IN THE CASE OF: BOARD DATE: 2 March 2017 DOCKET NUMBER: AR20150015800 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: 2 March 2017 DOCKET NUMBER: AR20150015800 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: 2 March 2017 DOCKET NUMBER: AR20150015800 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 correction of his records to show he was medically retired. 2. He states he served during three tours in the Republic of Vietnam (RVN) and he was diagnosed with hearing loss in 1980, thyroid problems in 1982, and he also suffers from post-traumatic stress disorder (PTSD). He explains when he became ill with thyroid problems, he received treatment at the Department of Veteran Affairs (VA) Hospital, Durham, NC. He adds that he received radiation treatment and drank radioactive iodine water. He states he was never asked about or treated for PTSD while on active duty. 3. He provides a self-authored statement. 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 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 was inducted into the Army of the United States on 1 April 1968. He completed training and he was awarded military occupational specialty 11B (Light Weapons Infantryman). Many of his earlier records, including his DD Form 214 and DA Form 20 (Enlisted Qualification Record), are not available for review. 3. Item 5 (Oversea Service) of his DA Form 2-1 (Personnel Qualification Record-Part II) shows his overseas service during his early period of service as follows: * RVN from 11 September 1968 to 15 July 1969 * RVN from 29 May 1970 to 5 January 1972 4. On 30 January 1976, the applicant enlisted in the Regular Army. Item 5 (Oversea Service) of his DA Form 2-1 shows his overseas service during his later period as follows: * Europe - Germany from 25 April 1973 to 13 February 1976 * Republic of Korea from 1 December 1977 to 29 November 1978 * Europe - Germany from 8 July 1980 to 10 January 1983 5. On 18 June 1981, nonjudicial punishment (NJP) was imposed against the applicant for assaulting another Soldier with the intent to cause grievous bodily harm and for committing an indecent assault upon a female German National on 6 June 1981. 6. The applicant's record is void of his notification from the Department of the Army (DA) Qualitative Management Program (QMP). However, in "Comment 2" subject: Correction of Military Records, the Chief, Separation and Appeals Branch, Military Personnel Center, stated on 17 July 1981, the applicant was notified that DA had reviewed his records and determined he did not demonstrate the professional ability by his performance of duty or maintain standards of conduct which set an example for younger Soldiers. A DA bar to reenlistment was imposed under the QMP. The board cited two NJPs and five substandard Noncommissioned Officer Evaluation Reports (NCOERs) as the bases for his bar to reenlistment. 7. The applicant submitted an appeal to the DA imposed bar to reenlistment. On 21 March 1983, his appeal was denied. The military personnel representative stated the board's disapproval was based on the applicant's average evaluation score of 88.7 being well below that of his peers (119.03); and his performance, conduct, and potential not meeting the standards expected of a Soldier of his grade and experience. The board stated the applicant would be separated at his current expiration term of service. 7. His DD Form 214 (Certificate of Release or Discharge from Active Duty) and 215 (Correction to DD Form 214) show on 7 April 1983, the applicant was honorably discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 4, expiration term of service. He had completed 14 years, 11 months, and 17 days of total active service. 8. On 13 February 2017, the ABCMR obtained an advisory opinion from a psychiatrist, Army Review Boards Agency (ARBA), who states the evidence provided does not support the applicant's request for a medical retirement. She states: a. A VA Discharge Summary, dated 30 January 1998 was reviewed. This document diagnoses the applicant with dysthymia, PTSD, hypertension, and hypothyroidism. An ABCMR Record of Proceedings, dated 5 October 2006, indicates the applicant was found to be 70 percent service connected for PTSD by the VA as of 18 October 1999. b. The applicant’s military records are void of any Behavioral Health diagnosis to include PTSD. There is also no documentation of any PTSD symptoms. There is no evidence in the applicant’s military records that shows he failed to meet military the medical retention criteria in accordance with Army Regulation 40-501 (Standards of Medical Fitness). c. While the applicant's VA rating supports his post service diagnosis of PTSD, it does not provide evidence of an in-service PTSD diagnosis nor does it support his assertion that a military medical discharge/retirement is warranted. It is important to understand that the VA operates under different rules, laws and regulations when assigning disability percentages than the Department of Defense (DOD). The VA will compensate for all disabilities felt to be "unsuiting." The DOD, however, does not compensate for "unsuiting" conditions. It only compensates for unfitting conditions. The applicant’s condition was not felt to be unfitting when he was on active duty as evidenced by the fact that there is no indication in his military records that he failed to meet the military retention standards in accordance with Army Regulation 40-501. d. It is also important to note that DOD does not compensate service members for anticipated future severity or potential complications of conditions that were incurred during active military service. This role is reserved for VA. A review of the applicant’s available service records indicates he did not suffer from a medically unfitting condition while on active duty. Accordingly, a referral of his record for consideration of a military medical discharge/retirement is not warranted. 