ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 20 August 2019 DOCKET NUMBER: AR20180015429 APPLICANT REQUESTS: reconsideration of his prior request for physical disability retirement. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: • DD Form 149 (Application for Correction of Military Record) • self-authored letter • Army Commendation Medal (ARCOM) Certificate • Operation Desert Storm Certificate • two DA Forms 2166-7 (Noncommissioned Officer Evaluation Report (NCOER)) • two DD Forms 214 (Certificate of Release or Discharge from Active Duty), Member -1 and Member -4 copies • multiple Department of Veterans Affairs (VA) medical records ? VA Form 21- 4138 (Statement in Support of Claim) ? Sergeant First Class (Ret) ____ ____’s letter to the VA • Social Security Administration (SSA) letter • multiple Cape Fear Neurology Associates medical records and letters • National Personnel Records Center 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 AR1999020674 on 18 August 1999. 2. The applicant states: a. He would like his discharge amended to show physical disability retirement because he got sick from the Pyridostigmine Bromide pills (anti-nerve agent pill used during Gulf War) he was ordered to take during the Gulf War. He obeyed his sergeants and took the medicine in order to protect him, but he got sick and they knew he was sick and wouldn’t even tell him. That is the injustice. b. If he had been told by his platoon sergeant and section sergeant that he was ill, he would have requested a later voluntary expiration term of service (ETS) date and asked for a more in depth ETS physical examination. c. His section chief gave him a bad NCOER that he just got to see on 18 May 2018. His platoon sergeant gave him a letter dated 21 September 1996 wherein he states he observed his failing health during the Gulf War but no one mentioned it to him. After his parents passed away, his older siblings told him he needed some mental health help and put him out of his family home. d. He was admitted to the Miami VA Hospital from 13 April 1995 through 16 May 1995 where he was told he had many mental and physical problems. After he was awarded his SSA disability, he moved back to North Carolina (NC) so he could be close to the Fayetteville, VA Hospital as he was having a number of problems with his health. e. He made an appointment with Dr. ____ in Spring Lake, NC and he referred him to Cape Fear Neurology in Fayetteville, NC. Once there, he told the neurologists he was a Gulf War veteran, so they assigned him to Dr. ____ ____, who told him he was the former Chief Neurologist at Walter Reed Army Medical Hospital, in charge of the Gulf War study for U.S. and coalition forces. After all the tests Dr. ____ ____ performed on him, he told him his neurons were not making a complete path, for which there was basically no cure and he was going to die. 3. The applicant enlisted in the Regular Army on 10 June 1974 and was honorably released from active duty on 4 June 1976 after 1 year, 11 months, and 25 days of net active service this period. The authority and reason for his release from active duty is not listed on his DD Form 214 covering this period of service. 4. He enlisted in the Florida Army National Guard (FLARNG) on 9 February 1977 and his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows he was honorably released from the FLARNG after 7 months and 3 days on 11 September 1977 for the purpose of enlistment in the U.S. Army Reserve. 5. Records indicate he then again enlisted in the Regular Army on 29 November 1977. 6. He provided a certificate showing he was awarded an ARCOM on 13 April 1991 for exceptionally meritorious achievement in support of actions against a hostile force in the Persian Gulf during Operation Desert Storm, while assigned as a wire systems team chief for Company B, 25th Signal Battalion. 7. He also provided an Operation Desert Storm certificate signed by the Commander, XVII Airborne Corps, Lieutenant General ____ ____ on 2 August 1991, stating the applicant served with distinction to achieve freedom from tyranny in support of Operation Desert Storm. 8. The applicant provided copies of two NCOERs. The first NCOER is an annual report covering the period January 1991 through December 1992, which he concurred with and signed on 12 February 1992, and shows the following: a. He was rated “No” in Part IV (Values/NCO Responsibilities), Section A, for being disciplined and obedient to the spirit and letter of a lawful order; is honest and truthful in word and deed; and maintains high standards of personal conduct on and off duty. The corresponding Bullet Comments for that section state • he placed himself in a compromising position with subordinates • he had questionable integrity • his off duty conduct was unprofessional. b. He received “Needs Improvement” ratings in Part IV, Sections B – F for Competence, Leadership, and Responsibility and Accountability. Some of the corresponding Bullet Comments state: • his job performance dropped dramatically over a 4-month period • Soldiers are often left unsupervised due to the applicant’s medical appointments • he did not demonstrate strong, dynamic leadership • he needed to project self-confidence, authority and enthusiasm • he was seldom prepared to conduct proper training • care and maintenance of equipment was not being properly performed c. His Rater deemed his overall potential as “Marginal”. His Senior Rater deemed his overall performance and potential to be both be “Fair” and his corresponding Bullet Comments state: • he lacked the leadership to motivate Soldiers • he didn’t strive to be the best • he didn’t set the example of “Be, Know, Do” 9. The second NCOER he provided is a Change of Rater NCOER covering the period January 1993 through April 1993, which he concurred with and signed on 16 April 1992. a. This NCOER shows in Part IV, Section A he received all “Yes” ratings and in Part IV, Sections B – F he received all “Success” ratings. b. His Rater deemed him “Fully Capable” and his Senior Rater deemed his overall performance and potential to be both “Successful – 3.” His Senior Rater commented the applicant should be promoted with is peers 10. His records contain a DA Form 4187 (Personnel Action), showing on 24 January 1992, he requested approval of his request for separation under the Voluntary Separation Program. At the time of his request, his ETS was 22 May 1995 and he requested an ETS date of 31 March 1992. His company and battalion commanders recommended approval of his request and his Brigade Commander approved the request on 3 February 1992. 