BOARD DATE: 7 August 2020 DOCKET NUMBER: AR20180008858 APPLICANT REQUESTS: Correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 27 June 1997 to show he was medically retired by reason of physical disability. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 20 May 2018 * DD Forms 214, for the periods ending 17 November 1991 and 27 June 1997 * Department of Veterans Affairs (VA) Healthcare Systems Progress Notes, dated between 2 November 2015 and 12 January 2016 * two photos, undated FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. 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 compensation is needed to help him heal and to get medicine. His health was poor while on active duty after being given a dirty needle, he has human immunodeficiency virus (HIV). Unsterilized needles are the reason for his poor health. 3. Having had prior service in the Regular Army and the Hawaii Army National Guard, the applicant re-enlisted in the Regular Army on 25 September 1996. 4. The applicant’s record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing. However, his DD Form 214 shows he was honorably discharged on 27 June 1997, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-3, by reason of Secretarial authority. He was credited with completing nine months and three days of net active service this period. 5. The applicant provides a VA Healthcare Progress Note, dated 2 November 2015, wherein he stated he thinks he was originally diagnosed with HIV in 1995. He originally attributed his diagnosis to an error that was added to his chart and he thinks his exposure was during inoculation for his military service. He explained that he had never received treatment despite encounters at other VA centers because he didn’t believe it was a true diagnosis for him. 6. The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation and the VA electronic medical record (JLV). The ARBA Medical Advisor made the following findings and recommendations: The applicant is applying to the ABCMR in essence requesting a referral to the Disability Evaluation System so that he may receive a medical retirement. He states “I am asking for a disability retirement. Cause is poor health while on active duty. After giving me a dirty needle, I have HIV disease.” The Record of Proceedings outlines the applicant’s military service and the circumstances of the case. A DD 214 shows the he initially entered the regular Army on 18 November 1987 and was honorably discharged on 17 November 1991 at the expiration of his term of service. He then served in the Hawaii Army National Guard from 18 November 1991 through 29 September 1995, being honorably discharged at the expiration of his term of service. A second DD 214 shows he re-entered the regular Army on 25 September 1996 and was honorably discharged on 27 June 1997 under authority provided in paragraph 5-3 of AR 635-200, Personnel Separations – Enlisted Personnel (26 June 1996), Secretarial Plenary Authority. The supporting medical documentation is from 2015-2016 and is from the VA. It shows he has received treatment for HIV and related complications. His medical history as documented in a November 2015 hospital discharge summary: “On admission, [Applicant] explains that he thinks he was originally diagnosed with HIV in 1995. He originally attributed his diagnosis to an error that was added to his chart and he thinks his exposure was during inoculation for his military service. He explains that he has never received treatment despite encounters at other VA centers because he didn't believe that it was a true diagnosis for him.” No evidence addressing the source of his infection was identified. The applicant had 2 HIV tests which were obtained during his final enlistment, the first on 25 March 1997 and the second on 10 April 1997. While the results of these tests can only be reviewed by the requesting provider, it is assumed these tests were both positive: If the first test had been negative, a second test would not have been performed 2 weeks later. The first test is the usually an ELISA test. Evaluation for HIV in the Army at that time required a second, confirmatory test. This second test, a western blot, is used to detect HIV antibodies, not the HIV virus itself. When used together, the ELISA and Western blot are 99.9% accurate. The Department of Defense, Office of the Assistant Secretary of Defense (Health Affairs), Directive, Human Immunodeficiency Virus-1 (HIV-1), No. 6485.1, March 19, 1991 laid out DoD HIV policy. Of import here is it that it allowed the Secretary of the military department concerned, under plenary authority, to separate an infected member at the member’s request. The applicant’s discharge packet was not found, but this appears to be what occurred here: The applicant was discharged 9 months after reenlisting and 2.5 months after what is believed to have been the confirmatory HIV test. Based on the current evidence, it is the Agency Medical Advisor’s opinion that a referral of his case to the DES is not warranted. BOARD DISCUSSION: The Board carefully considered the applicant's request, supporting documents, evidence in the records, and a medical review. The Board concurred with the conclusion of the ARBA Medical Advisor that the applicant's honorable discharge under Secretarial authority was likely related to his HIV diagnosis. The Board agreed that this diagnosis would not have been a basis for referring him to the DES to be considered for a disability retirement. Based on a preponderance of evidence, the Board determined the record as currently constituted is not in error or unjust. 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 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. Title 10, USC, 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. 3. 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 at less than 30 percent. 4. Title 38, USC, 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 VA rating does not establish an error or injustice on the part of the Army. a. 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. b. 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. As a result, the VA, operating under different policies, may award a disability rating where the Army did not find the member to be unfit to perform his duties. 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. 5. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Physical Disability Evaluation System (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 or her office, grade, rank, or rating. It provides for a medical evaluation board that is convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501, Chapter 3. Disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. a. Paragraph 2-1 provides that the mere presence of impairment does not of itself justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade, or rating. The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated. b. Paragraph 2-2b (1) provides that when a member is being processed for separation for reasons other than physical disability (e.g., retirement, resignation, reduction in force, relief from active duty, administrative separation, discharge, etc.), his or her continued performance of duty (until he or she is referred to the PDES for evaluation for separation for reasons indicated above) creates a presumption that the member is fit for duty. Except for a member who was previously found unfit and retained in a limited assignment duty status in accordance with chapter 6 of this regulation, such a member should not be referred to the PDES unless his or her physical defects raise substantial doubt that he or she is fit to continue to perform the duties of his or her office, grade, rank, or rating. c. Paragraph 2-2b (2) provides that when a member is being processed for separation for reasons other than physical disability, the presumption of fitness may be overcome if the evidence establishes that the member, in fact, was physically unable to adequately perform the duties of his or her office, grade, rank, or rating even though he or she was improperly retained in that office, grade, rank, or rating for a period of time and/or acute, grave illness or injury or other deterioration of physical condition that occurred immediately prior to or coincidentally with the member's separation for reasons other than physical disability rendered him or her unfit for further duty. d. Paragraph 4-10 provides that Medical Evaluation Boards (MEBs) are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualification for retention based on criteria in Army Regulation 40-501 (Standards of Medical Fitness), Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement). If an MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB. e. Paragraph 4-12 provides that each case is first considered by an informal PEB. Informal procedures reduce the overall time required to process a case through the disability evaluation system. An informal board must ensure that each case considered is complete and correct. All evidence in the case file must be closely examined and additional evidence obtained, if required. In addition, in all informal cases, the PEB Liaison Officer of the medical treatment facility having control of the Soldier will be the counselor for the Soldier. As such, the PEB Liaison Officer is primarily concerned with the Soldier's interests. The Soldier will be made fully aware of the election options available to him or her, the processing procedures, and the benefits to which he or she will be entitled if separated or retired for physical disability. 6. Directive-Type Memorandum (DTM) 11-015 explains the Integrated Disability Evaluation System (IDES). It states, the IDES is the joint Department of Defense (DoD) VA process by which the DOD determines whether wounded, ill, or injured service members are fit for continued military service and by which DoD and VA determine appropriate benefits for service members who are separated or retired for a service- connected disability. The IDES features a single set of disability medical examinations appropriate for fitness determination by the Military Departments and a single set of disability ratings provided by VA for appropriate use by both departments. Although the IDES includes medical examinations, IDES processes are administrative in nature and are independent of clinical care and treatment. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180008858 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180008858 5 ABCMR Record of Proceedings (cont) AR20180008858 4