ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 22 February 2019 DOCKET NUMBER: AR20160013249 APPLICANT REQUESTS: reconsideration of her prior requests for correction of her DD Form 214 (Certificate of Release or Discharge from Active Duty) to reflect her rank/grade as specialist five/E-5. As new issues, she is requesting a change to her reason for separation to physical disability retirement, payment of her reenlistment bonus and, in effect, back-pay and allowances related to her promotion to specialist five/E-5. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DA Form 2139 (Military Pay Voucher) * Medical Examination for Separation/Retirement – Statement of Option * Headquarters, U.S. Army Training Center and Fort Dix, Orders 356-230, dated 21 December 1984 * DD Form 214 * Department of Veterans Affairs (VA) letter, dated 7 November 1985 * Army Review Boards Agency (ARBA) letter, dated 25 May 2010 * ARBA letter, dated 16 June 2016 FACTS: 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 AR20080014155 on 4 December 2008. 2. The applicant states: a. Her DD Form 214 should be corrected to show her separation was due to medical hardship disability retirement. A letter from the ARBA senior legal advisor, dated 25 May 2010, reflects a not signed and not completed medical disability hardship that was approved on 21 December 1984. A letter from the VA, containing number 20-8332a-1, shows her service-connected disability ratings for a left knee conditions and scars (severe hardship). This disability discharge has been on hold for more than 20 years and she is now 55 years old. b. Her rank/pay grade should reflect specialist five/E-5 for her primary military occupational specialty (MOS) 54E (Nuclear Biological Chemical Specialist) with an effective date of rank of 1981. c. She is also requesting pay and allowances, presumptively, related to the specialist five/E-5 promotion, and the payment of her reenlistment bonus. 3. The applicant enlisted in the Regular Army on 18 March 1980. 4. Headquarters, 1st Infantry Division (Mechanized) and Fort Riley Orders 186-35, dated 22 September 1981, promoted her to the rank/grade of specialist four/E-4, effective 1 October 1981. 5. Her DA Form 2-1 (Personnel Qualification Record – Part II) shows she was promoted to the rank/grade of specialist four/E-4 on 1 October 1981. No further promotions or reductions are annotated on this form beyond that date. There is no evidence in her military records she ever held the rank/grade of specialist five/E-5. 6. She reenlisted in the Regular Army on 30 March 1983. a. A DA Form 4789 (Statement of Entitlement to Selective Reenlistment Bonus (SRB)), dated 30 March 1983, shows she was receiving an SRB in return for her 6-year reenlistment in MOS 54E. The document states she was advised and understood if she did not complete the full period of service, or if she did not remain technically qualified in MOS 54E, she would not receive any more installments of the bonus, and she would have to pay back as much of the bonus as she already received for the unexpired part of the period of obligated service. b. A DA Form 3286 (Statements for Enlistment), dated 30 March 1983, shows in connection with her reenlistment in the Regular Army she was electing the Overseas Area Reenlistment Option and would be assigned to Europe. 7. The applicant provided a Military Pay Voucher, dated 11 April 1983, which is of poor quality and partially illegible. It shows: * her basic pay grade was E-4 * effective 30 March 1983, she was eligible for a payment of $9382.65 for what appears to be an SRB in MOS 54E, to be made in installments * of the first installment was for $4,691.33 from which deductions of $938.27 and $93.83 were made, leaving a remainder of $3,659.23 * she was paid $3,659.23 on 11 April 1983 * there was a remainder of $4691.32 (prior to deductions) left to be paid in future installments 8. Her available records do not show any further documentation pertaining to an enlistment bonus or the payment thereof. 9. A DD Form 4187 (Personnel Action), shows she requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 6, due to hardship. Along with her request she submitted an affidavit, which states: a. Unexpected circumstances prevented her from fulfilling her military obligations without neglecting her children. At the time of her reenlistment, she intended to reenlist for Hawaii, but due to an administrative error, her option to reenlist for the Hawaii option was cancelled and she had to reenlist for Germany. b. She had been away from her husband and two children, a 3 year old daughter and an 11 month old son, for 10 months. Her family could not join her in Germany because of expenses. Her husband had a good job in Guam and did not want to relocate and lose his job, but the burden of caring for their two children was too much for her 72-year old mother-in-law. Her husband and children needed her and she felt a hardship discharge was the only available means of eliminating the dependency conditions 10. Her immediate commander, intermediate commanders, and the Division Chaplain all concurred that the applicant’s circumstances warranted a hardship discharge as she tried all ways possible to alleviate the situation and that her family would benefit from the approval of the discharge request. 