ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 1 August 2019 DOCKET NUMBER: AR20180012945 APPLICANT REQUESTS: a medical retirement and a DD Form 214 (Certificate of Release or Discharge from Active Duty) to retire an existing open reserve enlistment order. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 * DA Form 1506 (Statement of Service for Computation of Length of Service for Pay Purposes) * College transcripts * Documents from the Department of Veterans Affairs (VA) * Chronological Record of Medical Care 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: a. He is requesting a medical retirement for loss of military career potential due to service connected injuries that progressed into the loss of both feet and umemployability. He further request a DD Form 214 to retire the existing open reserve enlistment orders. His preference is to complete the 22 months outstanding with the unit he started with at age 17. It would be an honor to put on his uniform once more and complete his military service; however, he is fully aware that such service is without benefit, since his current VA disability award would exceed drill compensation. b. In 1989, he volunteered for the Department of the Army Scientist/Engineer Officer Program and when admitted to University of Texas at El Paso (UTEP) was transferred to the Reserve Officer’s Training Corps (ROTC) and reserve unit as a Cadet. He sustained another ankle injury participating in a field training exercise during his sophomore year, adding to his existing Army medical records. He was medically disqualified for officer basic camp. By Army regulations, either the DA Program coordinator or the reserve unit should have executed a medical evaluation, but failed to act. It may have been prudent clearing a medical evaluation before program acceptance, as he recalls the transition noncommissioned officer in charge stated, "You look healthy enough to me, sign here." Later Orthopedic evaluations discovered bi-lateral ankle ligament laxity requiring ankle braces for ambulation. This issue also caused his existing right knee condition. 3. A DA Form 4187 (Personnel Action), dated 14 June 1989, shows the applicant requested an exception to policy for early separation from the Army. The reason for his request was because the fall semester at UTEP would begin 90 days before his normal expiration of service (ETS). The applicant needed to complete a semester of community level college in order to qualify for an Army ROTC scholarship for the next school year. 4. On 5 July 1989, the applicant’s request for early release was approved and he was relieved from active duty on 1 September 1989. The DD Form 214 issued to him at that time shows he completed 3 years, 9 months, and 20 days of net active service this period. 5. His record is void of documentation that shows he was treated for an injury or an illness that warranted his entry into the Physical Disability Evaluation System (PDES). Additionally, there is no indication he was issued a permanent physical profile or underwent a medical evaluation board (MEB) or a physical evaluation board (PEB) during his period of active duty. 6. Effective 15 October 1990, the applicant was assigned to U.S. Army Third Region, U.S. Army Control Group (ROTC). 7. There is no evidence nor does he provide any evidence to show he completed any additional active duty service that would meet the criteria for issuance of a DD Form 214. 8. On 20 May 2019, the ABCMR obtained an advisory opinion from an Army Review Boards Agency (ARBA) medical advisor, who states, there is insufficient information to determine if the applicant met or did not meet medical retention standards for his reported ankle problems. The only medical record available (one note from 1991) was written after his active duty service. The presumption in these situations is that Army regulations were followed and the discharge was proper and equitable. VA disability rating and the Army disability rating do not necessarily correlate with one another, and did not do so in this case. A copy of the complete medical advisory was provided to the Board for their review and consideration. 9. On 27 June 2019, the applicant was provided a copy of the advisory opinion for comment or rebuttal. He did not respond. 10. Army Regulation 635-5 (Separation Documents) in effect at the time, states the DD Form 214 is a synopsis of the Soldier’s most recent period of continuous active service. It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge. A DD Form 214 will be prepared for all personnel at the time of their retirement, discharge, or release from active duty. Included are USAR personnel who are separated: a. After completing 90 days or more of continuous active duty for training, full time duty training, or active duty support; and b. After completing IADT that resulted in the award of an MOS, even though the active duty was less than 90 days. 11. 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. 12. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Disability Evaluation System 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. Paragraph 3-2 states 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 military service. 13. Army Regulation 40-501 (Standards of Medical Fitness) provides that for an individual to be found unfit by reason of physical disability, he/she must be unable to perform the duties of his or her office, grade, rank or rating. Performance of duty despite impairment would be considered presumptive evidence of physical fitness. 14. Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities that were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish 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 VA does not have the 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. These two government agencies operate under different policies. 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: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and a medical advisory opinion. The Board considered the applicant’s statement, the reason for his separation from active duty, the absence of records showing any additional periods of active duty, the VA documents he provided and the conclusion of the medical advising official. The Board found no evidence of conditions that failed to meet medical retention standards while the applicant was on active duty and the applicant provided none. The Board agreed with the conclusion of the advising official that there was insufficient evidence to determine medical disability processing was warranted. The Board determined, based on a preponderance of evidence, that the separation the applicant received was not in error or unjust and that no additional DD Form 214 is required. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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. ADMINISTRATIVE NOTE(S): Not Applicable 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. 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 U.S. Army Physical Disability Agency is responsible for administering the Army physical disability evaluation system and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in an MEB; when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an MOS Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. b. The disability evaluation assessment process involves two distinct stages: the MEB and 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 or not 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 either are 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. c. The mere presence of a 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. 3. Army Regulation 635-40 establishes the Army Disability Evaluation System 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. a. Paragraph 3-2 states 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 military service. b. Paragraph 3-4 states Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: (1) The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. (2) The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. 4. Army Regulation 40-501 provides that for an individual to be found unfit by reason of physical disability, he/she must be unable to perform the duties of his or her office, grade, rank or rating. Performance of duty despite impairment would be considered presumptive evidence of physical fitness. 5. Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities that were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish 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 VA does not have the 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. These two government agencies operate under different policies. 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. 6. Army Regulation 635-5 (Separation Documents) in effect at the time, states the DD Form 214 is a synopsis of the Soldier’s most recent period of continuous active service. It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge. A DD Form 214 will be prepared for all personnel at the time of their retirement, discharge, or release from active duty. Included are USAR personnel who are separated: a. After completing 90 days or more of continuous active duty for training, full time duty training, or active duty support; and b. After completing IADT that resulted in the award of an MOS, even though the active duty was less than 90 days. 11. 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. ABCMR Record of Proceedings (cont) AR20180012945 0 4 1