IN THE CASE OF: BOARD DATE: 13 July 2022 DOCKET NUMBER: AR20210016106 APPLICANT REQUESTS: a physical disability discharge and personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * TDP Counseling Form * medical records (10 pages) * DA Form 664 (Serviceman’s Statement Concerning Application for Compensation from the Veterans Administration) * Reason for Separation election FACTS: 1. The applicant did not file within the three-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 underperformed at the rifle range on 11 and 17 April 1978, due to a knee injury. The drill sergeants did not record his injury and instead processed him under the Trainee Discharge Program (TDP). a. On 11 April 1978, he was seen in the emergency room (ER) at Fort Jackson for knee pain; it is noted [in his medical records] he was wearing a knee brace and had a follow up with orthopedics. b. He was also seen for knee pain and was diagnosed with symptoms of chondromalacia on 17 April 1978. He has a current knee injury which is the same as the on experienced in service. c. He contends he was improperly advised regarding the nature of his discharge. he was advised an honorable discharge was the best option. He was never counseled on the option to seek a medical discharge since the reason for his poor ranger performance was clearly due to injury resulting in his discharge from service. 3. The applicant underwent a medical examination for the purpose of enlistment on 23 November 1977. His Standard Form (SF) 93 (Report of Medical History) shows he reported he was in good health. The corresponding SF 88 (Report of Medical Examination) shows he was qualified for service and assigned a physical profile of 111121. A physical profile, as reflected on a DA Form 3349 (Physical Profile) or DD Form 2808, is derived using six body systems: "P" = physical capacity or stamina; "U" = upper extremities; "L" = lower extremities; "H" = hearing; "E" = eyes; and "S" = psychiatric (abbreviated as PULHES). Each body system has a numerical designation: 1 meaning a high level of fitness; 2 indicates some activity limitations are warranted, 3 reflects significant limitations, and 4 reflects one or more medical conditions of such a severity that performance of military duties must be drastically limited. Physical profile ratings can be either permanent or temporary. 4. The applicant enlisted in the United States Army Reserve on 23 November for a period of 6 years in the delayed entry program (DEP). He was discharged from the DEP enlisting in the Regular Army for a period of 3 years on 17 March 1978. 5. A TDP Counseling shows: a. SSG observed [the applicant] on 11 April 1978. He fired very poorly on field firing so he was allowed to refire with assistance, but he improved very little. b. SSG counseled [the applicant] on 11 April 1978 about his poor performance at practice record fire. He reconfirmed his zero and received one-on-one instruction but still failed to qualify with his M-16 rifle on 17 April 1978. He fired 16. [The applicant] was counseled again on 17 April 1978, was given additional individual instruction and he fired 13. He was referred to the company commander. c. The company commander counseled [the applicant] was counseled on 17 April 1978 after his second failure to qualify with his weapon. He rezeroed on 18 April [1978], refired field fire on 19 April [1978] and failed to qualify after two more attempts. He fired 14 on 20 April [1978] and 12 on 24 April 1978. The company commander counseled him again on 25 April 1978. He has completely given up and, if recycled, will only cause problems for his new unit. The company commander referred him for to 1SG further evaluation. d. 1SG states the applicant was referred to him by the company commander on 25 April 1978. He has failed to qualify with his M-16 after 4 attempts. He has been rezeroed twice, and refired field fire twice but his cores have gotten worse. He is completely unmotivated to continue training. Recommend discharge. 6. On 27 April 1978: a. Action was initiated to separate the applicant under the provisions of the TDP. The recommendation states [the applicant] lacks the aptitude to remain in BT. He’s nervous, doesn’t know genera subjects and lacks the motivation to overcome these severe discrepancies. b. He was notified of the proposed action to separate him under the provisions of the TDP for his lack of aptitude and motivation to complete Basic Training. He had been given ample opportunity to improve, but no improvement has been noted. He was advised he had the right to present any rebuttal or statements on his own behalf. He was advised he may request a separation physical if he felt his physical status changed since his last examination. c. He acknowledged the notification. He did not desire to make statements or submit a rebuttal on his own behalf. He did not desire a separation medical examination 7. The proposed separation action was approved on 2 May 1978. 8. A Reason for Separation election form shows the applicant elected to receive a copy of his DD Form 214 (Report of Separation from Active Duty) and requested a separate document explaining the narrative reason. It shows the reason for separation as TDP marginal or non-productive, the regulatory or statutory authority is AR 365-200 paragraph 5-33, and reenlistment eligibility as ineligible unless a waiver is granted. 9. The applicant was honorably discharged on 5 May 1978 under the provisions of AR 365-200 paragraph 5-33. He was credited 1 month 19 days active service this period. 