ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF: 

	BOARD DATE:  8 July 2019

	DOCKET NUMBER:  AR20160015303


APPLICANT REQUESTS:  a medical disability retirement.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* two letters from the Department of Veterans Affairs (VA)

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 (ABCMR) 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.  She was not discharged due to a disability.  She later filed a claim for service-connected disability and was awarded a 100 percent (%) rating.  She needs her discharge document to reflect her status change.  At the time of her discharge, she did not believe that she was eligible for benefits.  In 2013, after extensive evaluations and a review of her service medical records it was determined her disability was 100% service-connected.  

	b.  In April 2016, she was issued a Certificate of Eligibility that allowed her apply through the VA home loan process.  Five days before the scheduled closing for 17 August 2016, she was denied her certificate because she had only completed 93 days of active duty.  Therefore, her time was short in the Army.  Her illness began during her period of service and she was separated without knowledge of her rights.  The VA advised her to apply to the ABCMR to have her DD Form 214 (Certificate of Release or Discharge from Active Duty) changed to show she had a disability.  She advised the VA that she would have written the ABCMR before she requested assistance from a mortgage lender and the realtor who spent so much time with her attempting to find her a house.  She has so much invested in it.

3.  The applicant provides two VA letters on/for:

* 6 August 2014 – wherein she was advised of her 70% service-connected rating for one or more service-connected disabilities effective 17 June 2014
* 23 December 2-15 – wherein she was advised of her combined 100% service-connected rating effective 1 November 2015

4.  Review of the applicant’s military record shows:

	a.  She enlisted in the Regular Army on 7 September 1988.

	b.  Her records contain the following:

		(1)  Existed Prior to Service (EPTS) Board memorandum, updated, that stated the applicant was presented with accelerated hypertension now well controlled with no evidence of secondary etiologies.  It was felt that since that was a chronic condition and the applicant required a high dose of medication to keep it under control, it would be in the best interest of the applicant and the Army to separate her.  The plan was for a medical board and to continue her current medications.  She was diagnosed with Essential Hypertension, not service aggravated, unfit under the provisions of (UP) Army Regulation (AR) 40-501 (Standards of Medical Fitness), chapter 2, paragraph 2-19b.  The examining internist opined that through the applicant met retention criteria, he recommended the applicant’s separation UP AR 635-200 (Enlisted Separations – Enlisted Personnel), paragraph 5-11.

		(2)  Possible Chapter 5 Discharge memorandum, dated 2 December 1988, wherein the Executive Officer, Company B, 3rd Battalion, 48th Infantry, Training Brigade, Fort McClellan, AL, stated:

* the medical approving authority opined that the applicant suffered from accelerated hypertension and her condition was chronic, but was being controlled by medication; one such preclusion was that the sufferer avoid strenuous physical activity and such activity could cause extremely high blood pressure and death
* the applicant’s civilian physician stated the applicant did not have a fixed hypertension disease at that time and she could do normal exercise or routine normal activity
* the applicant wished to remain in the Army and complete her basic training
* the medical approving authority was not willing to change the applicant’s medical profile to continue with basic training and felt her condition was unpredictable and the physical activity that was routine to basic training could trigger severe hypertension and then death

		(3)  DD Form 214 showing the applicant was discharged on 9 December 1988 UP AR 635-200, paragraph 5-11, by reason of “did not meet procurement medical fitness standards – no disability.”  Her service was uncharacterized.  The form also shows she completed 3 months and 3 days of net active service and was awarded/authorized the Marksman Marksmanship Qualification Badge with Hand Grenade Bar.