9. On 13 February 2017, the advisory opinion was forwarded to the applicant for his acknowledgement and/or response. No response was received. REFERENCES: 1. Army Regulation 40-501 provides that for an individual to be found unfit by reason of physical disability, he/she must be unable to perform the duties of his office, grade, rank or rating. Performance of duty despite impairment would be considered presumptive evidence of physical fitness. 2. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the 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. It provides for a medical evaluation board that is convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501, chapter 3. Disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. a. Paragraph 2-1 provides that 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 member reasonably may be expected to perform because of his or her office, rank, grade, or rating. The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated. b. Paragraph 2-2b(1) provides that when a member is being processed for separation for reasons other than physical disability (e.g., retirement, resignation, reduction in force, relief from active duty, administrative separation, discharge, etc.), his or her continued performance of duty (until he or she is referred to the PDES for evaluation for separation for reasons indicated above) creates a presumption that the member is fit for duty. Except for a member who was previously found unfit and retained in a limited assignment duty status in accordance with chapter 6 of this regulation, such a member should not be referred to the PDES unless his or her physical defects raise substantial doubt that he or she is fit to continue to perform the duties of his or her office, grade, rank, or rating. c. Paragraph 2-2b(2) provides that when a member is being processed for separation for reasons other than physical disability, the presumption of fitness may be overcome if the evidence establishes that the member, in fact, was physically unable to adequately perform the duties of his or her office, grade, rank, or rating even though he or she was improperly retained in that office, grade, rank, or rating for a period of time and/or acute, grave illness or injury or other deterioration of physical condition that occurred immediately prior to or coincidentally with the member's separation for reasons other than physical disability rendered him or her unfit for further duty. 3. 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, however, is not required by law to determine medical unfitness for further 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. Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge, or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency. DISCUSSION: 1. The applicant argues, in effect, that he should have been medically retired due to his medical condition of PTSD. 2. The evidence of record shows a DA bar to reenlistment was imposed under the QMP on 17 July 1981. The board cited two NJPs and five substandard NCOERs as the bases for the bar to reenlistment. He appealed the bar to reenlistment, but his appeal was denied and he was subsequently allowed to remain in the military until his expiration term of service. 3. A review of the applicant's available service records revealed that a psychiatrist indicated he did not suffer from a medically unfitting condition while on active duty. Although his records now reveal that he is in receipt of a 70 percent disability rating from the VA for service-connected PTSD, there is no evidence and he did not provide any to show he had a medical unfitting condition while on active duty which required processing through the PDES. 4. Nevertheless, the fact that the applicant was awarded a 70 percent disability rating from the VA is not sufficient evidence to conclude that he should have been medically retired. The VA is not required by law to determine medical unfitness for further military service. The VA 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. Consequently, the applicant's medical conditions, although not considered medically unfitting for military service at the time of processing for discharge, qualify him for VA benefits based on an evaluation by that agency. 5. An award of a VA rating does not establish entitlement to medical retirement or separation. The VA is not required to find unfitness for duty. Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service connected. Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. The Army must find unfitness for duty at the time of discharge before a member may be medically retired or separated. 6. No medical evidence has been presented by the applicant to demonstrate an injustice in the medical treatment received in the service. Accordingly, consideration of his record for a military medical discharge/retirement is not warranted. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150015800 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150015800 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2