ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 24 June 2019 DOCKET NUMBER: AR20160014543 APPLICANT REQUESTS: * physical disability retirement * correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) covering the period 5 April 1968 through 20 March 1970, to reflect a rank/grade of specialist four(SP4)/E-4 or sergeant (SGT)/E-5 * correction of his U.S. Army Reserve (USAR) records to reflect promotion to the rank/grade of sergeant (SGT)/E-5 or staff sergeant (SSG)/E-6 * back-pay for duties as a movie projectionist APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * self-authored statement * DD Form 214, covering the period 5 April 1968 through 20 March 1970 * numerous Department of Veterans Affairs (VA) Rating Decisions and letters 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 believes his record to be in error and unjust because of all the disabilities he incurred while in Vietnam, including prostate cancer he attributes to his Vietnam service. His disabilities can be seen on his VA Rating Decisions and a review of them shows he should have received a medical retirement after his Vietnam service. b. His record is also unjust because he was never promoted beyond private first class (PFC)/E-3 while in the Regular Army, when he should have been. He had no disciplinary action against him and was promoted to private (PV2)/E-2 after basic combat training (BCT) because he was at the top of his class. He should have been promoted to PFC/E-3 after advanced individual training (AIT) because he was near the top of his class and was very good at his military occupational specialty (MOS) of 36K (Field Wireman). He would trouble shoot WD-1 (telephone field wire) lines using a TA- 312 PT (field phone) hand-held phone. For example, if the line was cut, the TA3-312 would turn freely and very easily; if the TA-312 was hard to turn, that meant there was a shortage in the line’ and if the TA-312 turned in a jerky, very short, easy fashion, that meant the line had a shortage and a cut line. c. He explains this to let the Board know how good he was at his job, but nonetheless spent 17 to 18 months in time and grade as a PFC/E-3 when he should have been promoted to SP4/E-4 or SGT/E-5 before he left active duty. He informed his platoon leader he had not been promoted and his platoon leader agreed he should have been promoted. His platoon leader said he would find out why he hadn’t been promoted and get him his promotion. He returned 3 days later telling him he requested of the first sergeant that he be promoted immediately and back-date his date of rank. Unfortunately, his platoon sergeant was informed that the applicant’s records had been lost and he could not be promoted with lost records. His records ended up remaining lost the entire time he was in Vietnam and showed up the same week he out-processed from Vietnam. Nothing else was ever mentioned about his promotion as he out- processed the military when he left Vietnam. d. When he left the Regular Army upon his expiration term of service (ETS), he joined the USAR and told SSG L____ what happened to him with his promotion when he was in Vietnam and he told him he would talk to the first sergeant about getting him promoted and he was promoted 2 months later. He believes he should have actually been promoted to SSG/E-6 while in the USAR, had he been properly promoted to SGT/E-5 while in the Regular Army. e. He was asked to learn how to operate the movie projector so he could show movies to the officers and afterward to the enlisted Soldiers. He was trained by a coworker on how to operate the movie projector and his coworker told him the job paid $100.00 per month. When he started the job, he was told the job paid $40.00 per month for the exact same work his coworker performed. When he brought up the discrepancy to his commander’s attention, he told him he would only get $40.00 per month for the same work. There were many nights it would be beyond midnight when he finished showing movies to the officers and after that to the enlisted Soldiers. 3. The applicant was inducted into the Army of the United States on 5 April 1968 in the rank/grade of PVT/E-1. 4. He was awarded the MOS 36K and was promoted to the rank/grade of PFC/E-3 on 14 October 1968. He served in Vietnam from 4 April 1969 through 20 March 1970. 5. On 20 March 1970, he was honorably released from active duty and transferred to the USAR Control Group (Annual Training) as an overseas returnee after 1 year, 11 months, and 26 days of net active service this period. His DD Form 214 shows his rank/grade at the time of his release from active duty to have been PFC/E-3. 6. There are no orders promoting the applicant to SP4/E-4 nor is there any evidence of record indicating he was ever diagnosed with or treated for any medical disability while in the Regular Army. 7. His service records contain an Extension of Enlistment, which shows he extended his enlistment in the USAR on 30 March 1974, to a period of 7 years. His listed rank/grade is SP4/E-4. 8. A DA Form 3081-R, dated 30 March 1974, shows he underwent a periodic medical examination on or about 24 August 1973, and the applicant acknowledged on the date of the form there was no significant change to his medical condition since that prior periodic medical examination. 9. There is no evidence of record the applicant served as a movie projectionist while in the Regular Army or the USAR, either in an off-duty capacity for supplemental pay in addition to his normal Army pay or as an additional duty, without the expectation of additional pay. 10. US Army ROTC Instructor Group, Senior Division Orders 303, dated 30 March 1977, discharged the applicant from the USAR (Ready Reserve) effective 24 March 1977 in the rank/grade of SP4/E-4. A DD Form 4 (Enlistment Contract- Armed Forces of the United States) shows he subsequently enlisted in the USAR Control Group (Reserve Officer Training Corps (ROTC)) on 28 March 1977 in the rank/grade of SP4/E-4. There is no evidence of record he was ever recommended for promotion or promoted while in the USAR to the rank/grade of SGT/E-5 or SSG/E-6. 11. A Standard form 88 (Report of Medical Examination), shows he underwent a medical examination as an ROTC Cadet on 21 June 1978. The summary of defects and diagnosis requiring correction were limited to dental carries and defective near and distant visual acuity. 12. Headquarters First ROTC Region Orders 161-1C-A-1469, dated 16 August 1979, show he was appointed as a second lieutenant (2LT) in the USAR and ordered to active duty to attend the Signal Corps Officer Basic Course with a reporting dated of 23 September 1979. 