ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 28 January 2019 DOCKET NUMBER: AR20160014291 APPLICANT REQUESTS: * correction of her late father’s records to award disability retirement or separation * a personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Death Certificate * Statement by daughter (Applicant) * WD AGO Form 221 (Record of Induction of Selective Service Man) * Enlisted Record * Service Medical Documents * Report of Board of Medical Officers * WD AGO Form 40 (Certificate of Disability for Discharge) * Honorable Discharge Certificate * Letter from the Department of Veterans Affairs (VA) * Notice of Assignment of C-Number * Request for Medical Opinion * Petition for Appointment of Guardian of Legally Incapacitated Person * Death Records and Autopsy * VA Rating Decision * Two VA Form 21-4138 (Statement in Support of Claim) 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, the daughter of a deceased former service member (FSM), states her father was released from the Army as being disabled, but he never received disability or pension or accrued benefits that he was entitled to receive. She is requesting the disability and pension of the FSM as well as any accrued benefits owed to the FSM from his date of discharge in 1943 to the date of his death in 1997. The FSM served his country until he became ill, but he was never compensated for his disability and died a bitter man due to many injustices he faced while in the Army. 3. The applicant provides: a. A self-authored statement in which she states her father passed away in 1997. He enlisted in the Army during World War II. He became ill toward the end of his tour and was hospitalized for a few months. During his hospitalization, his physicians determined that he was physically disabled and was unable to return to duty. He therefore received an honorable discharge under medical conditions. (1) Although the FSM was entitled to disability benefits (medical and pension) he never received any benefits. Prior to his death, he spent considerable time and effort contacting different representatives from the VA attempting to verify why he was not receiving benefits he was entitled to. He was not an educated man and could not read or write and his comprehension skills were limited. (2) During his extended hospitalization, prior to his discharge, various officials informed him that he would receive medical and monetary compensation due to his disabled status. His discharge documents state that the condition of the Soldier at the time of discharge was poor. He passed away from the same conditions that he was discharged from the Army for. (3) The applicant had to move the FSM to her residence in another state due to his worsening medical condition. He also developed Alzheimer disease. The applicant began researching the FSM’s honorable discharge in an effort to determine why he was not receiving the full benefits that he was entitled. This was an extremely difficult time for both of them and the difficulty was compounded by the lack of knowledge and experience of the personnel at the VA in various states. (4) The applicant promised her father that she would continue to research why he did not receive the full benefits he was entitled. In 1999, she met with a VA representative who informed her that her father was entitled to monetary benefits (dating back to 1944) that he never received. There was a document that was missing from his file and if she was able to find the document, she would receive the FSM’s benefits as his only living survivor. (5) The FSM suffered for many years and was treated very shabbily by the Army and the VA. He was refused service many times at the VA. She had to rely on herself for his care even though he had Alzheimer and that was difficult. b. Report of Induction and enlisted record, which shows the FSM was inducted on 22 April 1941. c. Service medical documents, which show the FSM did not elect to file a claim for pension and was seen for blood pressure treatment. d. Report of Board of Medical Officers, which shows the FSM was unfit for service because of: * other disease of nervous system, neuro-circulatory asthenia, moderate, manifested by fainting attacks, dyspnea, palpitations * hypertension, arterial, moderate, cause undetermined, incapacitated by (a) pain of frequent severe headaches, dizziness, shortness of breath and (b) the chronic progressive nature of the conditions all of which render him incapable of performing the duties of a Soldier e. Certificate of Disability for Discharge, dated 8 June 1943, which shows the FSM was recommended for discharge on account of other disease of nervous system, neuro- circulatory asthenia, arterial hypertension, moderate, cause undetermined and that the disease or injury received existed prior to induction. f. The FSM’s Honorable Discharge Certificate, which shows he served honorably and was discharged on 8 June 1943. g. A letter from the VA, which states that his records were transmitted to the VA in Texas. h. Notice of Assignment of C-Number, which shows that the VA received his records. i. Request for medical opinion, dated 22 April 1997, which shows the FSM was seen for hypertension. j. Petition for Appointment of Guardian of Legal Incapacitated Person, which shows the applicant petitioned to become the legal guardian for the FSM. k. Death records and autopsy report which show the condition of the FSM at the time of death. It shows his cause of death as coronary atherosclerosis. l. VA rating decision, which shows the applicant was entitled to accrued benefits for the following: * peripheral vascular disease, 70% from 1 July 1996 to 4 July 1997 * hypertension with heart disease, 30% from 1 July 1996 to 4 July It also shows not service-connected for the following conditions: * history of stroke * Alzheimer’s Dementia m. Statements in support of claim: (1) 31 August 2015, which shows the applicant submitted a VA claim and mentioned a previous claim from 1943. (2) 24 September 2015, which shows the applicant requested accrued benefits from the VA from the date of his discharge. 4. On 16 August 2018, the Army Review Boards Agency’s senior medical advisor rendered an advisory opinion in the processing of this case. He opined: a. The available record reasonably supports Post-Traumatic Stress Disorder (PTSD) or another boardable behavioral health condition at the time of the FSM’s military service. The condition was neuro-circulatory asthenia, moderate, manifested by fainting attacks, dyspnea, palpitations (i.e. in today’s terms, anxiety and/or panic attacks) as well as headaches and dizziness symptoms. b. The FSM failed medical retention standards for neuro-circulatory asthenia. c. The FSM met medical retention standards for elevated blood pressure and/or hypertension, existed prior to induction (treated in 1932) and all other medical, physical, dental and/or behavioral conditions. d. The FSM’s medical conditions were duly considered during medical separation processing. His case was adjudicated by a Certificate of Disability for Discharge Board of Medical Officers with recommendation for disability not in line of duty and not due to his own misconduct. Prior history of a similar condition in 1937 led to the determination not in line of duty for his conditions, existed prior to induction. e. A review of the FSM’s documentation found insufficient evidence of a medical disability or condition that would support a change to the character or reason for the discharge in this case. f. The Army has neither the role nor the authority to compensate for progression or complications of service-connected conditions after separation. That role and authority granted by Congress to the VA, operating under a different set of laws. 5. On 21 August 2018, the advisory opinion was forwarded to the applicant for acknowledgement and/or response. She did not respond. 6. Army Regulation 635-40 (Personnel Separations - Physical Evaluation for Retention, Separation, or Retirement for Physical Disability), in effect at the time of the FSM’s discharge is not available for review. However, the regulation in effect after his discharge stated when it is determined that the member has incurred a physical disability which renders him unfit and which existed prior to his term of active service and not permanently aggravated as a result of active service, such member will be discharged without entitlement to any benefits. BOARD DISCUSSION: After reviewing the application and all of the supporting evidence, to include applicant’s statement, the Board decided relief was not warranted in the case. Based upon the advisory opinion, the Board found that there was lack of evidence to support the applicant’s request. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION SIGNATURE: ___________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. 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 (AR) 635-40 (Personnel Separations - Physical Evaluation for Retention, Separation, or Retirement for Physical Disability) states when it is determined that the member has incurred a physical disability which renders him unfit and which is determined to have resulted from his intention misconduct, or willful neglect, or was incurred during a period of unauthorized absence, or was disability which existed prior to his term of active service and not permanently aggravated as a result of active service, such member will be discharged without entitlement to any benefits provided by these regulations. 3. AR 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. ABCMR Record of Proceedings (cont) AR20160014291 5 1