11. On 6 December 1984, the approval authority directed the applicant’s discharge under the provisions of Army Regulation 635-200, chapter 6, due to hardship and directed the issuance of an Honorable Discharge Certificate. 12. A Medical Examination for Separation (or Retirement), dated 19 December 1984, and signed by the Commander, 225th Station Hospital, shows the applicant had a physical profile of 111121, with the 2 rating pertaining to her vision. Page two of that document includes the applicant’s Statement of Option, wherein she marked and signed she did not desire a separation medical examination. 13. Her DD Form 214 reflects she was honorably released from active duty on 21 December 1984, due to hardship after 4 years, 9 months, and 4 days of net active service. Her rank and grade are reflected on her DD Form 214 as specialist four/E-4. 14. Headquarters, U.S. Army Training Center and Fort Dix, Orders 356-230, dated 21 December 1984, show she was relieved from active duty, not by reason of physical disability, on 21 December 1984 and transferred to the U.S. Army Reserve Control Group (Reinforcement). 15. Her available service records do not show: * she was issued a permanent physical profile rating * she suffered from a medical condition, physical or mental, that affected her ability to perform the duties required by her MOS and/or grade or rendered her unfit for military service * she was diagnosed with a medical condition that warranted her entry into the Army Disability Evaluation System * she was diagnosed with a condition that failed retention standards and/or was unfitting 16. She provided a letter from the VA, dated 7 November 1985, which states they could not grant her claim for disability benefits. The listed disabilities of left knee condition and scars were service-connected, but they were less than 10 percent disabling and compensation was not payable. She was informed she was entitled to necessary treatment by the VA for any service-connected disabilities. 17. She also provided a letter from the ARBA senior legal advisor, dated 25 May 2010 which states: a. This letter was in response to her letter dated 22 April 2010, wherein she asked to be placed on the retired list in the highest pay grade and rank held. He regretted to inform her after careful review of her military records, it was determined she was not eligible for placement on the retired list or advancement by the Army Grade Determination Review Board. b. Her records reflected, pursuant to her request on 28 November 1984, she was granted a hardship discharge effective 21 December 1984. She served not quite five years of active military service. Additionally, the highest grade she held while on active duty was E-4 and she was discharged in the grade of E-4. 18. In the adjudication of this case, an advisory opinion was obtained from the ARBA senior medical advisor on 20 September 2018, which states: a. The applicant’s electronic medical record (AHLTA), laboratory results, Clinical Notes, paper service records and VA records were all reviewed. b. Her DD Form 1966 (Application for Enlistment), dated on/about 26 February 1980, shows her physical rating PULHES was 111121 (the 2 rating for vision) with visual acuity distant 20/25 bilaterally. c. Her Standard Form 93 (Report of Medical History), dated 27 February 1980, shows no medications and all ‘no’ responses except as noted: vision in both eyes, frequent or severe headaches, throat trouble, hay fever, blood in urine, patient in hospital. Explanation of ‘yes’ responses: miscarriage August 1978. Reviewed with provider – cystitis 1979, irregular menses, headaches – tension, tonsillitis, gravida 1 para 0, hay fever, denies marijuana or drug abuse. d. Her Standard Form 88 (Report of Medical Examination), dated 27 February 1980 shows an unremarkable clinical evaluation. Summary of defects/diagnoses: distance visual acuity – E2 in PULHES. She was qualified for enlistment/regular army. e. Her DA Form 2-1, dated 17 August 1984, shows her physical rating PULHES as 111121. f. She submitted a DA Form 4187, dated 28 November 1984 requesting separation from the service because of hardship to care for her family located in Guam. Her battalion commander endorsed the request, stating “The conditions in [the applicant’s] circumstances do warrant a discharge. She has tried in all ways possible to alleviate the situation. The family in this case would benefit if approved for discharge. I strongly recommend approval.” The division chaplain endorsed the request and the hardship discharge was approved in accordance with Army Regulation 635-200, chapter 6 on 6 December 1984. She was issued an Honorable Discharge Certificate. g. A memorandum dated 19 December 1984, shows results of medical examination are furnished for E-4/SP4 applicant. a. Physical Profile serial PULHES-111121. Medical Condition(s) or physical defect(s) and assignment limitations are: blank/none listed. h. A Medical Examination For Separation/Retirement – Statement of Option dated 19 December 1984 