BOARD DATE: 9 May 2017 DOCKET NUMBER: AR20160000011 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: 9 May 2017 DOCKET NUMBER: AR20160000011 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. BOARD DATE: 9 May 2017 DOCKET NUMBER: AR20160000011 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 discharged. 2. The applicant states he was injured when he went to Desert Storm. He hurt his back and suffered the loss of hearing. He also has balance problems. He was ultimately discharged with an honorable discharge but he thinks it should have been a medical discharge. He now has post-traumatic stress disorder (PTSD) problems. 3. The applicant provides: * DD Form 214 (Certificate of Release or Discharge from Active Duty) Member-1 copy * U.S. Army Reserve (USAR) discharge orders * DD Form 215 (Correction of DD Form 214) * Department of Veterans Affairs (VA) medical records, progress nots, and rating decision 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's complete military records are not available for review with this case. An exhaustive search was undertaken to locate his service records, which are necessary for the discharge review he requested and processing of his case. Unfortunately, they could not be found. However, there were sufficient documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case. 3. The available records show the applicant served in the USAR. He held military occupational specialty (MOS) 36K (Combat Signaler) and he had previously completed 3 years of active service. 4. He entered active duty on 11 October 1990 and subsequently served in Southwest Asia from 30 November 1990 to 22 April 1991. He was assigned to the 644th Transportation Company. 5. He was separated from active duty in the rank/grade of specialist four/E-4 on 16 May 1991. He completed 7 months and 5 days of active service. The applicant provided Member-1 copy of his DD Form 214 which does not show the narrative reason for his separation and related information such as the regulatory authority that directed his release from active duty. 6. He was honorably discharged from the U.S. Army Reserve on 17 May 1994 in accordance with Army Regulation (AR) 135-178 (Enlisted Administrative Separation). He was assigned to the 961st Quartermaster Company, McAllen, TX at the time. 7. The Case Management Division requested a medical review of the applicant's case. As a result, the Army Review Boards Agency senior medical advisor rendered an advisory opinion on 16 November 2016. He stated: a.  He reviewed this case for alleged medical condition(s) warranting separation through medical channels. He restated the applicant's military service history and request for medical discharge based on the applicant's statement he was injured during Desert Storm. b.  The applicant's military service treatment record was loaned out to another agency on 29 April 1997 and as of 9 January 2016 had not been returned. There is a memorandum from the Office of the Assistant Secretary of Defense, dated 27 September 2005, notifying the applicant that if he was with his unit from 10 to 13 March 1991, he might have been exposed to a very low level of chemical warfare agents sarin or cyclosarin released during demolitions at Khamisiyah. c.  There were multiple DD Forms 689 (Individual Sick Slip) showing treatment on 4 June 1987 for an eye illness, on 13 November 1990 for a lost filling in a tooth, on 12 March 1991 for back pain and stomach cramps with 1 day on quarters, and on 26 March 1991 for stomach pains and general achy flu-like feeling. d.  The applicant provides a VA Rating Decision, dated 14 March 2009, with service connection for – * post-traumatic stress disorder (PTSD) 30 percent * tinnitus 10 percent * intermittent disequilibrium due to undiagnosed illness (claimed as balance problems) at 30 percent It is noted that the medical evidence the VA officials used at the time of the rating decision included the applicant's military service treatment record from 7 June 1979 through 4 June 1982 and from 11 October 1990 through 16 May 1991. However, these records were not in the evidence provided by the applicant. e.  The available VA radiology reports show the applicant's lumbosacral spine x-rays, dated 30 September 2005, were negative. Magnetic resonance imaging (MRI) of his lumbar spine without and with contrast, dated 10 February 2007, shows prominent L2-3 right subarticular disc protrusion, focally indenting the thecal sac with right extraforaminal disc protrusion at L4-5 causing mild right neural foraminal narrowing and possible impingement of the existing nerve. Lumbosacral spine series, dated 24 May 2007, with right hemisacralisation of the L5 seen. The study is otherwise unremarkable. f.  Based on review of the available medical records it does not appear the applicant had PTSD or another boardable behavioral health condition(s) warranting entry into the physical disability evaluation system. g.  The applicant appears to have met medical retention standards in accordance with chapter 3 of AR 40-501 (Standards of Medical Fitness) and following the provisions set forth in AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) that were applicable to the applicant's era of service. A review of the available 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. 8. The applicant was provided with a copy of this advisory opinion to give him an opportunity to submit a rebuttal and/or provide the necessary medical documents. He did not respond. REFERENCES: 1. AR 635-40, in effect at the time, established the Army Physical Disability Evaluation System and set forth policies, responsibilities, and procedures that applied 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. Under the laws governing the Army disability system, Soldiers who sustain or aggravate physically unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and/or severance pay benefits: * the disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty for training * the disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence 2. AR 635-40 further states in: a.  Chapter 3 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 Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating. b.  Paragraph 3-1(d) that although the ability of a Soldier to reasonably perform his or her duties in all geographic locations under all conceivable circumstances is a key to maintaining an effective and fit force, this criterion (worldwide deployability) will not serve as the sole basis for a finding of unfitness. c.   Paragraph 3-2b that when a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement creates a presumption that the Soldier is fit. The presumption of fitness may be overcome if the evidence establishes that the Soldier was, in fact, physically unable to adequately perform the duties of his or her office, grade, rank, or rating for a period of time because of a disability. d.  Paragraph 3-3b(1) provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his/her office, grade, rank or rating. 3. AR 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, a physical evaluation board rates all disabilities using the VA Schedule of Rating Disabilities. Chapter 3 lists various conditions that warrant referral to a medical evaluation board. 4. Title 38, United States 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. 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 AND CONCLUSIONS: 1. There were very limited service medical records available for review with this case and the records provided were included in his VA records. His 1991 DD Form 214 confirms he served in Southwest Asia from 30 November 1990 through 22 April 1991. 2. It is unclear what medical condition(s) the applicant believes rendered him unfit for duty during his period of active service from 1990-1991. He appears to assume that since the VA awarded him service-connected disability compensation for a variety of conditions to include PTSD, the Army should have done the same. However, referral into the Army disability evaluation system requires that a designation of "unfit for duty" be made by medical officials before an individual can be separated from the military because of an injury or medical condition. 3. There is no evidence to show the applicant had a permanent physical profile showing an unfitting medical condition existed at the time of his service. It appears he continued to perform his soldierly duties as a member of the USAR until 17 May 1994, when he was administratively discharged. There is no evidence showing he had a disabling condition that rendered him unable to perform the duties required of his MOS or grade. There is also no medical examination showing he warranted entry in the disability evaluation system. 4. If and when identified, diagnosed, evaluated, and rated, a disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and can only be accomplished through the Army disability evaluation system. Only those conditions that render a member unfit for continued military duty at the time of separation will be rated. 5. Whenever there is a disability, 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. 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. 6. Based on the review of the available records, the applicant met medical retention standards in accordance with chapter 3 of AR 40-501, and following the provisions set forth in AR 635-40 that were applicable to his era of service. The medical advisory official found no evidence of a medical disability or condition which would support a change to the reason for the discharge in this case. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160000011 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160000011 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2