ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 1 August 2019 DOCKET NUMBER: AR20170006904 APPLICANT REQUESTS: to be considered for a medical discharge/retirement based upon the fact he has been found to be 70% service connected by the Veteran Affairs (VA) for post-traumatic stress disorder (PTSD) which he contends developed as a result of his service in Vietnam. He would also like to appear before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * ABCMR denial letter for AR20040002783 * Record of Proceedings (ROP) for AR20040002783 * VA claim entitlements * VA Rated Disabilities * Copy of Social Security Administration benefits letter 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 he would like to be reconsidered for a medical discharge or retirement based on the service connected PTSD which developed as a result of his service in Vietnam. He would like to qualify for retirement benefits on his medical conditions. He would also like to appear before the Board. 3. The applicant provides a copy of a VA rating of 100% disability and is considered to be permanently and totally disabled with coronary artery disease at 100%, PTSD at 70%, asthma at 30%, herniated disk at 40%, diabetes mellitus type II at 20%, and diabetic nephropathy at 80% as service connected. 4. A review of the applicant’s service record shows the following: a. He enlisted in the Regular Army (RA) on 10 September 1969. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows that he discharged on 16 April 1972 with an honorable discharge for transfer to the United States Army Reserve (USAR). b. He served in Vietnam from 25 August 1970 to 15 April 1972. c. Orders 171-170, dated 19 October 1977, discharge the applicant from the USAR with an honorable discharge. d. He reenlisted in the USAR on 23 February 1979, and reenlisted in the RA on 28 April 1980, 12 July 1985, 8 April 1988, and 4 March 1992. e. DD Form 3349 (Physical Profile) dated 27 February 1992, shows that the applicant has a permanent profile for L5, S1, KNP (Ruptured Disc). His physical fitness instructions include run at own pace and distance, no rucking, pushups and sit ups at own pace and distance, must wear hearing protection and an annual hearing test is required. The record is absent evidence showing he participated in the medical evaluation process for a fitness determination after receiving the P3 Profile. f. His DD Form 214 shows that the was discharged from active duty service on 3 March 1995 with an honorable discharge. He served 14 years, 8 months, and 15 days. He had total prior active service of 3 years, 5 months and 29 days. His narrative reason for separation states early release program-special separation benefit. g. A Medical Advisory Opinion, dated 31 March 2017, states that no military medical or personnel records are made available for review and based on the lack of sufficient documentation, no determination regarding possible military medical disability/medical retirement can be made at this time. h. The applicant was sent an ex-parte on 7 June 2017 and provided the following rebuttal. The applicant wrote a self-authored statement, dated 12 June 2017 that states he requested a medical retirement due to health issues and that the USAR would not or couldn’t not provide medical care to address his health issues. He did not personally claim PTSD on his own but it arose in conjunction with the professional evaluation of a licensed psychiatrist. His PTSD caused his first marriage to fail due to his continuous anger issues and he requested assistance from the VA to help resolve the issues. He was ordered to the gulf war and experienced stress due to his spouse desertion and leaving his children behind. During the deployment he experienced back issues and received medication to control the pain but was found to be in poor health and was MEDIVAC’s back to Germany. He was misguided in accepting an early release thinking he could later return to service once his medical problems were resolved. He has a reading disability which contributed to his poor ability to understand the information provided for the early release program. This disability is documented in a letter from the Virginia Psychological Services. The lack of military Personnel and Medical records for review are in the repository of Saint Louis Army Reserves can be requested by the ABCMR. His proof of medical disability which did not allow him to continue his normal time in service is provided in a letter from the VA as proof of his disabled medial status. 5. By regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. 6. By regulation, AR 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, and appointment, including officer procurement programs. Individuals evaluated will be reported as Medically Acceptable or Medically Unacceptable by reason of medical fitness or medical unfitness. 7. By regulation, Army Regulation (AR) 635-5 (Personnel Separations - Separation Documents) * Item 24 (Character of Service) authorized entries are honorable, under honorable conditions (general), under other than honorable conditions, bad conduct, dishonorable, to be determined * Item 25 (Separation Authority) enter the regulatory or statutory authority cited in directives authorizing separation * Item 28 (Narrative Reason for Separation) enter the reason for separation (shown in AR 635-5-1) based on the regulatory or statutory authority BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that they could reach a fair and equitable decision without a personal appearance by the applicant. Additionally, the Board concluded that relief was not warranted. Based upon the medical advisory finding that the applicant was capable of executing all duties as assigned (fit for duty); therefore, 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) 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, provides the evaluation for physical fitness of Soldier who may be unfit to perform their military duties because of physical disability. a. Paragraph 1-1 (Purpose) Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, or rating. A correlation must be established between the Soldiers medical defects and physical capabilities. b. Paragraph 4-26a (Army disability rating review board) states that the ADRRB may notify or amend a fully executed retirement order of a Soldier based on whether substantial new evidence exists which by due diligence, could not have been presented before disposition was accomplished, and the evidence would have warranted a higher percentage of disability if presented before disposition. 3. AR 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, and appointment, including officer procurement programs. Individuals evaluated will be reported as Medically Acceptable or Medically Unacceptable by reason of medical fitness or medical unfitness. 4. 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. 5. AR 635-5 (Personnel Separations - Separation Documents) * Item 24 (Character of Service) authorized entries are honorable, under honorable conditions (general), under other than honorable conditions, bad conduct, dishonorable, to be determined * Item 25 (Separation Authority) enter the regulatory or statutory authority cited in directives authorizing separation * Item 28 (Narrative Reason for Separation) enter the reason for separation (shown in AR 635-5-1) based on the regulatory or statutory authority ABCMR Record of Proceedings (cont) AR20170006904 0 4 1