ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 11 July 2019 DOCKET NUMBER: AR20160014164 APPLICANT REQUESTS: in effect, he be placed on the Permanent Disability Retirement List (PDRL) in the paygrade/rank of sergeant first class (SFC)/E-7 instead of being honorably discharged due to Reduction in Authorized strength – Qualitative Early Transition Program. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * personal statement * medical documents * photo * documents from service record * excerpts of Army Regulations * excerpts of United Stated Codes * research pertaining to Agent Orange * research on Fort McClellan and Agent Orange * research pertaining to birth defects in children of Vietnam and Korean veterans FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states: a. He should be placed on the PDRL because of chemical exposure at Fort McClellan, Alabama, which resulted in severe heart problems, vomiting, loss of energy, and constant cold virus. These conditions caused his failure to stay in the Army, to get a job since separation, mental instability, and Rib cage arthritis. Due to his disability he was unable to do his job. He was on permanent profile and could not return to work following his military service. b. He has always strived to be the best Soldier he could be, He served in the military from October 1976 until April 1992. His main focus was to supervise every Soldier in his field. His mindset was to be a quality Soldier who stood out. He was stationed at Fort McClelland and his job was to train Soldiers about chemical, biological, radiological (CBR) and nuclear, biological, chemical (NBC). He started experiencing severe chest pain. He would often find himself vomiting. He went on sick call for symptoms resembling the flu. One day he got so sick he could hardly walk. He could not walk up the slightest incline without it taking everything out of him. That day he found himself in a medical vehicle and did not remember how he got there. He was rushed to the hospital and told he did not have any vital signs and they did not know how he survived. c. He went back and forth to the troop medical clinic and was placed on a P3 profile for two years before he requested to be separated. He knew he was going to die at any minute. He could not attend advanced training because he was having severe chest problems. He was told he could go at a later date. Instead of getting better he got worse. Someone was playing with gas and he thought his heart would burst. His heart was so bad, he could not tolerate cigarette smoke. He had bad headaches and difficulty breathing. He found himself easily irritated and almost unbearable to be around. He did his duties until he could not perform to the best of his ability. 3. The applicant’s non-commissioned officer evaluation report (NCOER) for the period June 1989 through May 1990, show his overall performance and potential was rated as “marginal.” 4. The applicant accepted non-judicial punishment on 3 August 1990, for failing to obey a lawful order. His punishment consisted of reduction to sergeant (SGT)/E-5, 45 days extra duty, and forfeiture of one half month pay ($782.00), suspended for 90 days (5 November 1990), suspension will automatically be remitted on that day unless sooner vacated. 5. On 9 October 1991, a Medical Evaluation Board (MEB) referred the applicant to PEB for chronic rhinitis with secondary hyperventilation and history of small pharyngeal inlet and hypertrophic tonsils. The applicant did not agree with the board’s findings and recommendation and the form indicates he attached his appeal. The form further indicates the applicant’s appeal was considered and the findings and recommendation were confirmed. 6. A PEB convened on 23 October 1991, and found the applicant physically fit and recommended be returned to duty as fit. 7. On 5 November 1991, after being informed of the PEB’s findings and recommendation, the applicant did not concur and demanded a formal hearing and requested regularly appointed counsel represent him. He indicated he would have counsel of his choice at no expense to the government. 8. On 7 November 1991, the applicant acknowledged he was notified of his DA Bar to Reenlistment under the Qualitative Management Program (QMP). He acknowledged he had to the option to submit an appeal within 60 days of notification or he may request to be discharged. The date of discharge must be before normal expiration of term of service (ETS). If he is forced to leave the service under QMP before qualifying for retirement, he is eligible for half-separation pay and transition assistance benefits. 8. A formal PEB convened on 6 January 1992, and found the applicant physically fit and recommended be returned to duty as fit. The applicant elected to appear and was represented by counsel. 9. On 28 January 1992, the Acting Chief, Physical Disability Branch, approved the findings of the PEB which convened on 6 January 1992, and found: a. The applicant was determined to be fit for military service and disposition will be made in accordance with the provisions of paragraph 4-24, Army Regulation 635-40. b. The applicant had been found physically fit to perform the duties of his/her office, grade, rank, and military occupational specialty in accordance with physical profile and assignment limitations. c. If the Soldier was scheduled for separation or retirement or reasons other than physical disability, that separation or retirement action may continue. d. If the Soldier was not scheduled for separation or retirement or reasons other than physical disability the Soldier should be returned to duty. When a Soldier is returned to duty and is incapable of satisfactorily performing primary MOS duties because of disability, action should be initiated to again refer the Soldier into the disability evaluation system for reevaluation. 10. On 2 March 1992, after careful review by a Standby Advisory Board, the applicant’s appeal of the Bar to Reenlistment was disapproved. The Board judged that the applicant’s past performance and estimated potential are not in keeping with the standards expected of the NCO Corps. The applicant was to be separated no later than 31 May 1992. Separation will be under the provisions of paragraph 16-8, Army Regulation 635-200 (Personnel Separations). Narrative reason for separation is “Reduction in Authorized Strength-Qualitative Early Transition Program”. Reenlistment Code is RE-4. Separation Program Designator (SPD) is JCC. Service is characterized as “Honorable”. 11. On 20 April 1992, the applicant was honorably discharged in the rank of SGT, under the provisions of Army Regulation 635-200, due to “Reduction in Authorized Strength – Qualitative Early Transition Program”. He completed 12 years, 11 months, and 24 days of net active service this period, with 2 years, 6 months, and 10 days of total prior active service. There is no evidence the applicant was ever promote to the rank of SFC. 12. On 7 March 2019, the Army Review Boards Agency (ARBA) medical advisor provided an advisory opinion. The ARBA medical advisor concluded a review of the available documentation found insufficient evidence of a medical disability or condition that would support a change to the character(s), reason(s), rated condition(s), disability determination(s), disability rating(s), and combat relatedness for the discharge in this case. Based on the information available for review at the time, the applicant did not have mitigating medical or behavioral health condition(s) for his misconduct while in the Army. The Army has neither the role nor the authority to compensate for progression or complications of service-connected conditions after separation. Congress grants that role and authority to the Department of Veterans Affairs, operating under a different set of laws. A copy of the complete medical advisory was provided to the Board for their review and consideration. 13. On 12 March 2919, the applicant was provided a copy of the medical advisory for comment or rebuttal. He did not respond. 14. 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. The service of personnel separated under this paragraph will be characterized as honorable. 15. 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. 16. 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. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and the medical advisory opinion. The Board considered the PEB proceedings that determined the applicant to be fit for duty, his Bar to Reenlistment, his reduction in grade due to NJP and the conclusions of the Advising Official (that he was fit for duty and that he had no conditions that would mitigate his misconduct). Based on the finding of fitness and his grade at the time of separation, the Board found insufficient evidence to determine and error or injustice occurred did not recommend relief. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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 for correction of the records of the individual concerned. 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. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. 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. The service of personnel separated under this paragraph will be characterized as honorable. 3. Army Regulation 601-280 (Army Retention Program), paragraph 10-8, provides that a Soldier may appeal the bar to reenlistment imposed under Qualitative Management Program 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 Qualitative Management Program Appeals Board normally conducted in conjunction with Centralized Enlisted Selection Boards. The Qualitative Management Program 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. 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. a. 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). b. 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. 5. 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. 6. 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. ABCMR Record of Proceedings (cont) AR20160014164 0 5 1