: * Army Achievement Medal (3rd Award) * Kuwait Liberation Medal-Kuwait * Kuwait Liberation Medal-Saudi Arabia * Korea Defense Service Medal * Noncommissioned Officers Professional Development Ribbon with numeral 2 * Overseas Service Ribbon with numeral 3 * adding to item 18 the entry "SERVICE IN SOUTHWEST ASIA FROM 19910126 - 19910519" _____________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. BOARD DATE: 20 December 2016 DOCKET NUMBER: AR20150014004 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 reconsideration of his earlier request to show he retired by reason of completion of 20 years of service. 2. As a new issue, he requests correction of his records to show that he was retired by reason of permanent disability rated at 100 percent (%) vice 70%. He also requests a personal appearance. 3. The applicant states: a. He was placed on the temporary disability retirement list (TDRL) and then removed from the TDRL; however, he was not put on the permanent disability retired list (PDRL) but was permanently retired. Therefore, he should be authorized a full 20-year retirement with all benefits or 100% Concurrent Retirement Disability Pay (CRDP) with full benefits and would like a reevaluation from the U.S. Army Physical Evaluation Board (PEB). b. His DD Form 214 (Certificate of Release or Discharge from Active Duty) indicates he had 16 years and 9 months of service in the air defense artillery (ADA) and 3 years and 5 months of service in the infantry. Also, his third tour in Germany was not included on his DD Form 214. c. In accordance with the Department of Veterans Affairs (VA), he is 100% unemployable and housebound and should be rated by the Army at 100% with full marital and dependent rate, and full benefits and pay. Since his discharge, he has been hospitalized three times for the same diagnosis and diagnosed with a permanent, housebound disability. Therefore, he should be granted 100% combat-related disability from the date of his retirement with full benefits. 4. The applicant provides: * DD Form 214 * three orders, dated between 4 February 1997 and 28 September 2000 * three memoranda, one undated and two dated 30 April 1997 * VA Rating Decision * two pages titled [Title] 10, U.S. Code (USC), section 1201 - Regulars and members on active duty for more than 30 days: retirement CONSIDERATION OF EVIDENCE: 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 Number AR20130016458 on 22 May 2014 and Docket Number AR20140015886 on 21 April 2015. 2. The applicant's issues related to his years of service were previously considered and then reconsidered by the Board. Each application was denied because he did not complete 20 years of active federal service. Therefore, by law he was not entitled to retirement based on 20 years of active federal service. He presents a new issue (medical) in his third application, and as it is related to his total service, it warrants consideration by the Board. 3. The applicant enlisted in the Regular Army on 26 August 1980 and he held military occupational specialty (MOS) 16P (Chaparral Crewmember). His DA Form 2-1 (Personnel Qualification Record) shows: a. He served in Germany from 13 March 1982 to 3 October 1983 (a total of 1 year, 6 months, and 21 days), was promoted to the rank of staff sergeant (SSG)/E-6 on 9 October 1987, and served in Germany a second time from 2 August 1988 to 26 July 1990 (a total of 1 year, 11 months, and 25 days). b. On 30 August 1990, he was assigned to the 3rd Battalion (BN), 2nd ADA, Fort Lewis, WA. He served in Southwest Asia (SWA) with his assigned unit from 26 January to 19 May 1991 (a total of 3 months and 21 days). c. On 20 January 1994, he attended and successfully completed the 15-week 11M Fighting Vehicle Infantryman course conducted at Fort Benning, GA. He was subsequently awarded primary MOS 11M and held MOS 16P as his secondary MOS. d. He served in Korea from 13 July 1994 to on or about 20 May 1995 (a period of 10 months and 8 days). e. On 15 August 1995, he was assigned to Germany. He was subsequently assigned to Landstuhl Regional Medical Center (LRMC), Germany, and medically evacuated to Walter Reed Medical Center (WRMC), Washington, DC. On 5 February 1997, he was assigned to the Medical Holding Company (MHC), WRMC. His service in Germany was from 15 August 1995 to 4 February 1997 (a period of 1 year, 5 months, and 21 days). 