shows she marked “I _X_ do not desire a separation medical examination” and was dated and signed by applicant. i. Direct Accessioning Active Army Enlisted –Accession Worksheet Individual Ready Reserve, dated 25 January 1985 shows her physical profile as 111121. j. A memorandum, titled, Request for Medical Records dated 2 April 1985 from the Guam Army National Guard Recruiting Office in Agana, Guam states: “This office requires the needed documents to assist the Military Entrance Processing Station (MEPS) physician make a final medical evaluation on the above individual for possible enlistment into the Guam Army National Guard.” k. A VA letter dated 7 November 1985, states: We cannot grant your claim for disability benefits. The disabilities listed below are service-connected but they are less than 10% disabling and compensation is not payable. Knee condition, Left. Scars. There is entitlement to necessary treatment by the VA for any service-connected disability… l. A memorandum from U.S. Army Reserve Components Personnel and Administration Center to Army National Guard Recruiting Office (Guam) dated 28 May 1986, states, “We have received your inquiry concerning the above named person. We have forwarded your inquiry to the office shown below for action and direct reply since the medical records are presently located at VA Regional Office in Honolulu, HI. m. A VA Outpatient Clinic Guam letter dated 2 April 2008, notes “This statement is written at the request of [the applicant]. [The applicant] has been treated at the Guam Veterans Clinic from 1985 to the present date.” n. A limited review of VA (Veteran’s Administration) records through the JLV (Joint Legacy Viewer) shows 25 listed problems (24 VA-entered) including dysthymia, post- traumatic stress disorder (PTSD), fibromyalgia, neck pain, shoulder pain, chondromalacia patella, osteoarthrosis, foot pain, hypothyroidism, gout, obesity, hypertension, hyperlipidemia, prediabetes and others. The applicant is VA service connected at 10 percent overall (limited flexion of knee at 10 percent; scars x 2 at 0 percent x 2) o. The available record does not reasonably support PTSD or another boardable behavioral health condition(s) existed at the time of the applicant’s military service. p. The applicant met medical retention standards for knee condition, EPTS (existed prior to service) headaches, EPTS hay fever, EPTS visual acuity, EPTS dysmenorrhea, and other physical, medical, dental and/or behavioral conditions in accordance with chapter 3, 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. The applicant’s medical conditions were duly considered during separation processing. q. A review of the available documentation found no evidence of a medical disability or condition that would support a change to the character or reason for the discharge in this case. The applicant requested a hardship (dependency) discharge due to family issues and received one as requested. The applicant clearly met medical retention standards on discharge. Within a few months of separation, the applicant applied to reenlist in the Guam Army National Guard. r. There was no indication for disability evaluation system (DES) processing, and no indication for Medical Evaluation Board/Physical Evaluation Board in this case. 19. A copy of the advisory opinion was provided to the applicant on 27 September 2018 and she was given an opportunity to submit comments, but did not respond. 20. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Disability Evaluation System 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 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. a. Paragraph 3-2 states 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 military service. b. Paragraph 3-4 states Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: (1) 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 training. (2) 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. 21. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent. 22. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. a. Chapter 6 pertains to separation because of dependency or hardship. Hardship exists when, in circumstances not involving death or disability of a member of the Soldier’s (or spouse’s) immediate family, separation from the service will materially affect the care or support of the family by alleviating undue and genuine hardship. b. Once the required evidence is submitted and the request approved, if the service member is still in an entry level status, he/she will receive an entry level separation. If the service member is beyond entry level status, service will be characterized as honorable. 23. Army Regulation 635-5 (Separation Documents), in effect at the time, prescribes the separation documents which are prepared for individuals upon retirement , discharge, or release from active military service and establishes standardized policy for the preparation and distribution of the DD Form 214. The instructions for the preparation of the DD Form 214 state to enter in Items 4a (Grade, Rate or Rank) and 4b (Pay Grade) the active duty grade of rank and pay grade at the time of separation. 