ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 29 October 2019 DOCKET NUMBER: AR20170008759 APPLICANT REQUESTS: reconsideration of his previous request for correction of his military service records to show he completed 20 years of service in the Regular Army. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Board of Veterans Appeals (BVA) Findings and Decision, dated 5 May 1988 * Notice of Disagreement with the Department of veterans Affairs (VA) rating, undated * Concurrence with the Physical Evaluation Board (PEB) findings, dated 18 July 1984 * Transcripts of VA Board of Appeals, dated 18 July 1984 * DD Form 4 (Enlistment Reenlistment Document), dated 3 March 1983 * Enlisted Evaluation Reports for the periods 1981 through 1982 and 1982 through 1983 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 AR20100017085, on 10 March 2011. 2. The applicant states he was not able to receive gainful employment. He was unable to hold employment for physical and emotional reasons: He had an inadequate counsel and his early discharge was unwarranted. The VA is manipulating permanent disability compensation decision for Meniere's syndrome and degenerative joint disease of multiple joints. His claim decision was rendered in 1987. 3. Review of the applicant's service records shows: a. The applicant enlisted in the Regular Army on 1 March 1966. He served through a series of enlistments, in a variety of stateside or overseas assignments. b. His last enlistment occurring on 3 March 1983 for a 3-year period. His expiration of term of service (ETS) for that last enlistment was to end on 2 March 1986. c. On 21 May 1984, a medical evaluation board (MEB) evaluated the applicant's medical conditions. His conditions failed retention standards, Meniere's syndrome, and Deafness in the right ear (existed prior to service). The MEB Proceedings show: (1) The recommendation stated that if the applicant was to remain on active duty, it should be within the limitations of his physical profile issued on 7 May 1984 which forbade all bending or running for prolonged periods and limited exposure to noise and no quick turns. (2) The applicant did not present views in his own behalf and indicated that he did not desire to remain on active duty. (3) The findings and recommendation were approved on 5 June 1984. The MEB referred him to a physical evaluation board (PEB). d. On 18 July 1984, the PEB considered his Meniere's syndrome and degenerative arthritis of his right elbow and lumbar spine for fitness and found his conditions unfitting. The PEB recommended a permanent disability retirement with a 70% combined disability. The applicant conferred with his counsel and concurred with the findings and recommendations of the PEB. e. By message, dated 7 August 1984, the commander of the Military Personnel Center, Alexandria, VA, authorized and directed the permanent retirement of the applicant due to physical disability rated at 70% disabling, effective 4 September 1984. f. On 7 August 1984, the U.S. Army Military Personnel Center, Alexandria, published Orders D142-25, retiring the applicant and placing him on the Retired List effective 5 September 1984. g. A DA Form 3713 (Data for Retired Pay), dated 7 August 1984, shows the applicant was permanently retired due to physical disability and that he had completed 18 years, 6 months, and 4 days of active service. h. He retired on 4 September 19874 and he was placed on the retired list in his retired grade of sergeant first class effective 5 September 1984. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows: * he completed 13 years, 2 months and 24 days of active service during the period covered by this DD Form 214 * he had completed 5 years, 3 months, and 10 days of prior active service * his total active service added up to 18 years, 6 months, and 4 days of active service i. On 10 March 2011, the Board considered the applicant's petition for service credit of 20 years, together with the same documents he now provides, but denied his request. The Board concluded that the evidence clearly showed he did not complete 20 years at the time he was retired due to disability. 4. The law (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% and (Title 10, U.S. Code, 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%. 5. The law (Title 38, U.S. Code, sections 1110 and 1131) also permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish an error or injustice on the part of the Army. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career. The VA does not have authority or responsibility for determining physical fitness for military service. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found relief was not warranted. Based upon the documentary evidence provided by the applicant and found within the military service record, the Board found that the applicant did not serve 20 years. Board members noted that he already receives retired pay. Therefore, the Board concluded there was no evidence of an error or injustice which would warrant making a change to the applicant’s military record. 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, U.S. Code chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The USAPDA, under the operational control of the Commander, U.S. Army Human Resources Command (HRC), is responsible for administering the Physical Disability Evaluation System (PDES) and executes Secretary of the Army decision-making authority as directed by Congress. a. The objectives of the system are to maintain an effective and fit military organization with maximum use of available manpower; provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability; and provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected. b. Soldiers are referred to the PDES when they no longer meet medical retention standards in accordance with Army Regulation (AR) 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in an MEB; receive a permanent medical profile rating of "3" or "4" and are referred by an MOS/Medical Retention Board; are command- referred for a fitness-for-duty medical examination; or are referred by the Commander, HRC. c. The PDES assessment process involves two distinct stages: the MEB and the PEB. The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are separated receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. d. The mere presence of medical impairment does not in and of itself justify a finding of unfitness. In each case, it is 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. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. 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. 2. AR 635-40 Personnel Separations Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, establishes the Army PDES and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. 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. 3. AR 40-501 governs medical fitness standards for enlistment, induction, appointment, retention, and separation (including retirement). Once a determination of physical unfitness is made, the PEB rates all disabilities using the VASRD. 4. 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, U.S. Code, 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. 5. Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish an error or injustice on the part of the Army. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career. The VA does not have authority or responsibility for determining physical fitness for military service. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. NOTHING FOLLOWS ABCMR Record of Proceedings (cont) AR20170008759 4 1