4. The applicant provides: a. A memorandum, undated, from the Chief, Inpatient Psychiatry, LRMC, stating the applicant was admitted to Inpatient Psychiatry on 30 January 1997 with a diagnosis of psychosis (not otherwise specified (NOS)). During his treatment, he was suspicious of the staff and his spouse's presence was required for him to accept medication and treatment. b. A memorandum, dated 30 April 1997, from Inpatient Psychiatry Services, WRMC, stating the applicant was admitted to Inpatient Psychiatry in early February 1997 and diagnosed with schizophrenia, paranoid type. During treatment, his spouse's presence was required for him to accept medication and treatment. c. A memorandum, dated 30 April 1997, from Captain (CPT) GTW, Commander, MHC, WRMC, stating it had been determined that the applicant’s period of treatment in this hospital, or elsewhere under the auspices of this hospital, was expected to be prolonged. The statement was furnished in support of the applicant's request for transportation of his dependents, movement and/or storage of household goods, and shipment and/or storage of his privately owned vehicle. 5. The complete facts and circumstances surrounding his disability processing are not known; however, his records contain Orders D111-1, dated 6 June 1997, issued by the U.S. Total Army Personnel Command (PERSCOM), Alexandria, VA, releasing him from his assignment effective 27 June 1997 and placing him on the TDRL in his retired rank/grade of SSG/E-6 effective 28 June 1997 at a combined disability rate of 30%. 6. His DD Form 214 shows he was honorably retired from active duty on 27 June 1997 in the rank of SSG and placed on the TDRL by reason of temporary physical disability. He completed 16 years, 10 months, and 2 days of net active service and had a total of 4 years, 7 months, and 15 days of foreign service during his service in Germany, SWA, and Korea. 7. His DD Form 214 shows the following entries, in part, in: * item 11 (Primary Specialty) – 11M, 3 years, 5 months; 16P - 16 years, 9 months * item 12f (Foreign Service) – 3 years, 10 months, and 8 days 8. Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows the: * Army Commendation Medal (2nd Oak Leaf Cluster or 3rd Award) * Army Achievement Medal (2nd Award) * Army Good Conduct Medal (5th Award) * National Defense Service Medal * Army Service Ribbon * Overseas Service Ribbon with numeral 2 * Kuwait Liberation Medal * Southwest Asia Service Medal with 2 bronze service stars * Driver and Mechanic Badge * Expert Marksmanship Qualification Badge with Rifle Bar (M-16) * Expert Marksmanship Qualification Badge with Hand Grenade Bar 9. Item 18 (Remarks) of his DD Form 214 is void of an entry that shows his service in Southwest Asia. 10. In addition to the awards listed above, item 9 (Awards, Decorations & Campaigns) of his DA Form 2-1 shows the Army Achievement Medal (3rd Award) and the Noncommissioned Officer Professional Development (NCOPD) Ribbon with numeral 2. 11. He provides a VA Rating Decision, dated 6 January 2000, that stated, in part: a. The VA examination was dated 26 July 1999. The VA found his paranoid schizophrenia which was [rated at] 50% had increased to 100% disabling effective 28 June 1997. Entitlement to special monthly compensation payable at the housebound rate was granted effective 28 June 1997. An evaluation of 100% was assigned whenever there was evidence of total occupational and social impairment. b. Outpatient treatment records show in April 1998 he was noted to be able to independently travel, make schedules, and use the phone. However, he had difficulty adhering to a travel schedule. In August 1998, he was improving and in May 1999 his hallucinations were under better control with his medication. c. The 26 July 1999 examination showed he was volunteering at a wildlife rescue center 2-3 hours per week and was still experiencing hallucinations, although they decreased due to his medication. He was oriented to time, place, and person. He was able to give complete answers to questions with some latency. He remained socially isolated due to his condition and the psychological stress he experienced that impacted his ability to work. Outpatient reports showed numerous instances where he and his spouse requested scheduled activities to help him improve his condition. There was no evidence that showed he was confined to his home on a permanent basis. 12. His records contain a letter, dated 18 September 2000, from the U.S. Army PEB. The letter notified the applicant, in part: a. A PEB had informally reviewed his recent periodic medical examination and other available records and recommended his name be removed from the TDRL. Enclosed was the DA Form 199 (PEB Proceedings) that reflected the findings and recommendations of the board. He should pay special attention to the blocks of the form that reflected the PEB's judgement of his present disabilities, how severe they were, the percentage rating for each condition, and the recommended disposition of his case consistent with Army policies. b. Army policy for removing a Soldier from the TDRL required him to show whether he agreed with the findings and recommendations. In making the decision, it was very important that he receive counseling and assistance from the PEB Liaison Officer (PEBLO), Ms. M, telephone number (251)-XXX-XXXX, and he should contact the PEBLO promptly. c. If he submitted a rebuttal and waived a formal hearing, the rebuttal must be based on specific issues and fully justified. He may not be separated or retired without a full and fair hearing if he demanded it. His statement of election must be received by the PEB within 10 days of receipt of this notice. If the PEB did not receive his reply within the required time, he would forfeit his right to make an election and his case would be forwarded to PERSCOM for final processing. 