IN THE CASE OF: BOARD DATE: 15 June 2022 DOCKET NUMBER: AR20210016017 APPLICANT REQUESTS: in effect, physical disability discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, United States Code, 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 he did not have any fainting episodes for the past 6 years and never had any psychiatric help before he was drafted. He was in excellent health, to include mental capacity, before he was drafted. He still has pretty good health. 3. The applicant was inducted into the Army of the United States on 10 January 1967. His DD Form 47 (Record of Induction) shows his Physical Profile Serial as of 15 November 1966 was “1” in all physical categories. 4. The applicant’s DA Form 20 (Enlisted Qualification Record) shows in item 38 (Record of Assignments) that he arrived in the U.S. Army Pacific, Korea on 10 June 1967 and was assigned to the 122nd Signal Battalion through 3 October 1968, when he departed en route to the Continental U.S. 5. A DA Form 1811 (Physical and Mental Status on Release from Active Service), dated 10 October 1968, shows the applicant’s physical condition on the date of the form was such that he was considered physically qualified for separation or reenlistment without re-examination provided he reenlisted within 90 days. His Physical Profile rating at the time of separation was “1” in all categories. 6. The applicant’s DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was honorably released from active duty on 10 October 1968, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 5 (Separation for the Convenience of the Government), section VII, as an overseas returnee and transferred to the U.S. Army Reserve Control Group (Annual Training). He was credited with 1 year, 9 months, and 1 day of net active service, which includes 1 year, 3 months, and 6 days of foreign service in Korea. 7. There is no evidence in the records available for review and the applicant has not provided any reflecting diagnoses or treatment for any physical or mental health conditions during or after his period of honorable Army service. 8. A letter from the Army Review Boards Agency (ARBA), dated 2 March 2022, requested the applicant to submit any medical documentation pertaining to his mental health or medical conditions, which might be relevant to his application, but he did not respond. 9. MEDICAL REVIEW: 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, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: a. The applicant is applying to the ABCMR appearing to request a referral to the Disability Evaluation System (DES). He states: “I did not have any fainting episodes of fainting for the past 6 years. Never and never any psychiatric help before I was drafted. I had excellent health and mental capacity before I was drafted. Still have pretty good health.” b. The Record of Proceedings outlines the applicant’s military service and the circumstances of the case. His DD 214 shows he entered the regular Army on 10 January 1967 and received an honorable discharge on 10 October 1968 under the provisions provided in Section VII, Chapter 5, of AR 635-200, Personnel Management – Enlisted Personnel (1 June 1967): Overseas Returnee. The authority noted the reason as “SPN 411” designating Overseas Returnee. c. Because of the period of Service under consideration, there are no encounters in AHLTA and no documents in iPERMS. d. No medical documentation submitted with the application. e. There is no evidence the applicant had any medical condition which would have failed the medical retention standards of chapter 3, AR 40-501 prior to his discharge. Thus, there was no cause for referral to the Disability Evaluation System. Furthermore, there is no evidence that any medical condition prevented the applicant from being able to reasonably perform the duties of his office, grade, rank, or rating prior to his discharge. f. Review of his records in JLV show he has no service-connected disability ratings. His medical problem list consists of conditions associated with aging, including mixed hyperlipidemia, cardiac arrhythmia, macular degeneration, type 2 diabetes, benign prostatic hypertrophy, and gastroesophageal reflux disease. The applicant has no musculoskeletal, neurological/seizure, or psychiatric diagnoses. g. It is the opinion of the ARBA Medical Advisor that a referral of his case to the Disability Evaluation System is not warranted. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. Upon review of the applicant’s petition, available military records and the medical review the Board concurred with the advising official finding that a referral of his case to the Disability Evaluation System (DES) is not warranted. The Board determined there is no evidence the applicant had any medical condition which would have failed the medical retention standards prior to his discharge. Furthermore, there is no evidence that any medical condition prevented the applicant from being able to reasonably perform the duties of his office, grade, rank, or rating prior to his discharge. The Board agreed there was insufficient evidence to support the applicant request. Therefore, the Board denied relief. 2. The Board determined DES compensates an individual only for service incurred condition(s) which have been determined to disqualify him or her from further military service. The DES has neither the role nor the authority to compensate service members for anticipated future severity or potential complications of conditions which were incurred or permanently aggravated during their military service; or which did not cause or contribute to the termination of their military career. 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, United States Code, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, provides the authority for separation of enlisted personnel. a. Chapter 5 (Separation for the Convenience of the Government) sets forth the conditions under which enlisted personnel may be discharged, released from active duty or active duty for training, or released from military control for the convenience of the Government. b. Chapter 5, Section VII (Separation of Enlisted Personnel to Preclude Nonproductive Reassignments for Short Periods of Time) provides that commanders are authorized to order separation for convenience of the Government of enlisted personnel returned to the United States, a possession of the United States, or an area of residence in which enlisted, inducted, or ordered to active duty, after completing or having credit for completing the normal overseas tour in the appropriate areas. Unless inductees elect to remain on active duty and volunteer for immediate entry on active duty, they will be separated from active duty and transferred to the U.S. Army Reserve or discharged, as appropriate, if upon arrival from overseas, returnees have the following amount of active duty or less remaining on their current tour: (1) Returnees from a long tour area – 30 days (2) Returnees from a short tour area – 150 days 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. 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, 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. 4. Army Regulation 635-40 establishes the Army Disability Evaluation System (DES) 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. 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. 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. 5. 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. 6. Title 10, U.S. Code, section 1556 requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210016017 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1