IN THE CASE OF: BOARD DATE: 11 April 2017 DOCKET NUMBER: AR20150017187 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: 11 April 2017 DOCKET NUMBER: AR20150017187 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: 11 April 2017 DOCKET NUMBER: AR20150017187 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, correction of his DD Form 214 (Certificate of Release or Discharge) to show he retired due to medical conditions. 2. The applicant states: a. He completed 17 years of active service and he was separated under the Qualitative Management Program (QMP). b. He has been diagnosed with the following medical conditions: post-traumatic stress disorder (PTSD), migraine headaches, fibromyalgia, and irritable bowel syndrome (IBS). He has also been rated by the Department of Veterans Affairs (VA) as totally and permanently disabled due to his service-connected disabilities. Therefore, he believes he should have been medically retired. 3. The applicant provides VA medical records for 2005 through early 2016. 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. On 25 June 1976, the applicant enlisted in the Regular Army (RA). He remained on active duty through continuous reenlistments and he was promoted to the rank/pay grade of sergeant first class/E-7 on 1 May 1989. 3. He received an annual noncommissioned officer evaluation report (NCOER) for the period covering June 1990 through May 1991. This evaluation states in: a. Part IIc (Authentication) – "SM refuses to sign." b. Part IIIf (Duty Description – Counseling Dates from Checklist/Record) – Shows he was counseled twice. c. Part IVa (Values/NCO Responsibilities) – He received a "No" rating for "Is committed to and shows a sense of pride in the unit – works as a member of the team." The supporting comments indicated the applicant had constant disagreements with the chain of command that resulted in his inability to work as a team player. The report also indicated that he was counseled on two separate occasions. d. Part IVd (Leadership) – he received a "needs improvement" rating. The supporting comments indicate the applicant's inability to work as a team player required his transfer to another facility in Saudi Arabia and that he lacked initiative in ensuring that ration supplements were acquired and distributed. e. Part IVf (Responsibility and Accountability) – the supporting comments indicate the applicant did not assume responsibility of mess section equipment upon assumption of his new position. f. Part V (Overall Performance and Potential) – The rater rated his potential for promotion and service in positions of greater responsibility as "marginal," and indicated in the comments that the applicant would not put forth the extra effort required of an outstanding food service sergeant and that his lackadaisical attitude reflected on the food service provided during Operation Desert Storm. The senior rater rated his performance and potential as "fair." 4. The applicant received a relief-for-cause NCOER for the period covering June 1991 through September 1991. The evaluation states in: a. Part IIIf – he was counseled twice. b. Part IVa – he received a "No" rating for, "is committed to an shows a sense of pride in the unit – works as a member of the team" and "Is honest and truthful in word and deed." The supporting comments indicate the applicant aggressively sought a Letter of Acceptance to leave the unit and that he lied to the battalion command sergeant major. c. Part IVd – he received a "needs improvement" rating. The supporting comments indicate that he put his needs before those of his Soldiers and that his section had the lowest morale of all sections in the company. e. Part IVe (Training) – he received a "needs improvement" rating. The supporting comments indicate he failed to train his subordinates. f. Part IVf – he received a "needs improvement" rating. The supporting comments indicate he failed to ensure mission readiness of mess kitchen transport, failed to maintain dining facility equipment, and he displayed a lackadaisical attitude. g. Part V – His rater rated his overall potential for promotion as marginal. 5. The applicant applied to this Board for removal of two negative NCOERs with derogatory comments and ABCMR Docket Number AC95-09985 shows his case was denied on 25 September 1996. The record of proceedings noted the applicant was notified on 10 July 1992 that the Calendar Year 1992 Master Sergeant Selection Board determined he should be barred from reenlistment under the QMP based on the presence of two substandard NCOERs in his official military personnel file (OMPF). a. On 10 August 1992, he appealed his bar to reenlistment. b. His appeal was denied by the Standby Advisory Board on 15 March 1993. 6. On 30 June 1993, he was honorably discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 16-8, due to a reduction in authorized strength. His DD Form 214 shows he completed 17 years and 6 days of total active service for which he received separation pay. 7. His records do not contain the memorandum informing him that he had been selected for discharge under the QMP. 8. His records are void of medical documentation that shows his conditions prior to discharge. 9. He submitted medical documentation from the VA for the period of service from 2005 through 2016. 