ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF BOARD DATE: 28 October 2019 DOCKET NUMBER: AR20170013449 APPLICANT REQUESTS: in effect, correction of his military records to show he served honorably on active duty, and to show he was awarded a 100 percent (%) disability rating. He also requests a personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * college transcript * DA Form 3434 (Notification of Personnel Action (Nonappropriated Funds Employee)) * Army National Guard (ARNG) Retirements Points History Statement * Information Report 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 there must be some acknowledgement in his military records that he served honorably on active duty for public record. He was unable to find any information; either by his name, social security number, or date of birth when he checked the Army records section. He wants to add his service time to retirement time (1991 to 1995) as a non-appropriated fund employee. Someone forgot to submit pertinent information necessary for a complete evaluation. He is listed as 40% disabled instead of 100%. This was brought to his attention while applying for a home loan when the clerk mentioned he was eligible for both retirement and disability. 3. The applicant provides the following: a. A college transcript showing he earned an Associate Degree on 16 June 1974. b. A DA Form 3434 showing he was a nonappropriated funds employee and resigned from the position of Community Bowling Manager on 25 February 1995. c. An ARNG Retirement Points History Statement, dated 2 June 2017, showing he completed 18 years, 11 months, and 18 days of creditable service for retired pay as of 3 February 1997 and he served in the: * Regular Army (RA) from 30 November 1966 to 24 May 1970 * U.S. Army Reserve (USAR) from 25 May 1970 to 29 November 1972 * had a non-military civilian break from 30 November 1972 to 2 May 1977 * Delayed Entry Program from 3 May to 10 October 1977 * RA from 11 October 1977 25 October 1991 * had a non-military civilian break in service from 26 October 1991 to 30 July 1995 * ARNG from 31 July 1995 to 3 February 1997 * served in the served in the m the following: d. An Information Report, dated 21 June 2017, showing his status as retired. 4. Review of the applicant’s service record shows: a. He enlisted in the RA on 30 November 1966. He served in Vietnam from 18 June 1967 to 17 June 1968 and in Okinawa from 29 January 1969 to 22 May 1970. b. He was honorably released from active duty on 24 May 1970 and was transferred to the USAR. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he completed 3 years, 5 months, and 25 days of active service. c. He reenlisted in the RA on 11 October 1977. He served in Germany from 7 October 1979 to 2 October 1982 and from 28 April 1986 to 31 May 1992. d. A DA Imposed Bar to Reenlistment Under the Qualitative Management Program (QMP) memorandum, dated 15 December 1989, notified him of the board’s decision to bar him from reenlistment and his rights. e. An Appeal of DA Imposed Bar to Reenlistment Under the QMP (Enlisted Qualitative Early Separation Program) memorandum, dated 29 March 1991, notified the applicant’s commander of the DA Standby Advisory Board’s disapproval of the applicant’s appeal and his mandatory separation no later than 31 July 1991. f. On 9 October 1991, the separation authority approved the applicant’s discharged under the provisions of Army Regulation (AR) 635-100 and AR 635-200 (Personnel General – Enlisted Personnel). g. Accordingly, he was honorably discharged on 25 October 1991, by reason of Reduction in Authorized Strength – Qualitative Early Transition Program. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed: * 14 years and 15 days of active service * 3 years, 5 months, and 25 days of prior active service * 2 years, 11 months, and 11 days of prior inactive service * 8 years, 5 months, and 25 days of foreign service h. He enlisted in the Indiana ARNG (INARNG) on 31 July 1995. i. A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 18 March 1996, stated he received medical treatment for an injury to his right shoulder after coming off a field training on 19 January 1996, while attending the active component Advanced Noncommissioned Officer course. j. A DD Form 261 (Report of Investigation), dated 18 March 1996, stated his injury was found in the line of duty. k. A DA Form 3349 (Physical Profile), 17 November 1996, stated he was assigned a temporary profile for weakness of his right arm and assignment limitations of no physical training and overhead work. l. His record is void of the complete facts and circumstances surrounding his separation from the INARNG. However, his available record contains the following: (1) A Physical Disability Retirement memorandum, dated 10 January 1997, wherein he was notified of the findings and recommendations of the U.S. Army Physical Disability Agency (USAPDA) to place him on the Temporary Disability Retired List (TDRL) with a 40% disability rating and his rights. (2) A Physical Disability Retirement memorandum, dated 10 January 1997, wherein the USAPDA forwarded to the National Guard Bureau a copy of DA Orders Number D7-3, dated 10 January 1997, directing the applicant’s temporary disability retirement. The memorandum also stated the applicant had been advised of his retirement and required actions he must take. 5. On 28 July 1999, the ABCMR, in response to his request for early retirement versus separation by reason of physical disability, determined the following: * the available records provided to the Board showed he served on active duty from 30 November 1966 to 24 May 1970 and again from 11 October 1977 to 25 October 1991 * his final DD Form 214 showed he was discharged by reason of Reduction in Authorized Strength – Qualitative Early Transition Program * his records also indicated he was entitled to full separation pay * there was no indication in the available record that he continued to serve in any forces capacity until his later separation on 7 July 1998 or that he was separated by reason of physical disability * when it had been determined that no effective relief could be granted, his application was being retuned without action by the Board for that reason n. His available record is also void of any indication of his removal from the TDRL and final disposition and disability rating. Also, a query of the following showed: * the integrated Personnel Electronic Records Management System was void of any indication of his removal from the TDRL, final disposition, and/or disability percentage * his records were not uploaded to the Soldier Management System, located on the AHRC-STL Integrated Web Service 6. By 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. 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: After reviewing the application and all supporting documents, the Board found relief was not warranted. The applicant’s contentions were carefully considered. Evidence of record shows he separated military service with an honorable character of service. Therefore, the Board did not consider an action to take in reference to his request for a discharge upgrade. The Board agreed subsequent civilian service is not added to military retired pay unless the member separated under a provision of public law that authorized such: for example, The Early Retirement Authorization (TERA). Finally, no evidence was available for the Board to review that shows he was retired with a 100% disability percentage. The applicant is advised there is no provision under regulatory guidance that provides for the listing of physical disability percentages on the DD Form 214, nor listing disability percentages awarded by the Department of Veterans Affairs in the 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, 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), paragraph 4-24B, 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. 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, the Physical Evaluation Board rated all disabilities using the VASRD. Ratings could range from 0% to 100%, rising in increments of 10%. 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, 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. 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 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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170013449 5 1