11. His available service records do not show: • he was issued a permanent physical profile rating • he suffered from a medical condition, physical or mental, that affected his ability to perform the duties required by his MOS and/or grade or rendered him unfit for military service • he was diagnosed with a medical condition that warranted his entry into the Army Physical Disability Evaluation System (PDES) • he was diagnosed with a condition that failed retention standards and/or was unfitting 12. He was honorably discharged on 31 March 1992, after 14 years, 4 months, and 2 days of active duty this period, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) paragraph 16-8, Fiscal Year 1992 Enlisted Voluntary Early Transition Program and transferred to the U.S. Army Reserve Control Group (Individual Ready Reserve). On 31 March 1992 he received a Special Separation Benefit (SSB) payment of $44,155.80. 13. The applicant provided a VA Form 10-7978M (Medical Record – Discharge) and an accompanying Discharge Summary which show he was admitted to the VA Medical Center in Miami, FL on 13 April 1995 and released on 16 May 1995 upon referral from the VA Clinic at Riviera Beach. While there he was diagnosed with the following: • psychotic disorder not otherwise specified • somatization disorder • adjustment disorder with mixed features • chronic alcohol dependence • osteoarthritis of the cervical spine • hypertension • clubbed foot • jobless and homeless, having last worked in March 1992 14. An SSA Explanation of Determination, dated 24 October 1995, shows the applicant was deemed disabled by the SSA effective 1 April 1995. 15. Retired SFC ____ ____ composed a letter to the VA, dated 27 August 1996, in support of the applicant’s Persian Gulf War Claim. He states he was the applicant’s platoon sergeant during the Gulf War Campaign and at Fort Bragg, NC from January 1991 through March 1992. He noticed the following symptoms in the applicant: • memory loss: trouble remembering instructions given to him 30 minutes later • shortness of breath: trouble climbing flights of stairs without stopping or performing vigorous activities without stopping to catch his breath regularly • sleep disturbance and neuropsychological problems: while asleep the applicant would jump up from his sleep and look or stare in a dazed manner 16. Retired SFC ___ ____ also submitted a VA Form 21-4138 (Statement in Support of Claim), dated 21 September 1996, wherein he reiterates what he wrote in the above letter. 17. In December 1998, the applicant applied to the ABCMR requesting correction of his records to reflect physical disability retirement and on 18 August 1999, the Board denied his request. 18. The applicant provided multiple medical records from the Cape Fear Valley Health System. An examination completed on 29 June 2000 shows an unremarkable magnetic resonance imaging (MRI) examination of the brain. a. Dr. ____, provided a letter dated 31 July 2000 after neurological consultation with the applicant for symptoms of muscle spasms, paresthesia, diffuse dysesthetic discomfort in the upper and lower extremities, recurrent headaches, low energy level, concentration difficulties, memory fluctuations, unsteadiness, and a history of seizures post Gulf War syndrome, per the applicant. b. Given the concerns of possible post Gulf War syndrome symptomatic treatment and further evaluation at a specialized post Gulf War evaluation center per clinical course and follow up should be considered. After such evaluation, follow up with the results would follow. c. An electroencephalogram (EEG) completed on 21 August 2000 did not reveal any frank epileptiform activity or paroxysmal disturbances. 19. Records indicate the applicant was rated with a combined service-connected disability of 80 percent by the VA effective November 2018 for major depressive disorder (70 percent), back strain (10 percent), and limited motion of ankle (10 percent). 20. On 2 July 2019, the Army Review Boards Agency (ARBA) medical advisor provided an advisory opinion, stating: a. There are no service medical records available from the applicant and there is insufficient information to determine if he met or did not meet medical retention standards in accordance with chapter 3, Army Regulation 40-501 (Standards of Medical Fitness). The presumption in such a situation is that Army regulations were followed and the discharge was proper and equitable. b. There is insufficient evidence of a medical disability or condition that would support a change to the character, reason, or disability determination in this case. The Army has neither the role nor the authority to compensate for progression or complications of service-connected conditions after separation. A copy of the complete medical advisory was provided to the Board for their review and consideration. 21. A copy of the advisory opinion was provided to the applicant on 5 July 2019 and he was given an opportunity to submit comments, but he did not respond. 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, his record of service, his deployment, the reason for his separation (Voluntary request) and his transfer to the U.S. Army Reserve. The Board considered the applicant’s post-service medical documents, a statement from one of his NCOs, the SSA and VA determination, the absence of service medical records and the review and conclusions of the advising official. The Board concurred with the advising official, finding insufficient evidence to show that the applicant had an in-service condition or conditions that failed to meet medical retention standards, prior to his voluntary separation. Based on a preponderance of evidence, the Board determined the applicant’s separation under the Enlisted Voluntary Early Transition Program was not in error or unjust. 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, 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. 2. 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. 3. 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, U.S. Code, 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. 4. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, provides policy guidance pertaining to the separation of enlisted personnel. a. Paragraph 16-8 provides for the early separation of Soldiers due to a reduction in force, strength limitations, or budgetary constraints, either voluntary or involuntary separation. The Total Army Personnel Command (PERSCOM) would implement the program by issuing separation instructions pertaining to a specific class or category of Soldiers. b. In late 1991 and early 1992, PERSCOM announced implementing instructions for the Fiscal Year 1992 enlisted voluntary early transition program and provided for the voluntary early release from active duty for specific categories of Soldiers with monetary incentives authorized. One of these incentives was an SSB, a lump sum payment equal to 15 percent of the Soldier’s basic monthly pay, multiplied by 12 and again multiplied by the Soldier’s years of service. Soldiers approved for an SSB must enter into a written agreement to serve in the Ready Reserve for a period of not less than 3 years. ABCMR Record of Proceedings (cont) AR20180015429 ABCMR Record of Proceedings (cont) AR20180015429 6 7 1