13. The DA Form 199, dated 15 September 2000, shows an informal PEB convened on that date and confirmed his one unfitting disability of paranoid schizophrenia, chronic, continuous. The PEB stated, in part: a. Placed on the TDRL in 1997; this is first reevaluation. Condition continued to be pervasive, with delusions, hallucinations, marked social withdrawal, unemployable. Living at home with spouse, rarely leaves house. Has generally been compliant in maintaining care through VA systems; however, has required several additional hospitalizations due to refusing medication. Rated severe; his condition had not improved to the extent that he was fit for duty b. He was rated under VA Schedule for Rating Disabilities (VASRD) code 9203 and assigned a 70% disability rating. The PEB recommended a permanent disability retirement. 14. This form does not contain the applicant's election or signature; it is presumed he did not return the form with an election within the required time period. 15. Orders D191-2, dated 28 September 2000, issued by the U.S. Army Physical Disability Agency, removed him from the TDRL effective 29 September 2000 and permanently retired him with a 70% disability rating. 16. In a letter, dated 10 November 2008, the U.S. Army Human Resources Command (HRC) notified the applicant that based on the documentation he provided with his request for reconsideration, HRC was able to adjust his previous Combat-Related Special Compensation (CRSC) and his total CRSC was now rated at 100% effective January 2008. 17. On 22 May 2014, the ABCMR denied the applicant's request to correct his DD Form 214 to show he served 20 years of active service. Records confirmed he had 16 years, 10 months, and 2 days of active service as of the date he was placed on the TDRL. 18. On 21 April 2015, the ABCMR denied his request to correct his records to show he completed 18 years of military service. Records confirmed he had 16 years, 10 months, and 2 days of active service. REFERENCES: 1. Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical 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. It states 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. 2. AR 40-501 (Standard of Medical Fitness) 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 using the VASRD. Ratings can range from 0 percent to 100 percent, rising in increments of 10 percent. 3. 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%. 4. 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 higher VA rating does not establish an error or injustice in the Army rating. 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 awards disability ratings to veterans for service-connected conditions and conditions detected after discharge, to compensate the individual for loss of civilian employability. 5. The 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. 6. VASRD code 9203 pertains to schizophrenia, paranoid type, and is rated under the general rating formula for mental disorders. a. A rating of 70% is assigned in cases of occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. b. A rating of 100% is assigned in cases of total occupational and social impairment due to such symptoms as gross impairment in the thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior, persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 7. The Fiscal Year 2004 National Defense Authorization Act provided a 10-year phase-out of the offset to military retired pay due to receipt of VA disability compensation for members whose combined disability rating is 50% or greater. This provision is referred to as CRDP. Members retired under disability provisions must have 20 or more years of service to receive CRDP. 8. AR 600-8-22 (Military Awards) states: a. The Kuwait Liberation Medal-Saudi Arabia, awarded by the Kingdom of Saudi Arabia, was approved on 3 January 1992 and is awarded to members of the Armed Forces of the United States who participated in the Persian Gulf War between 17 January and 28 February 1991. b. The Kuwait Liberation Medal-Kuwait, awarded by the Government of Kuwait, was approved on 9 November 1995 and is awarded to members of the Armed Forces of the United States who participated in the Persian Gulf War between 2 August 1990 and 31 August 1993. c. The Korea Defense Service Medal is authorized for award to members of the Armed Forces of the United States who have served on active duty in support of the defense of the Republic of Korea. The period of eligibility is 28 July 1954 to a date to be determined by the Secretary of Defense. Service members must have been assigned, attached, or mobilized to units operating in the area of eligibility for 30 consecutive or for 60 nonconsecutive days. d. The Overseas Service Ribbon is awarded for successful completion of overseas tours. Numerals are used to denote the second and subsequent awards of the Overseas Service Ribbon. A review of the applicant's records show he was credited with the completion of two overseas tours in Germany and one in Korea. 