13. A DA Form 1059 (Service School Academic Evaluation Report), shows: * he achieved course standards and successfully completed the Signal Officer Basic Course from 23 September 1979 through 17 January 1980 * the resident course evaluation report does not indicate he suffered from a medical disability hindering his performance 14. Headquarters, 13th Support Command (Corps) Orders 39-120, dated 19 February 1981, promoted him in the Army of the United States from 2LT to first lieutenant (1LT) effective 29 March 1981. 15. His DD Form 214 shows he was honorably released from active duty on 23 September 1982 after 3 years and 1 days of net active service this period and transferred to the USAR Control Group (Reinforcement). His rank/grade is shown as 1LT/O-2. 16. None of his available service records from any of his periods of service show: * he was issued a permanent physical profile rating * he suffered from a medical condition, physical or mental, that affected his ability to perform the duties required by his MOS and/or grade or rendered him unfit for military service * he was diagnosed with a medical condition that warranted his entry into the Army Physical Disability Evaluation System (PDES) * he was diagnosed with a condition that failed retention standards and/or was unfitting 17. The applicant provided a VA Rating Decision, dated 9 June 2016, which shows: a. Effective 11 April 2016, he was granted a service-connected disability rating of 100 percent for prostate cancer associated with herbicide exposure. b. He was diagnosed with prostate cancer in July 2015 and the VA stated although not shown in service, service connection for prostate cancer was granted on the basis of presumption due to Agent Orange Exposure during Vietnam. 18. On 15 March 2019, the Army Review Boards Agency (ARBA) medical advisor provided an advisory opinion, which states: a. A review of the available documentation found insufficient evidence of a medical disability or condition that would support a change to the character, reason, rated conditions, disability determination, disability ratings or combat relatedness of the discharge in this case. The evidence shows the applicant met medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness). b. The Army has neither the role nor the authority to compensate for progression or complications of service-connected conditions after separation. A copy of the complete medical advisory was provided to the Board for their review and consideration. 19. The applicant was provided a copy of the advisory opinion on 20 March 2019 and given an opportunity to submit comments, but he did not respond. 20. 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. 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 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. 21. 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. 22. 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. 23. Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities that were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish error or injustice on the part of the Army. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The VA does not have the authority or responsibility for determining physical fitness for military service. The VA awards disability ratings to veterans for service- connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. These two government agencies operate under different policies. Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 24. Army Regulation 600-200 (Enlisted Personnel Management System), in effect at the time, prescribed policies, responsibilities, and procedures pertaining to career management of Army enlisted personnel. Chapter 7 contained Army-wide promotion policy and procedures. It stated the promotion of enlisted personnel to grades E-3 through E-9, appointments, grade reductions, and grade restorations were announced in orders. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents and evidence in the records and a medical advisory opinion. The Board considered the applicant’s statement, his record of service, the record of his promotions and in-service medical records. The Board considered the review by the medical advising official and concurs with the conclusion that the applicant met medical retention standards while in service; there was insufficient evidence to support a discharge due to physical disability. The Board found no evidence of the applicant’s promotion to SPC prior to his separation from active duty or that he was promoted to SGT or SSG while a member of the USAR. The Board considered the applicant’s statement, but found no evidence of the applicant performing duties as a projectionist that entitled him to paid compensation. Based upon a preponderance of evidence, the Board determined that the applicant’s rank and reason for separation on his DD Form 214 and the rank on his discharge from the USAR was not in error or unjust. 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. 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. 3. 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. 4. 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. 5. Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities that were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish error or injustice on the part of the Army. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The VA does not have the authority or responsibility for determining physical fitness for military service. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. These two government agencies operate under different policies. Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 6. Army Regulation 600-200 (Enlisted Personnel Management System), in effect at the time, prescribed policies, responsibilities, and procedures pertaining to career management of Army enlisted personnel. Chapter 7 contained Army-wide promotion policy and procedures. It stated the promotion of enlisted personnel to grades E-3 through E-9, appointments, grade reductions, and grade restorations were announced in orders. 7. Army Regulation 635-5 (Separation Documents), in effect at the time, established standardized policy for preparing and distributing the separation documents which are prepared for individuals upon retirement, discharge, or release from active duty or control of the Army, to include the DD Form 214. Chapter 2 contained guidance for preparation of the DD Form 214. The instructions stated items 5a (Grade, Rate or Rank) and 5b (Pay Grade) would show the active duty rank and pay grade at time of the Soldier's separation. The rank was taken from the Soldier's promotion/reduction orders. ABCMR Record of Proceedings (cont) AR20160014543 8 1