ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  12 December 2019

	DOCKET NUMBER:  AR20160015931


APPLICANT REQUESTS:  reconsideration of his previous request for a physical 
disability separation.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:  he 
provides a DD Form 293 (Application for the Review of Discharge from the Armed 
Forces of the United States).

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 AC96-05853 on 19 February 1997.

2.  The applicant states:

	a.  He had Agent Orange in his body.  A complete body physical found skin 
disease and post-traumatic stress disorder (PTSD) symptoms from the Vietnam War 
and duty conditions.  He has complete body pain making mobility hard to control his 
limbs and he has a traumatic brain injury (TBI) with head drainage that began in 
June 2010.  He has a closed concussion caused by an American Soldier.  

	b.  He should have been medically discharged because of TBI and his overall 
medical and mental state.  His job duties included serving as a military policeman 
(MP), investigation MP supervisor, training officer, physical security desk sergeant, 
patrolman, and security guard.  He was beaten up by a gang of white Soldiers and 
by Vietnamese Soldiers while on an undercover sting operation with the Criminal 
Investigation Division as an undercover agent.  No one advised him of his benefits 
for medical retirement.

3.  Review of the applicant’s service records show:

	a.  He enlisted in the Regular Army (RA) on 24 April 1968 and he held military 
occupational specialty 95B (MP).  

	b.  He accepted nonjudicial punishment (NJP) on/for:

*	3 December 1968 – being derelict in the performance of his duties as a 
MP on 29 November 1968
*	14 July 1969 – failing to go to his appointed place of duty
*	23 July 1970 – being derelict in the performance of his duties as a MP and 
making a false official record with intent to deceive on 11 July 1970; his 
punishment included a reduction to pay grade E-3

	c.  He was honorably discharged on 29 September 1970, for purpose of his 
immediate reenlist.  His DD Form 214 (Armed Forces of the United States Report of 
Transfer or Discharge) shows he completed 2 years, 5 months, and 6 days of active 
service.

	d.  He reenlisted in the RA on 30 September 1970, for 6 years.

	e.  On 7 October 1970, he accepted NJP for failing to go to his appointed place 
of duty on 3 October 1970.

	f.  He served in:

*	Vietnam from 23 May 1972 to 9 March 1973
*	Thailand from 10 March 1973 to 9 September 1974
*	Alaska from 12 December 1974 to 11 December 1976

	g.  On 15 June 1976, he accepted NJP for failing to obey a lawful order on 
27 April 1976.

	h.  He was honorably discharged, in pay grade E-5, on 29 September 1976, 
under the provisions of Army Regulation (AR) 635-200, chapter 2, for expiration of 
his term of service.  His DD Form 214 (Report of Separation from Active Duty) 
shows he completed 8 years, 5 months and 6 days of total active service.

	i.  On 19 February 1997, the ABCMR determined the following and denied the 
applicant’s request for a physical disability separation: 

*	on 15 July 1976, a physical examination indicated he was not qualified for 
separation and that further tests were ordered
*	he did not indicate any psychiatric complaints or head injury at the time of 
his separation physical examination
*	he was honorably discharged on 29 August 1976, based on the expiration 
of his term of service
*	on 6 August 1987, a Department of Veterans Affairs (VA) Rating Decision 
awarded him a combined service-connected disability rating of 
*	20 percent (%), effective 10 October 1985 (10% for probable PTSD, 
10% for ance vulgaris, and 0% for bilateral sensorineural hearing loss)
*	the VA rating noted that the "Disability is the result of the veteran's own 
willful and persistent misconduct:  drug (heroin and cocaine) abuse"
*	his VA disability ratings had since fluctuated between 10 and 70%
*	at the time of his separation, there were no psychiatric or neurologic 
findings noted, he tested for and was found positive for then or previously 
having syphilis, and there was no evidence of neurosyphilis
*	he was medically qualified for retention or separation
*	he had properly sought compensation from the VA and the VA was able to 
follow his condition and amend his disability rating percentage as his 
condition changed

	j.  An advisory opinion was received from the Medical Advisor, Army Review 
Boards Agency, on 13 November 2019, in the processing of this case.  The medical 
advisor reviewed the record for alleged medical condition(s) that may have 
warranted separation through medical channels or medical condition(s) not 
considered during medical separation processing.  The medical advisor reiterated 
the applicant’s period of service and stated based on review of the available medical 
and military records:

		(1)  The applicant met medical retention standards 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), applicable to his era of service.  He did not have a medical condition 
that warranted separation through medical channels.

