ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 26 September 2019 DOCKET NUMBER: AR20170015311 APPLICANT REQUESTS: in effect, reconsideration of his earlier request for reinstatement into the U.S Army due to erroneous separation from service. He also requests an appearance before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored Letter 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 AR20140004902 on 28 October 2014. 2. The applicant states, in effect, that he was separated under an unconstitutional and discriminatory clause in AR (Army Regulation) 635-40 (Physical Evaluation for Retention, Retirement, or Separation) that are contrary to the federal governing law of 10 USC (United States Code) 1203 (Regulars and Members on Active Duty for more than 30 days: Separation) part II Personnel, chapter 61 (Retirement or Separation for Physical Disability). He has newly discovered information and evidence that are pertinent to the claim that show respondent liability for the cause of action. He also requests an appearance before the Board. 3. The applicant provides a self-authored letter that states he is requesting a reconsideration to decision of denial for case AR20140004902 with a petition for correction of military records. He states: a. He filed a claim for reinstatement to the military, back pay, allowances, and damages, under 42 USC 1983 (Civil Action or Deprivation of Rights). The issue at hand is that the applicant was wrongfully separated from service on 9 September 1994 under an unconstitutional and discriminatory clause in AR 635-40 chapter 7-11 (Removal from the Temporary Disability Retirement List). The applicant notes a conflict between 10 USC 1203b and AR 635-40. 10 USC 1203b states that prerequisites for separation from service but AR 635-40 has an additional clause that states, “If condition is stabilized, or has improved to the extent that disability is less than 30%.” b. This additional clause is unconstitutional, unfair and discriminatory towards service members whose conditions are stabilized and their disability rating is less than 30%. Service members should have been offered re-instatement. A letter from the Defense Office of Hearing and Appeals states that they received his request for payment of back pay, benefits lost and damage due to his alleged wrongful separation. It further stats that they do not provide in-person hearings or the type of relief he is seeking. 4. A review of the applicant’s record shows the following: a. The applicant enlisted in the Regular Army on 6 July 1989. b. He served in Germany from 8 November 1989 to 17 January 1992. c. MEB (Medical Evaluation Board) convened on 11 November 1992 and determined that the applicant’s schizophrenic disorder manifested by prominent auditory hallucinations occurred in the line of duty and referred him to a PEB (Physical Evaluation Board). d. DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 14 December 1992, states that the applicant’s functional limitation in maintaining mental stability, caused by the physical impairments recorded above make the applicant unfit to perform the duties required in the MOS (Military Occupational Specialty) of a personnel administrative specialist. The applicant is advised to contact the Veteran Administration counselor for his service connected disability. The PEB found the applicant to be physically unfit and recommends a combined rating of 30% and placement on the temporary disability retired list (TDRL). On 11 December 1992, he concurred with the board’s finding and waived a formal hearing of his case. e. Orders D254-2, dated 30 December 1992, released the applicant from active duty because of physical disability incurred while entitled to basic pay and under conditions which permit his placement on TDRL effective 8 January 1993 with 30% disability. f. He was retired from active duty service on 8 January 1993. His DD Form 214 shows Block 23 (Type of Separation) retirement and block 28 (Narrative Reason for Separation) physical disability-temporary. Block 26 (Separation Code) is SFK. (TDRL). Item 27 (Reentry Code) is RE-4. (Retired-Not eligible to reenlist) g. TDRL (Temporary Disability List) letter, dated 11 March 1994, attached the applicant to the Fort Leonard Wood Army Community Hospital for periodic Physical Examination. h. TDRL Member Processing sheet, dated 24 May 1994, shows the applicant reported to the patient administration division for an appointment. It also shows, that his condition has not changed, is not stable, all unfitting conditions were addressed and that the applicant is recommended to remain on TDRL. i. Transmittal of TDRL Examination-Failure to Respond, dated 26 July 1994, states that the applicant failed to respond to a concurrence letter sent to him by the PEB. j. Letter sent to the applicant, dated 9 August 1994, from the Fort Lewis PEB, states that the TDRL PEB reviewed his recent periodic medical examination and other available records. The PEB recommended that the applicant be removed from TDRL and stressed that the applicant review block 8 (The board considered the members conditions described in the records) and block 9 (The board finds the member physically unfit and recommends a combined rating) of DA Form 199 (A copy of the form that addresses the update is not available for the Board to review). The letter further states that the applicant could submit a rebuttal and waive a formal hearing based on: * Decision of PEB was based on fraud, collusion, or mistake of law * He did not receive a full and fair hearing * Substantial new evidence exists and is submitted, which by due diligence, could not have been presented before disposition of the case by this PEB k. Orders D175-9, dated 9 September 1994, removed the applicant from the TDRL and discharged him from the service on 9 September 1994 with a 10% disability rating and entitlement to severance pay if he completed over 6 months service. 