BOARD DATE: 17 January 2017 DOCKET NUMBER: AR20150015092 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 BOARD DATE: 17 January 2017 DOCKET NUMBER: AR20150015092 BOARD DETERMINATION/RECOMMENDATION: 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 AC93-05904, dated 1 March 1995. _____________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: 17 January 2017 DOCKET NUMBER: AR20150015092 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, in effect, reconsideration of his prior request for correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to reflect his narrative reason for separation as physical disability with an honorable characterization of service in lieu of a general discharge under the Expeditious Discharge Program (EDP). 2. The applicant states: a. He was severely injured in the jungles of Panama on 13 April 1980, which hindered him from performing his military duties. He informed his company commander that he felt he could not physically perform as a combat infantryman due to the pains in his head, neck, and knees, and his severe migraine headaches. He could not perform at 100 percent on the battlefield due to his traumatic brain injury that resulted from his fall and felt he would potentially jeopardize the lives of his team and/or himself as a result. b. His company commander stated in his DD Form 214 that he was "unattainable for military service" (the intent of this phrase is presumed to convey failure to maintain acceptable standards for retention). At the time he was an injured 20-year old up against his commander, not knowing he had a choice. He was not knowledgeable of military procedures and should have requested legal assistance. Medical records reflect he was injured on active duty and he received a 100-percent service-connected disability rating from the Department of Veterans Affairs (VA) for his injuries. His discharge should have been honorable and based on physical disability. 3. The applicant provides: * self-authored statement, dated 4 August 2016 * letter from the Army Review Boards Agency, dated 27 June 2016 * VA Rating Decision, dated 3 December 2014 * 23 pages of medical records 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 AC93-05904 on 1 March 1995. 2. The applicant enlisted in the Regular Army on 17 October 1978. 3. Multiple DA Forms 2627-1 (Record of Proceedings under Article 15, Uniform Code of Military Justice) show he accepted nonjudicial punishment for the following offenses: * failing to go to his appointed place of duty, to wit: morning parade and reveille on 8 August 1979 * willfully disobeying an order from his superior noncommissioned officer to clean his room on 12 October 1979 * leaving his appointed place of duty as charge of quarters runner on 5 November 1979 * being derelict in his duties on 14 March 1980 4. A DA Form 3647 (Clinical Record Cover Sheet) shows he was admitted to Coco Solo Army Hospital, Panama, on 13 April 1980 after falling approximately 6 feet over a ridge while in the jungle during a training exercise. He hit his head on some rocks and lost consciousness for an undetermined length of time. He was diagnosed with a suspected mild cerebral concussion and a contusion to his right neck. He was released from the hospital back to duty on 15 April 1980 with no change to his physical profile rating. 5. A Coco Solo Army Hospital Nurse's Discharge Summary, dated 15 April 1980, shows he was discharged from the hospital on 15 April 1980. He was on a regular diet and required no equipment and supplies. His condition was listed as "alert; ambulates well; no complaint(s)." He was discharged without the need for a follow-up care appointment. 6. His available service records do not contain documentation indicating: * he was issued a permanent physical profile rating * he suffered from a medical condition, physical or mental, that affected his ability to perform the duties required by his military occupational specialty (MOS) and/or grade or rendered him unfit for military service * he was diagnosed with a medical condition that warranted his entry into the Army Physical Disability Evaluation System (PDES) * he was diagnosed with a condition that failed retention standards and/or was unfitting 7. On 28 May 1980, his immediate commander notified him of his intent to initiate action to discharge him from the Army under the provisions of paragraph  5-31 (EDP) of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel). The commander stated the reasons for this action were the applicant's failure to adapt to military life, unwillingness to comply with the unit's or commander's policy, lack of motivation, lack of self-discipline, and a very poor attitude. The commander recommended characterization of the applicant's service as general under honorable conditions. The commander informed him that the issuance of a less than honorable discharge could preclude his eligibility for many or all veterans' benefits and he could expect to encounter substantial prejudice in civilian life. He also advised him of his right to consult with legal counsel, to submit a statement in his own behalf, to decline the discharge, or to waive any of the aforementioned rights. 8. The applicant acknowledged receipt of the commander's notification of intent to separate him under the provisions of the EDP and voluntarily consented to the separation action. He consulted with legal counsel and was advised of the basis for the contemplated separation from the Army under the provisions of chapter 5 of Army Regulation 635-200, the effect on his future enlistment eligibility in the Army, the possible effects of a general discharge, and the procedures and rights available to him. He acknowledged he understood that he could expect to encounter substantial prejudice in civilian life if he were issued a General Discharge Certificate. He declined to submit a statement in his own behalf. 9. On 28 May 1980, the separation authority approved his discharge under the provisions of Army Regulation 635-200, paragraph 5-31, and directed the issuance of a General Discharge Certificate. 10. On 11 June 1980, he was discharged under honorable conditions under the provisions of Army Regulation 635-200, paragraph 5-31, EDP, failure to maintain acceptable standards for retention. His DD Form 214 shows he completed 1 year, 7 months, and 25 days of creditable active military service. 11. He provided a copy of his VA Rating Decision, dated 3 December 2014, showing he was granted a service-connected disability for the following conditions: * migraine headaches with an evaluation of 50 percent * post-traumatic stress disorder, major depressive disorder, and cognitive impairment with an evaluation of 50 percent * residual head injury with an evaluation of 10 percent 12. The Army Review Boards Agency psychiatrist provided an advisory opinion on 14 December 2016, which stated: a. A review of the military medical records provided by the applicant indicate he was admitted to Coco Solo Army Hospital in Panama on 13 April 1980 after falling off a 6-foot ridge and hitting his head on some rocks during a training exercise. He was diagnosed with mild cerebral concussion and right neck contusion. Physical and neurological examinations were within normal limits. No scalp laceration was noted. b. X-rays of his skull indicated no acute injury from the fall. The X-ray report indicated he had an "unusually greater degree of osteoporosis of the dorsum sellae [part of the sphenoid bone in the skull]. No particular enlargement of the sella turcica [a saddle-shaped depression in the body of the sphenoid bone of the human skull] is noted." This type of finding of osteoporosis of the dorsum sellae is not a finding that occurs secondary to a head injury. X-rays of the cervical spine were normal. He was hospitalized for 2 days, then released. The only treatment he received in the hospital was Robaxin (methocarbamol, a muscle relaxant) and aspirin. c. There is no indication he failed to meet military medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness). There is no indication his mild concussion and neck strain prevented him from successfully performing his military duties. There is insufficient evidence to support his request to change his discharge to honorable, resulting from physical disability. His service records indicate he did not suffer from a medically unfitting condition. 