IN THE CASE OF: BOARD DATE: 27 March 2020 DOCKET NUMBER: AR20160019366 APPLICANT REQUESTS: * in effect, a disability separation from active duty * a personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Service medical records * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Department of Veterans Affairs (VA) medical records and letter FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code, 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 at the time the military did not have the medical equipment to access his injury. This is in the interest of justice because of the misdiagnosis and the grave affect it had on his family. 3. The applicant provided his: a. Service medical records showing between September 1979 and April 1980, he was accessed for head congestion, chronic low back pain, left painful ankle, sinus and sleeping problems and received medical treatment. He was also placed twice on temporary profiles for low back pain and prescribed physical therapy and duty limitations. b. DD Form 214, for the period from 14 September 1979 to 22 May 1980. c. VA medical records showing between February and March 2008, he received medical treatment for chronic low back pain. d. letter, dated 11 October 2011, wherein the VA advised they were processing his claim and had requested a medical examination to determine the current level of disability. 4. Review of the applicant’s service records show: a. He enlisted in the Regular Army on 14 September 1979. He was assigned to the 1st Infantry Training Brigade, Fort Benning, GA on 14 March 1980. b. On 1 April 1980, he accepted nonjudicial punishment for twice failing to go to his appointed place of duty on 31 March 1980. c. On 2 April 1980, he received Trainee Discharge Program (TDP) counseling for his short-term profiles for low back pain. d. A Psychiatric Evaluation Certificate, dated 9 April 1980, stated he underwent an evaluation on 21 March 1980. The examining psychiatrist nurse clinician and behavioral science specialist determined: * the applicant reported having back and family problems * he had no disqualifying mental disease or condition sufficient to warrant disposition through medical/psychiatric channels * he was mentally responsible both to distinguish right from wrong and to adhere to the right and he has the mental capacity to understand and participate in Board proceedings * his motivation to train appeared negative and he could become a liability to the service * he was amenable to Community Mental Health Activity/unit counseling * psychological testing suggested him to be in high distress and he expressed that distress with somatic symptoms and complaints * he appeared to be depressed, anxious, and nervous with inability to delay gratification and he appeared impulsive and hyperactive * it was suggested he receive command supportive counseling and if it proven to be ineffective and him exhibiting more extreme problematic behavior, strongly suggested he be considered for discharge * he was psychiatrically cleared for any administrative action or disposition as deemed appropriate by his command e. On 15 April 1980, the applicant’s commander recommended the applicant be separated under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-31, Expeditious Discharge Program (EDP), with a general discharge. f. On 15 April 1980, he acknowledged receipt of the proposed separation and voluntarily consisted to the separation. He also acknowledged that: * he understood if he were issued a general discharge, he could expect to encounter substantial prejudice in civilian life * he was provided the opportunity to consult with counsel * there was no automatic review of his discharge by the Army Discharge Review Board or the ABCMR; however, the act of consideration did not imply an upgrade of his discharge * he elected not to submit a statement on his own behalf g. On 16 May 1980, the applicant's immediate commander initiated separation action against him under the EDP. He stated the specific reasons as the applicant's demonstrated character and behavior characteristics not compatible with satisfactory continued service. The applicant could not and would not adapt socially or emotionally to military life and his attitude towards the service was substandard. h. He received TDP counseling on/for: * 16 April 1980 – reporting to sick call daily for back pain and riding a profile since his assignment and disorderly conduct while on sick call demanding a profile * 12 May 1980 – not displaying an aptitude or attitude consistent with a successful Soldier i. On 19 May 1980, the separation authority approved the applicant's separation under the provisions of AR 635-200, paragraph 5-31, and his transferred to the U.S. Army Reserve (USAR). j. He was honorably separated accordingly on 22 May 1980 and was transferred to the USAR Control Group (Annual Training). His DD Form 214 shows he completed 8 months and 9 days of net active service. k. Orders Number D-07-049591, dated 31 July 1985, honorably discharged him from the USAR, effective 5 August 1985. 5. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s medical records in the Armed Forces Health Longitudinal Technology Application (AHLTA) and Joint Legacy Viewer (JLV) and made the following findings and recommendations: The applicant, a 09B00 Trainee, is requesting a medical discharge. He contends the military did not have the equipment to diagnose his problem during service and misdiagnosed him. A 14 July 2009 West Los Angeles VA note indicates he had a spinal fusion and diskectomy on L5-S1 in 2005 (25 years after separation). Ten days after entry into active duty, the applicant began being seen for back pain with no history of injury. He was seen at least 13 times from Sept 1979 to Apr 1980 including at least 1-2 ER visits specific for back pain. Back films were normal. Labs to rule out arthritis and other systemic etiologies were also negative. Records show applicant was on a temporary profile for 2 days in Sept and 3 days in Oct 1979; and then one month from 15 Feb 1980 to 13 Mar 1980. He was released from active duty due to failure to maintain acceptable standards of service and transferred to USAR Control Group. The discharge exam was completed but not found in submitted records. A review of the available documentation found insufficient medical evidence of a medical disability or condition which would support a change or reason for the discharge in this case. As such, referral to the Army DES for consideration of medical disability is not indicated. 6. By regulations: a. AR 635-200, members who had completed at least 6 months but less than 36 months of continuous active service on their first enlistment and who had demonstrated that they could not or would not meet acceptable standards required of enlisted personnel because of poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential could be discharged under the EDP. b. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), a Soldier may be discharged from the Army for not meeting retention standards in accordance with chapter 3 of AR 40-501 (Standards of Medical Fitness) and awarded a disability rating assigned by the Army’s disability system. 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. 7. 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. 7. 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: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record and length of service, the nature of his misconduct, the record of counseling, his pre- separation examinations, the reason for his separation from active duty and his separation from the USAR. The Board found insufficient evidence of in-service mitigation to overcome the misconduct and the applicant provided no evidence of post- service achievements or letters of reference in support of a clemency determination. The Board considered the review and conclusions of the medical advising official and agree with the recommendation. Based on a preponderance of evidence, the Board determined that the reason for the applicant’s separation was not in error or unjust. 2. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 3. 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 :XXX :XXX :XXX 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, United States Code, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3 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 Separations), in effect at the time, set forth the basic authority for the separation of enlisted personnel. Chapter 5 of the regulation stated members who had completed at least 6 months, but less than 36 months of continuous active service on their first enlistment and who had demonstrated that they could not or would not meet acceptable standards required of enlisted personnel because of poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential could be discharged under the Expeditious Discharge Program. It provided for the expeditious elimination of substandard, nonproductive Soldiers before board or punitive action became necessary. 3. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, set forth policies, responsibilities, and procedures that applied in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his/her office, grade, rank, or rating. Only the unfitting conditions or defects and those which contributed to unfitness would be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. Soldiers who sustained or aggravated physically-unfitting disabilities must meet the following line-of- duty criteria to be eligible to receive retirement and severance pay benefits. The regulation stated: a. The mere presence of a medical impairment does 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. b. The VA Schedule for Rating Disabilities (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. Once a Soldier was determined to be physically unfit for further military service, percentage ratings were applied to the unfitting condition(s) from the VASRD. Those percentages were applied based on the severity of the condition at the time of separation. 4. 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, the Physical Evaluation Board rated all disabilities using the VASRD. Ratings could range from 0% to 100%, rising in increments of 10%. 5. 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, USC, 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. 6. 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. 7. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160019366 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1