5. On 29 October 2014, ABCMR denied his request regarding AR20140004902. 6. By regulation, A Soldier on the TDRL must undergo a periodic medical examination and PEB evaluation to decide whether a change has occurred in the disability which the Soldier was temporarily retired. Adjustment will be made at the time of removal from the TDRL to reflect the degree of severity of those conditions rated at the time of placement on the TDRL and any ratable conditions identified since placement on the TDRL. 7. 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. 9. By regulation (AR 635-5) (Separation Documents) states that: * Item 23 (Type of Separation) enter the appropriate term; Release from active duty, Discharge, Retirement, Release from active duty and order to active duty in another status, Release from active duty (ADT), Release from custody and control of the Army, Release from ADT and discharge from the Reserve of the Army and return to the Army National Guard * Item 26 (Separation Code) obtain correct entry from AR 635-1, which provides the corresponding separation program designator code for the regulatory authority and reason for separation * Item 27 (Reentry Code) AR 601-210 (Regular Army and Reserve Components Enlistment Program) determines Regular Army and U.S Army Reserve reentry eligibility and provides regulatory guidance on the RE codes. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found relief was not warranted. The Soldier was temporarily retired in 1994 after receiving a 30% rating by the PEB. The PEB placed him on the TDRL. During the subsequent years, he was reevaluated and rated at 10%. A 10% rating qualified him for separation, not retirement. Board members felt he was separated in accordance with Army regulations in effect at the time. Based upon the documents provided by the applicant with the application, the Board found insufficient evidence of a justification to overturn the previous ABCMR decision. 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 to amend the decision of the ABCMR set forth in Docket Number AR20140004902 on 28 October 2014. 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. 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 7-4 (Requirement for periodic medical examination and physical evaluation board evaluation) states a Soldier on the TDRL must undergo a periodic medical examination and PEB evaluation at least once every 18 months to decide whether a change has occurred in the disability for which the Soldier was temporarily retired. b. paragraph 7-11 (Removal from the Temporary Disability Retired List) states that MILPERCEN (Military Personnel Center) will remove a member from the TDRL at the end of the 5 year statutory period or sooner upon determination by the Secretary of the Army that the member’s disability has become permanent (Stabilized), or has improved to the extent that he is less than 30% disabled, or he is physically fit for return to du ty. c. Paragraph 7-20 (Physical evaluation board processing) states the combined percentage rating at the time of re-evaluation is at least 30%. 2. Title 10 USC 1203 (Regulars and members on active duty for more than 30 days: separation) states that: (a) Separation.-Upon a determination by the Secretary concerned that a member described in section 1201(c) of this title is unfit to perform the duties of the member's office, grade, rank, or rating because of physical disability incurred while entitled to basic pay or while absent as described in section 1201(c)(3) of this title, the member may be separated from the member's armed force, with severance pay computed under section 1212 of this title, if the Secretary also makes the determinations with respect to the member and that disability specified in subsection (b). (b) Required Determinations of Disability.-Determinations referred to in subsection (a) are determinations by the Secretary that- (1) the member has less than 20 years of service computed under section 1208 of this title; (2) the disability is not the result of the member's intentional misconduct or willful neglect, and was not incurred during a period of unauthorized absence; (3) based upon accepted medical principles, the disability is or may be of a permanent nature; and (4) either- (A) the disability is less than 30 percent under the standard schedule of rating disabilities in use by the Department of Veterans Affairs at the time of the determination, and the disability was (i) the proximate result of performing active duty, (ii) incurred in line of duty in time of war or national emergency, or (iii) incurred in line of duty after September 14, 1978; (B) the disability is less than 30 percent under the standard schedule of rating disabilities in use by the Department of Veterans Affairs at the time of the determination, the disability was not noted at the time of the member's entrance on active duty (unless clear and unmistakable evidence demonstrates that the disability existed before the member's entrance on active duty and was not aggravated by active military service), or (C) the disability is at least 30 percent under the standard schedule of rating disabilities in use by the Department of Veterans Affairs at the time of the determination, the disability was neither (i) the proximate result of performing active duty, (ii) incurred in line of duty in time of war or national emergency, nor (iii) incurred in line of duty after September 14, 1978, and the member has less than eight years of service computed under section 1208 of this title on the date when he would otherwise be retired under section 1201 of this title or placed on the temporary disability retired list under section 1202 of this title. 3. Title 42 USC 1983 (Civil Action or Deprivation of Rights) states that every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170015311 0 4 1