13. He was provided a copy of the advisory opinion on 15 December 2016 and given an opportunity to submit a rebuttal, but he did not respond. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 5, in effect at the time, set forth the basic authority for the separation of enlisted personnel for the convenience of the government. Paragraph 5-31 provided that Soldiers who had completed at least 6 months but less than 36 months of continuous active service on their first enlistment and who had demonstrated they could not or would not meet acceptable standards required of enlisted personnel because of poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential, would be discharged under the EDP. It provided for the expeditious elimination of substandard, nonproductive Soldiers before board or punitive action became necessary. No Soldier would be discharged under this program unless he/she voluntarily consented to the proposed discharge. b. Paragraph 3-7a provides that 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. 2. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency, under the operational control of the Commander, U.S. Army Human Resources Command, is responsible for administering the PDES and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). a. The objectives of the system are to: * maintain an effective and fit military organization with maximum use of available manpower * provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability * provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected b. Soldiers are referred to the PDES: * when they no longer meet medical retention standards in accordance with Army Regulation 40-501, chapter 3, as evidenced in a medical evaluation board (MEB) * receive a permanent medical profile rating of 3 or 4 and are referred by an MOS Medical Retention Board * are command-referred for a fitness-for-duty medical examination * are referred by the Commander, U.S. Army Human Resources Command c. The PDES assessment process involves two distinct stages: the MEB and the physical evaluation board (PEB). The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his or her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are separated receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retirement payments and have access to all other benefits afforded to military retirees. d. The mere presence of medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 3. Army Regulation 635-40 establishes the Army 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. 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. 4. 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 using the VA Schedule for Rating Disabilities. 5. 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. 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 error or injustice on the part of the Army. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The VA does not have the authority or responsibility for determining physical fitness for military service. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. These two government agencies operate under different policies. 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. DISCUSSION: 1. The applicant's records reveal a disciplinary history that includes the acceptance of nonjudicial punishment on four occasions for failing to go to his appointed place of duty, willfully disobeying an order, leaving his appointed place of duty, and being derelict in his duties. 2. He consulted with counsel and was advised of the basis for the contemplated separation from the Army under the provisions of chapter 5 of Army Regulation 635-200, the effect on his future enlistment eligibility in the Army, the possible effects of a general discharge, and the procedures and rights available to him. 3. Discharges for EDP under the provisions of Army Regulation 635-200, paragraph 5-31, are requests for discharge for Soldiers who demonstrated they could not or would not meet acceptable standards required of enlisted personnel because of poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential. It provided for the expeditious elimination of substandard, nonproductive Soldiers before board or punitive action became necessary. There is no evidence indicating he was not properly and equitably discharged in accordance with the regulations in effect at the time, all requirements of law and regulations were not met, or his rights were not fully protected throughout the separation process. Further, his discharge accurately reflects his overall record of service. 4. Although records show he sustained a mild cerebral concussion and a contusion to his right neck during a training exercise while serving in the Regular Army, there is no evidence of record and he did not provide any evidence showing he had a permanent physical profile rating, a diagnosis of a disabling condition that rendered him unable to perform the duties required of his MOS or grade, or a medical examination that warranted his entry into the PDES. Referral into the Army PDES requires a designation of "unfit for duty" before an individual can be separated from the military because of an injury or medical condition. At the time of his discharge, there was no evidence of an unfitting condition that would have warranted his entry into the PDES. 5. In the opinion of the Army Review Boards Agency psychiatrist, there is insufficient evidence to support the applicant's request to change his discharge to honorable based on physical disability. His service record does not indicate he suffered from a medically unfitting condition. 6. His VA Rating Decision shows he was granted service-connected disability for migraine headaches, post-traumatic stress disorder, major depressive disorder, and cognitive impairment residual to a head injury. The fact that the VA granted him a service-connected disability rating for multiple medical conditions after his Army discharge does not prove an error on the part of the Army. A VA service-connected disability rating does not establish entitlement to a "medical discharge" or "medical retirement" from the Army. The VA awards ratings because a medical condition is "service connected" and affects the individual's civilian employability. Operating under its own policies and regulations, the VA has neither the authority nor the responsibility for determining medical unfitness for military duty. Furthermore, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150015092 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150015092 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2