5.  On 16 April 2019, an advisory opinion was received from the Medical Advisor, Army Review Boards Agency, in the processing of this case.  The medical advisor reiterated the applicant’s period of military service and stated based on the available medical record, the applicant did not meet procurement standards due to elevated blood pressure in accordance with (IAW) chapter 2, AR 40-501, which was EPTS.  Based on the available information, the applicant was diagnosed with elevated blood pressure during the initial 6 months of service which prompted the Entrance Physical Standards Board IAW AR 40-501.  It was determined that the applicant would be discharged.  Since the applicant did not meet accession standards, but did meet retention standards, she was not entitled to a Medical Evaluation Board IAW AR 40-501.  Review of all the available documents found no evidence of a medical or behavioral disability or condition that would support a change to the character and/or reason for discharge in this case.

6.  The applicant was provided with a copy of this advisory opinion for acknowledgement and/or rebuttal.  She did not respond.

7.  By regulation (AR 635-200), members who were not medically qualified under procurement medical fitness standards when accepted for initial enlistment would be separated.  Medical proceedings, regardless of the date completed, must establish that a medical condition was identified by appropriate military medical authority within 6 months of the Soldier’s initial entrance onto active duty for the Regular Army which would have permanently or temporarily disqualified him for entry into the military service.  

8.  By law, the VA is not required to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual’s medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.


BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board determined that relief was not warranted.  Based upon the medical advisory’s finding that no evidence of a medical or behavioral disability or condition that would support a change to the character and/or reason for discharge in this case and the applicant failed to submit a rebuttal to those findings, the Board concluded there was insufficient evidence to show that an error or injustice was present which would warrant making a change to the narrative reason for separation.

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.


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) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set policies, standards, and procedures for the orderly administrative separation of Soldiers for a variety of reasons.  The regulation stated in:

	a.  Paragraph 5-11a – the guidance for separation of Soldiers who were not medically qualified under procurement medical fitness standards when accepted for enlistment, or who became medically disqualified.  Medical proceedings, regardless of the date completed, must establish that a medical condition was identified by appropriate military medical authority within 6 months of the Soldier’s initial entrance onto active duty for the Regular Army which would have permanently or temporarily disqualified him for entry into the military service.

	b.  A separation would be described as an entry-level separation (uncharacterized) if processing was initiated while a member was in an entry-level status, except when characterization under other than honorable condition was authorized under the reason for separation and was warranted by the circumstances of the case or when the Secretary of the Army, on a case-by-case basis, determined that characterization of service as honorable was clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty.  Entry-level status was the first 180 days (6 months) of continuous active duty or the first 180 days of continuous active duty following a break in service of more than 92 days of active military service.

3.  AR 40-501 (Standard of Medical Fitness) in effect at the time, provided medical retention standards and was used by medical evaluation boards to determine which medical conditions will be referred to a physical evaluation board (PEB).  Chapter 3 provides the various medical conditions and physical defects which could render a Soldier unfit for service.  Paragraph 2-19b (Vascular System) stated the causes for rejection for appointment, enlistment, and induction area.  Hypertension evidenced by a preponderance of diastolic blood pressure over 90 mmHg or preponderance of systolic blood pressure over 159 mmHg at any age; high blood pressure requiring medication.  A history of treatment including dietary restriction for hypertension was also disqualifying.

4.  AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, set forth policies, responsibilities, and procedures that govern the evaluation for physical fitness of Soldiers who could be unfit to perform their military duties because of physical disability.  The regulation stated in:

	a.  Chapter 3 – the mere presence of impairment did not, of itself, justify a finding of unfitness because of physical disability.  In each case, it was necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably could be expected to perform because of his/her office, rank, grade or rating.

	b.  Chapter 4 – the guidance on referring Soldiers for evaluation by a medical evaluation board (MEB) when a question arose as to the Soldier’s ability to perform the duties of his/her office because of physical disability.

5.  Title 10, U.S. Code (USC), chapter 61 states Soldiers, not otherwise eligible for military retirement, with a disability not the result of intentional misconduct or willful neglect, and with less than a 30 percent disability rating, will receive severance pay.

6.  Title 38, USC, sections 1110 and 1131, permits the Department of Veterans Affairs (VA) to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual’s medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.



ABCMR Record of Proceedings (cont)	 AR20160015303


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