		(2)  Concerning a behavioral health condition:  Issues with authority 
(multiple Article 15’s) and self-destructive behavior (alcohol and drug use) were 
possible signs of a behavioral health condition; however, there was no established 
diagnosis and available records were insufficient to establish a specific diagnosis 
and challenging because of concurrent substance use.  The records did show that 
he did not report any symptoms that could be attributed to a behavioral health 
condition; or symptoms consistent with TBI at the time of discharge; nor were any 
found in the in-service medical records reviewed.

		(3)  Information is insufficient to state whether or not the applicant had a 
mental health condition at the time of discharge, but it did appear he met retention 
standards.  Notwithstanding substance use/abuse, racial and occupational stressors 
during military service, and deployment possibly as long as 3 years (Republic of 
Vietnam and Thailand); records indicated good performance after returning stateside 
in September 1974 up through January 1976.

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

4.   By AR 635-200, RA Soldiers may be released from active duty upon completion 
of fulfillment of service obligation and transferred to control of the appropriate 
Reserve Component.  

5.  By law, the VA may award ratings because of a medical condition related to 
service (service-connected) and affects the individual's civilian employability.  The 
findings of the VA as to disability conditions are not binding on the Army.

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board found relief 
was not warranted.  Based upon the medical advisory’s finding that the applicant 
met retention standards and there was a lack of submitted rebuttal by the applicant, 
the Board concluded there was insufficient evidence to show an error or injustice 
which would warrant a change to the applicant 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.  Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), in 
effect at the time, set policies, standards, and procedures to ensure the readiness 
and competency of the force while providing for the orderly administrative separation 
of Soldiers for a variety of reasons.  Chapter 2 of the regulation stated a Soldier 
would be separated upon expiration of enlistment or fulfillment of service obligation. 

2.  AR 40-501 (Standards of Medical Fitness), in effect at the time, governed medical 
fitness standards for enlistment, induction, appointment, retention, and separation 
(including retirement).  Once a determination of physical unfitness is made, the 
Physical Evaluation Board would rate all disabilities using the VA Schedule for 
Rating Disabilities (VASRD).  Ratings can range from 0% to 100%, rising in 
increments of 10%.

3.  AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in 
effect at the time, prescribed policy and implements the requirements of chapter 61 
(Retirement or Separation for Physical Disability) of Title 10, U.S. Code (USC).  The 
regulation stated:

	a.  The mere presence of a medical impairment did not in and of itself justify a 
finding of unfitness.  In each case, it was 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.  A Soldier was physically unfit when a medical impairment prevents 
reasonable performance of the duties required of the Soldier's office, grade, rank, or 
rating.

	b.  Based upon the requirements of section 1203 of chapter 61, Title 10, USC, 
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.

	c.  The VASRD was primarily used as a guide for evaluating disabilities resulting 
from all types of diseases and injuries encountered as a result of, or incident to, 
military service.  Because of differences between Army and VA applications of rating 
policies, differences in ratings could result.  Unlike the VA, the Army must first 
determine whether or not a Soldier was fit to reasonably perform the duties of his 
office, grade, rank, or rating.  Once a Soldier was determined to be physically unfit 
for further military service, percentage ratings were applied to the unfitting conditions 
from the VASRD.  Those percentages were applied based on the severity of the 
condition at the time of separation.  

4.  Title 38, USC, sections 1110 and 1131, permits the 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.

NOTHING FOLLOWS

ABCMR Record of Proceedings (cont)	 AR20160015931

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