BOARD DATE: 11 May 2017 DOCKET NUMBER: AR20160001727 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: 11 May 2017 DOCKET NUMBER: AR20160001727 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant amendment of the Army Board for Correction of Military Records decision in Docket Number AR20150002076, dated 22 October 2015. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a. showing he is entitled to back pay and allowances in the rank of staff sergeant/pay grade E-6 for one (1) day of active duty (i.e., 28 July 1972); b. showing he was placed on the temporary disability retired list (with a disability rating of 30 percent) in the rank of staff sergeant/pay grade E-6 effective 29 July 1972 (through 31 October 1976); c. showing he was placed on the permanent retired list (with a disability rating of 40 percent) in the rank of staff sergeant/pay grade E-6 effective 1 November 1976; and d. paying him any pay and allowances he is due as a result of these corrections. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to any increase in his disability ratings. ____________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: 11 May 2017 DOCKET NUMBER: AR20160001727 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 request for an increase in his disability rating from 40 percent (%) to 100% (or a disability rating that is greater than 40%). He also requests payment of back pay he is due as a result of the Board's correction of his records showing he was promoted to the rank of staff sergeant (SSG)/pay grade E-6 prior to being placed on the temporary disability retired list (TDRL). 2. The applicant restates his contention that he should receive a higher disability rating. (He was evacuated from Vietnam in 1969 due to a reaction from an anti-malaria pill that left him with a heart condition. This led to a diagnosis of anemia secondary to glucose-6-phosphatase dehydrogenase (G6PD) deficiency.) He states the condition was not rated by the Medical Evaluation Board (MEB) or the Physical Evaluation Board (PEB). He also states the Board corrected his records and promoted him to SSG (E-6) effective 28 July 1972; however, the Board did not address the issue of his entitlement to back pay. He adds that his efforts to resolve the matter by contacting the U.S. Army Human Resources Command and the Defense Finance and Accounting Service (DFAS) have been unsuccessful. 3. The applicant provides self-authored statements (summarized above) and a 2-page TDRL summary (that was previously provided in support of his original application to the Army Board for Correction of Military Records (ABCMR)). 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 ABCMR in Docket Number AR20150002076 on 22 October 2015. 2. The applicant enlisted in the Regular Army (RA) on 6 September 1963. He was awarded military occupational specialty 140 (Field Artillery Basic). He was promoted to sergeant (SGT)/pay grade E-5 on 29 May 1965. He served in Vietnam from 9 June 1967 thorough 14 May 1968. He was honorably released from active duty on 18 May 1968 and transferred to the U.S. Army Reserve Control Group (Reinforcement). 3. He had a break in military service from 19 May through 12 November 1968. 4. On 13 November 1968, he enlisted in the RA and reentered active duty in the rank of corporal/pay grade E-4. He served in Vietnam from 30 April 1969 through 22 May 1969. He was promoted to SGT (E-5) on 25 March 1970. 5. Headquarters, III Corps Artillery, Fort Sill, OK, letter, dated 27 August 1971, subject: E-6 Promotion Standing List, shows the applicant was placed on the promotion standing list on 21 July 1971. 6. A complete copy of the applicant's MEB/PEB proceedings are not available for review. A TDRL Summary (3 pages), dated 20 July 1976, in pertinent part, shows the diagnosis of G6PD deficiency was addressed by the MEB physician and available for review and consideration by the PEB. (It is noted this document includes the two TDRL pages the applicant provides in support of his request for reconsideration for increased disability rating.) 7. Department of the Army, Office of The Adjutant General, Washington, DC, Letter Orders Number D 7-575, dated 21 July 1972, relieved the applicant from assignment, in the rank of SGT (E-5), effective 28 July 1972 and placed him on the TDRL with a 30% disability rating effective 29 July 1972. 8. Department of the Army, U.S. Army Military Personnel Center, Alexandria, VA, Orders D76-6, dated 20 October 1976, removed the applicant from the TDRL on 31 October 1976 and placed him on the retired list, in the rank of SGT (E-5), with a 40% permanent disability rating effective 1 November 1976. REFERENCES: 1. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has an impairment rated at least 30% disabling. 2. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), that was applicable to the applicant's era of service, sets forth policies, responsibilities, and procedures 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. 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. Separation by reason of disability requires processing through the Disability Evaluation System. a. Chapter 3 (Policies), paragraph 3-5 (Use of the Veterans Administration Schedule for Rating Disabilities), shows that 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. b. Chapter 4 (Procedures) provides that: (1) MEBs are 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 qualification for retention based on criteria in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement). If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB. (2) An informal PEB must ensure that each case considered is complete and correct. All evidence in the case file must be closely examined and additional evidence obtained, if required. In addition, in all informal cases, the PEB Liaison Officer of the medical treatment facility having control of the Soldier will be the counselor for the Soldier. 3. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 4. Title 31, U.S. Code, section 3702, is the 6-year barring statute for payment of claims by the Government. In essence, if an individual brings a claim against the Government for monetary relief, the barring statute provides that the Government is only obligated to pay the individual 6 years from the date of the approval of the claim. DISCUSSION: 1. The applicant contends that his request for an increase in his disability rating should be reconsidered and the Board should further correct his records to show he is entitled to back pay based on the corrections the Board made to his military records. 2. The evidence of record shows the applicant's medical condition (i.e., anemia secondary to G6PD deficiency) was considered by the MEB/PEB. a. It is noted that the applicant's disability rating was 30% when he was placed on the TDRL on 29 July 1972 and his disability rating was increased to 40% when he was placed on the retired list effective 1 November 1976. b. The available evidence does not show the Army misapplied either the medical factors involved or the governing regulatory guidance concerning the applicant's disability processing. c. In the absence of evidence to the contrary, it is presumed that the applicant's disability processing was administratively correct and in conformance with applicable regulations. 3. On 22 October 2015, the applicant's records were corrected by the ABCMR to show he was promoted to SSG (E-6) effective 28 July 1972. The action taken by the Board failed to address entitlement to back pay. The evidence of record confirms the applicant's eligibility to receive back pay based on his promotion to SSG (E-6), as follows: one (1) day of E-6 active duty pay (i.e., 28 July 1972); disability retired pay (TDRL) based on 30% disability rating (grade E-6) from 29 July 1972 through 31 October 1976, and retired pay based on 40% disability rating (grade E-6) effective 1 November 1976. 4. It appears the error in the applicant's active duty and retired pay was a result of administrative error by U.S. Army personnel and not through his own fault. Therefore, it should not be denied based on the barring statute. As a result, it would be appropriate and serve in the interest of justice and equity to correct the applicant's records to show the information regarding his promotion to grade E-6 was made known to DFAS on 29 July 1972. Further, based on this correction of his records, it would also be appropriate to provide him all back pay and allowances due (as outlined in paragraph 3, above). //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001727 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001727 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2