ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 25 July 2019 DOCKET NUMBER: AR20180013957 APPLICANT REQUESTS: in effect, a medical discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Medical documents * DD Form 2005 (Privacy Act Statement – Health Care Records) * Standard Form (SF) 513 (Consultation Sheet) * SF 600 Chronological Record of Medical Care) * Letter from Department of Veterans Affairs (VA) * Release of Information Request * 2 pages of medical records from VA 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 upon discharge the medical officer told him he would be discharged as a disabled veteran due to the rash he contracted in Ranger School and he would receive approximately $300.00 per month. The disabled veteran status never came and he thought he was denied by someone in the army. He spoke with fellow disabled veterans and was advised his status was not denied, but was an error. 3. The applicant’s complete separation packet is not available for review; however, his record contains a memorandum from the Department of the Army, Chief, Separations Section, dated 18 February 1977, which states, in part, the unqualified resignation of the applicant is approved under the provisions of Army Regulation 635-120 (Personnel Separations – Officer Resignations and Discharges), chapter 3, effective 6 June 1977. 4. The available record is void of evidence showing he had a condition requiring referral to the medical evaluation board (MEB) during his tour on active duty. 5. On 7 June 1977, the applicant was honorably discharged under the provisions of Army Regulation 635-120. He completed 5 years of net active service this period. 6. On 26 June 2019, the Army Review Boards Agency (ARBA) medical advisor provided an advisory opinion. The medical advisor states, in part, the applicant met medical retention standards for atopic dermatitis that were applicable to the applicant’s era of service. There is no indication that this atopic dermatitis interfered with the satisfactory performance of duty. There is no indication that he had any other medical problems that did not meet the standard for continued military service. A review of the available documentation found insufficient evidence of a medical disability or condition that would support a change to the character(s), reason(s), rated condition(s), disability determination(s), disability rating(s), and/or combat relatedness for the discharge in this case. A copy of the complete medical advisory was provided to the Board for their review and consideration. 7. On 14 July 2019, in response to the medical advisory, the applicant request reconsideration of the medical advisory for the following reasons: a. The rash on his hand was contracted and first appeared in the swamp phase of winter Ranger school after the mountain phase. He did not go to see a doctor due to the stress and requirements of training nor was he advised to do so. When the rash appeared it was far more serious than it sounds. It was not just a rash but rather an open wound on his hand. After Ranger school, he reported to Fort Bragg, NC and proceeded with a 4 year plus journey to cure the affliction of his rash but more importantly stop the open wounds on his hands. He does not have medical records; however, he visited many doctors at the Fort Bragg VA. His condition was never diagnosed and there was never a cure. He was given many creams but the condition never went away. No one in his family has the same issue. b. Prior to leaving the army in 1977, he met with a VA doctor who told him he was going to put him on disability at $300.00 per month. He told the doctor it was not necessary. He served during peacetime and felt it was not right to take money for something as small as his hands when many had been more seriously injured. He was told he should take the money because the issue could be more serious in the future and a disabled status would increase his care possibilities from VA. He was never given a disabled veteran status and the contagion has continued in his body for over 40 years and he manages it with creams. He became busy with his life for a few years; however, he did visit a doctor in 1978 about his hand, but again was not given a diagnosis. He eventually gave up and stopped going to VA. Whatever he picked up in 1973, is still in his body. Since no one knows what is causing the problem, no one can guess what might ultimately become of his contagion. He is open to seeing a doctor if it is required. c. As a result of his time in the army, he received a contagion that is undiagnosed, incurable, and continues. Not a day goes by that he does not think that the contagion will take over his body and something bad will come of it. His current medical condition is the direct result of his time in the army. 8. Army Regulation 635-120, chapter 3, then in effect, provided that an officer may tender a resignation under the provisions of this section. A Regular Army Officer must serve in the Armed Forces for a total of 6 or 8 years, as applicable. The officer must either complete 6 or 8 years of service on active duty or a combined total of 6 or 8 years active duty and active Reserve service. 9. 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. 10. 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. 11. 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. 12. 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: After review of the application and all evidence, including the medical advisory opinion and the applicant’s rebuttal to it, the Board found insufficient evidence to grant relief. The Board agreed that the applicant’s available records contain insufficient evidence of a medical disability or condition that would warrant a medical disability retirement or medical discharge at time of separation; there is insufficient evidence that the applicant’s atopic dermatitis was an unfitting condition. The applicant met retention standards and his resignation under Army Regulation 635-120, chapter 3 was approved. The Army has neither the role nor the authority to compensate for progression or complications of service-connected conditions after separation; that role and authority lies with the Department of Veterans Affairs, which operates under a different set of laws. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XXX :XXX :XXX 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 635-120, chapter 3, then in effect, provided that an officer may tender a resignation under the provisions of this section. A Regular Army Officer must serve in the Armed Forces for a total of 6 or 8 years, as applicable. The officer must either complete 6 or 8 years of service on active duty or a combined total of 6 or 8 years active duty and active Reserve service. 3. 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. 4. 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. 5. 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. 6. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180013957 5 1