9. AR 635-5 (Personnel Separations – Separation Documents), in effect at the time, stated for an active duty Soldier deployed to a foreign country with his or her unit during their continuous period of active service enter in item 18 of the DD Form 214 the statement "SERVICE IN (NAME OF COUNTRY DEPLOYED) FROM (inclusive dates for example, YYYYMMDD - YYYYMMDD)." 10. AR 15-185 (ABCMR) states ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. DISCUSSION: 1. By regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time. 2. The available evidence shows the applicant sustained a medical condition that warranted his entry into the disability evaluation system. He appears to have been evaluated by a medical evaluation board that referred him to a PEB. A PEB convened in 1997 and found him unfit due to paranoid schizophrenia. The PEB recommended a 30% combined disability rating and placement on the TDRL with future reexamination. 3. The available evidence also shows a TDRL PEB convened on 15 September 2000 and found the applicant's condition of paranoid schizophrenia still rendered him unfit for military service. The TDRL PEB rated him under VASRD code 9203 and assigned a 70% disability rating based on the severity of his condition at the time. His condition did not meet the criteria required for a 100% disability rating by the Army. The PEB recommended permanent disability retirement with a 70% disability rating. He was notified of his rights and election options but failed to make an election; by doing so, he forfeited his right to make an election or dispute the rating. 4. His physical disability evaluation was conducted in accordance with law and regulations. There does not appear to be an error or an injustice in his case. He has not submitted substantiating evidence or an argument that would show an error or injustice occurred in his case. 5. A disability decision rendered by another agency does not establish an error on the part of the Army. Operating under different laws and its own policies, the VA may award ratings because of a service-connected disability that affects the individual's civilian employability and, unlike the Army, the VA may provide special compensation based on additional factors. 6. The evidence of record confirms he was removed from the TDRL and permanently retired on 29 September 2000 by reason of permanent disability with a 70% rating. Although his orders did not state he was placed on the PDRL, placement on the retired list by reason of permanent disability is the same as placement on the PDRL. His DD Form 214 correctly shows he completed 16 years, 10 months, and 2 days of active service. 7. The evidence of record shows: * he completed 4 years, 7 months, and 15 days of foreign service while his DD Form 214 only shows 3 years, 10 months, and 8 days * he successfully completed two tours of service in Germany and one in Korea and is authorized the Overseas Service Ribbon with numeral 3; however, his DD Form 214 shows the Overseas Service Ribbon with numeral 2 * he served in SWA during a qualifying period for the Kuwait Liberation Medal-Kuwait and Kuwait Liberation Medal-Saudi Arabia; his DD Form 214 only shows the Kuwait Liberation Medal * he served in Korea during a qualifying period for award of the Korea Defense Service Medal which is not shown on his DD Form 214 * he was awarded the Army Achievement Medal (3rd Award) while his DD Form 214 shows the Army Achievement Medal (2nd Award) * he was authorized the NCOPD Ribbon with numeral 2 which is not shown on his DD Form 214 * item 18 of his DD Form 214 does not list his service in SWA from 26 January to 19 May 1991 8. With respect to the number of years he held each MOS, Soldiers may hold a primary and secondary MOS at the same time and the number of years a Soldier holds each MOS may run concurrently. Item 11 of his DD Form 214 correctly shows the number of years he held MOS 11M and MOS 16P, which ran concurrently for more than 3 years. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150014004 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150014004 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2