24. Army Regulation 600-200 (Enlisted Personnel Management System), in effect at the time, provided policies on enlisted classification, evaluation, promotion, utilization, qualitative management, proficiency, pay, enlistment/reenlistment bonuses including Selective Reenlistment Bonus (SRB) criteria. a. The SRB will be paid in a lump sum at the time or reenlistment or in annual payments instead of in a lump sum. For a Soldier who starts serving on an SRB qualifying extension of enlistment or reenlistment on or after 15 January 1982, he/she will receive fifty percent of the total bonus (minus taxes) at the time of reenlistment. The remaining SRB amount will be paid in equal annual installments (less taxes) spread over the rest of the reenlistment contract period or extension period b. A member who voluntarily, or because of misconduct, fails to complete the obligated service for which an SRB was paid will refund that percentage for which he/she did not fulfill the agreement. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant any relief of the request. The Board agreed her medical concerns did not exist during her military service and therefore does not require referral to the OTSG. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X : X DENY APPLICATION 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 to amend the decision of the ABCMR set forth in Docket Number AR20080014155 on 4 December 2008. ___________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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. a. Chapter 6 pertains to separation because of dependency or hardship. Hardship exists when, in circumstances not involving death or disability of a member of the Soldier’s (or spouse’s) immediate family, separation from the service will materially affect the care or support of the family by alleviating undue and genuine hardship. b. Once the required evidence is submitted and the request approved, if the service member is still in an entry level status, he/she will receive an entry level separation. If the service member is beyond entry level status, service will be characterized as honorable. 2. Army Regulation 635-5 (Separation Documents), in effect at the time, prescribes the separation documents which are prepared for individuals upon retirement , discharge, or release from active military service and establishes standardized policy for the preparation and distribution of the DD Form 214. The instructions for the preparation of the DD Form 214 state to enter in Items 4a (Grade, Rate or Rank) and 4b (Pay Grade) the active duty grade of rank and pay grade at the time of separation. 3. 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 is responsible for administering the Army physical disability evaluation system and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in an MEB; when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an MOS Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. b. The disability evaluation assessment process involves two distinct stages: the MEB and PEB. The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/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 or not 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 either are 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 retired pay and have access to all other benefits afforded to military retirees. c. The mere presence of a 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. 4. Army Regulation 635-40 establishes the Army Disability Evaluation System 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 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. a. Paragraph 3-2 states 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 military service. b. Paragraph 3-4 states Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: (1) 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 training. (2) 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. 5. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent. 6. Army Regulation 600-200 (Enlisted Personnel Management System), in effect at the time, provided policies on enlisted classification, evaluation, promotion, utilization, qualitative management, proficiency, pay, enlistment/reenlistment bonuses including SRB criteria. a. Chapter 9, pertains to enlistment and reenlistment bonuses for enlisted personnel. It states the SRB is a retention incentive paid to Soldiers in certain selected MOSs who reenlist or voluntarily extend their enlistment for additional obligated service. b. The SRB will be paid in a lump sum at the time or reenlistment or in annual payments instead of in a lump sum. For a Soldier who starts serving on an SRB qualifying extension of enlistment or reenlistment on or after 15 January 1982, he/she will receive fifty percent of the total bonus (minus taxes) at the time of reenlistment. The remaining SRB amount will be paid in equal annual installments (less taxes) spread over the rest of the reenlistment contract period or extension period c. A member who voluntarily, or because of misconduct, fails to complete the obligated service for which an SRB was paid will refund that percentage for which he/she did not fulfill the agreement.