ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 16 May 2019 DOCKET NUMBER: AR20160017829 APPLICANT REQUESTS: * medical retirement/disability * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Department of Veterans Affairs (VA) medical records 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 the out-processing clerk threw his military medical records in the trash 1 week prior to his discharge. When he questioned the clerk, he was told “it was none of his business.” He believes this action was unjust and against the Uniform Code of Military Justice because he had significant medical issues that occurred during his period of active duty. His medical conditions of left knee/ankle injury (during basic training), tinnitus/hearing loss, a heart condition, and intestinal disorders occurred or were directly related to his military service. His military medical records do not exist because they were illegally thrown away. He believes he was treated unfairly when his records were thrown away. He currently believes he is being treated unfairly by the absence of any military medical records to support his claim for service-connected disabilities by the VA. 3. Review of the applicant’s record shows: a. He enlisted in the Regular Army (RA) on 2 March 1982 and he held military occupational specialties 77F (Petroleum Supply Specialist) and 76Y (Unit Supply Specialist). He reenlisted in RA on 14 February 1985. a. b. He was promoted to the rank/pay grade of sergeant/E-5 on 4 April 1985. c. He served in Korea from 31 August 1982 to 18 March 1986 and from 1 October 1986 to 13 August 1992. d. On 14 January 1992, he accepted nonjudicial punishment (NJP) for wrongfully transferring duty-free goods between 26 October to 26 November 1991. His punishment included a reduction to pay grade E-4. He elected to appeal and submit additional matters. On 17 January 1992, his appeal was denied and the imposing authority directed the filing of the NJP in his performance fiche. He was reduced to pay grade E-4 accordingly. e. On 4 May 1992, a bar to reenlistment was initiated against him for the NJP action. On 20 May 1992, the bar was approved. f. On 11 June 1992, he submitted a bar to reenlistment appeal through a civilian attorney. His record is void of any action taken on this appeal. g. His service records does not contain the complete facts and circumstances pertaining to his discharge. However, his record contains a DD Form 214 (Certificate of Release or Discharge from Active Duty) showing he was honorably discharged on 24 September 1992, under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), paragraph 16-8, Qualitative Retention Program (Qualitative Management Program (QMP). He completed 10 years, 6 months, and 23 days of active service, with entitlement to half separation pay. The form also shows he was awarded and authorized: * Good Conduct Medal (3rd Award) * National Defense Service Medal * Army Service Ribbon * Overseas Service Ribbon * Marksman Marksmanship Qualification Badge with Rifle Bar (M-16) * Sharpshooter Marksmanship Qualification Badge with Hand Grenade * Noncommissioned Officer Professional Development Ribbon-1 * Army Lapel Button h. On 28 September 1994, the ABCMR denied his petition for correction to his reenlistment eligibility code, restoration of his rank of E-5, and promotion to pay grade E-6. 4. The applicant provided copies of his VA medical records showing he was hospitalized from 31 August to 3 September 2006 and received treatment for hypertension with chest pain. 1. 5. An advisory opinion was received from the Senior Medical Advisor, Army Review Boards Agency, on 5 April 2017, 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 a review of the available documentation found no evidence of a medical disability or condition which would support a change to the character or reason for the discharge in this case. The applicant was separated as a result of a QMP determination. There were no known medical impediments or contraindications to continued service. 6. The applicant was provided with a copy of this advisory opinion for acknowledgement and/or rebuttal. He did not respond. 7. By regulation (AR 635-200) directed the early release of Soldiers with a QMP bar to reenlistment when budgetary or authorization limitations required a reduction in enlisted strength. 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 and do not require reassessment of earlier determinations. 8. By regulation (AR 15-185), applicant do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 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 disability or condition which would support a change to the reason for the discharge, the Board found insufficient evidence to show an error or injustice which would warrant changing the applicant’s narrative reason for separation to medical retirement or disability 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. 5/23/2019 X CHAIRPERSON Signed by: 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, U.S. Code (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, provided the basic authority for the separation of enlisted personnel. Paragraph 16-8 stated that when authorization limitations, strength restrictions, or budgetary constraints require the size of the enlisted force to be reduced, the Secretary of the Army, or his designee, would authorize the early release of Soldiers with a Qualitative Management Program bar to reenlistment. 3. 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 was made, a Physical Evaluation Board rated all disabilities. 4. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24B, 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 is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. b. Once a Soldier was determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VA Schedule for Rating Disabilities. These percentages were applied based on the severity of the condition at the time of separation. b. Based upon the requirements of section 1203 of chapter 61, Title 10, USC, 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, would receive severance pay. 5. 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 1. 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. 6. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that 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.