10. On 16 November 2016, an advisory opinion was obtained from the Army Review Boards Agency Senior Medical Advisor. He stated: a. During a records search, no medical treatment records were found. b. The VA rated the applicant's disabilities for: * PTSD at 50 percent due to a parachute accident at Fort Bragg, NC and while in the Persian Gulf War * migraine headaches at 30 percent * degenerative arthritis of the spine/low back pain at 20 percent * paralysis of median nerve at 10 percent * fibromyalgia at 10 percent * irritable colon at 10 percent * eczema at 10 percent * scars at 0 percent * overall service connected rating at 80 percent c. The VA records provided by the applicant covering the period from 2005 through early 2016 were reviewed. In addition to the conditions listed above these records also includes evidence that he suffers from major depressive disorder (single moderate), traumatic brain injury (parachute accident), presbyopia, tobacco use disorder, tubular adenoma (2001), allergic rhinitis, and obesity. The applicant has 20 current active outpatient medications prescribed for his medical and behavior health conditions. d. The applicant met medical retentions standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3 (Retention Medical Fitness Standards), and following the provisions set forth in Army Regulation  635-40 that were applicable to the applicant's era of service. His medical conditions were duly considered during the separation processing. e. A review of the available limited service documentation found no evidence of a medical disability or condition which would support a change to the character or reason for the discharge in this case. 11. The applicant was provided a copy of the advisory opinion for an opportunity to respond. He did not respond. REFERENCES: 1. Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel. Paragraph 16-8 of this regulation sets forth the requirements for early separation of enlisted personnel due to reduction in force, strength limitations, or budgetary constraints. Soldiers separated under this paragraph will be characterized as honorable. 2. Army Regulation 601-280 (Army Retention Program) paragraph 10-5 governs screening procedures and states, in pertinent part, that appropriate Department of the Army Selection Boards will review the performance portion of the OMPF, the DA Form 2A (Personnel Qualification Record – Part I) and DA Form 2-1 (Personnel Qualification Record – Part II), and other authorized documents. From these documents, the board will evaluate past performance and estimate the potential of each service member to determine if continued service is warranted. 3. Army Regulation 601-280, paragraph 10-8, provides that a Soldier may appeal the bar to reenlistment imposed under the QMP based on improved performance and/or material error in the Soldier's record when reviewed by the selection board. The appeal must be submitted within 45 days of completion of the Statement of Option and will include substantive comments on the Soldier's performance and potential by each member of the chain of command. Paragraph 10-10 provides that the appeal is considered by the QMP Appeals Board normally conducted in conjunction with Centralized Enlisted Selection Boards. The QMP Appeals Board will consider the Soldier's potential for future service and promotion; review the Soldier's complete record "de novo"; and notify the Soldier's commander (lieutenant colonel or above) of the results of the appeal. 4. Chapter 3 of Army Regulation 40-501, as amended, provides the standards for medical fitness for retention and separation, including retirement and states, in pertinent part, that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board. Those members who do not meet medical retention standards will be referred to a physical evaluation board for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition. 5. Title 38, U.S. Code, 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. 6. Army Regulation 15-185 (ABCMR) provides Department of the Army policy, criteria, and administrative instructions regarding an applicant's request for correction of a military record. Paragraph 2-9 (Burden of Proof) states the ABCMR begins its consideration of each case with presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. The applicant contends he should have been medically retired due to service-connected disabilities vice being separated under the QMP. 2. There is no evidence which shows the applicant was not medically qualified to perform his assigned duties or that he failed to meet medical retention criteria. Further, there is no evidence to show his selection for separation under the QMP was the result of any medical conditions or physical defect. In fact, the evidence of record shows the two negative NCOER's the applicant received were the basis for his recommendation for separation under the QMP. 3. An award of a VA rating does not establish entitlement to medical retirement or separation. The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated. The VA operates under its own policies and regulations and provides compensation when a medical condition is determined to be service connected. Furthermore, the VA can evaluate a veteran over his or her lifetime, adjusting the percentage of disability based upon the agency's examinations and findings. 4. The fact that the VA awarded the applicant a combined disability rating of 80 percent is a prerogative exercised within the policies of that agency. The VA does not determine medical unfitness for service, but only that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Therefore, a rating awarded by the VA after the applicant was discharged does not, in and of itself, establish physical unfitness for Department of the Army purposes. 5. The Department of the Army Selection Board reviewed the performance portion of the applicant's OMPF and other authorized documents to evaluate his past performance and to estimate his potential for continued service. The applicant was properly notified of his bar to reenlistment and afforded the opportunity to appeal. The available evidence shows that he elected to appeal the bar; however, it was denied and he was ordered to be separated in accordance with Army Regulation 635-200, paragraph 16-8. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017187 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017187 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2