10. The applicant provided: a. A DA Form 664, dated 5 May 1978, showing he had not filed an application for compensation with the Department of Veterans Affairs (VA). b. 10 pages of medical records. 3 pages are from his military medical record during his time at Fort Jackson, SC. The additional 7 pages are an orthopedic evaluation, dated 11 September 2019, from the applicant’s private orthopedic provider. 11. 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. The VA does not have authority or responsibility for determining physical fitness for military service. The VA may compensate the individual for loss of civilian employability. 12. Title 38, U.S. Code, 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. 13. Title 38, CFR, Part IV is the VA’s schedule for rating disabilities. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge. 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. 14. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. Paragraph 2-11 states applicants do not have a right to a formal hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 15. MEDICAL REVIEW: a. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents, the ROP, and the applicant's records in the VA's Joint Legacy Viewer (JLV). There were no records in the Interactive Personnel Electronic Records Management System (iPERMS), the Armed Forces Health Longitudinal Technology Application (AHLTA), or in the Health Artifacts Image Management Solutions (HAIMS) due to the age of the case. The applicant stated that he should have been properly counseled in order to have received a medical discharge. He contends that a knee injury contributed to his poor rifle range performance. b. Pertinent medical records and related during service. (1) 21Nov1977 Screening Physical Examination for Army Recruitment was negative. (2) 22Nov1997 Report of Medical History (for enlistment). He endorsed good health. In the 23Nov1997 Report of Medical Exam Defective Vision, Both Eyes, was noted. No other abnormalities were noted in the physical exam. He was given a PULHES 111121 physical profile and he was deemed qualified for enlistment. (3) TDP Counseling records indicated he fired very poorly during field firing on 11Apr1978 and 17Apr1978. (4) 11Apr1978 Emergency Room Moncrief Army Hospital. There was no history of injury or trauma. The physical exam revealed no swelling or crepitus. ROM was good. There was a small “knot” swelling lateral left knee. A knee brace was applied. He was referred to orthopedics. The referral narrative indicated that he had knee pain for 2 days. (5) 12Apr1978 Physical Therapy Clinic Moncrief. The applicant was in his 3rd week of BCT. There was no known trauma and no problems prior to service. The physical exam revealed a slight antalgic gait. There was no effusion, joint line tenderness, limitation of motion, or instability. There was tenderness at the medial femoral condyle without pain on stress. There was a tiny area of protrusion mid lateral anterior compartment. Impression: Chondromalacia Patella; Small Hernia Muscle, Lateral Anterior Compartment, Left. (6) 17Apr1978 follow up visit for knee pain. Impression was still Chondromalacia. (7) 21Mar2019 Knee and Lower Leg Conditions C&P exam. The applicant reported left knee injury age 19-20 while jumping around in training camp and dislocated his knee. He went to the emergency room and treatment included a brace and physical therapy. Subsequently, he went to motor mechanic school and worked as a mechanic until he could not for the past 2 years. He stated he saw an orthopedist in 2009. Currently, he reported locking up, dislocating, and arthritis. He also reported weakness and using a brace. The left knee ROM exam and tests for instability were not completed because the applicant stated he had pain and did not take his pain medication. The exam showed evidence of painful motion and pain with weight bearing. Knee strength was 5/5. The examiner opined that the claimed knee condition was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness. Their evidence included a 2009 knee MRI and x-ray which showed no chondromalacia patella, and no evidence of degenerative joint disease; and the 2009 Orthopedist notes which described left knee pain complaints of 2 years duration without injury; and a 30 year work history without chronic disabling knee issues. (8) 11Sep2019 Orthopedic Evaluation. The specialist summarized previous medical records covering the following periods: Service treatment records from 21Nov1977 to 12Apr1978; VA records 25Apr1981 and 09Apr2019; Orthopedist records 22Jan2009, 29Jan2009 and 10Feb2009; Community Hospital record dated 20Oct2016; Arthritis Institute record dated 18Feb2019; and Orthopedic Hospital June2019. The specialist also noted disagreement with some of the 2019 Knee and Lower Leg Conditions C&P examiner’s conclusions: For example, the specialist pointed out that while the C&P examiner denied the applicant had degenerative joint disease, the Arthritis Institute had indeed diagnosed left knee osteoarthritis (also referred to a degenerative joint disease). During the September 2019 Orthopedic Evaluation, the applicant described an injury while in BCT while performing an exercise involving jumping and agility maneuvers during which he lost his balance and fell. He described feeling a pop in his left knee followed by a sharp pain. The applicant believed his knee dislocated and then went back into place. He went to the emergency room later and was fitted with a brace. He reported that he was unable to return to his duty status at that time. At the time of the visit, he reported constant pain in the left knee. He also described popping, locking, difficulty walking, and use of a cane. The exam showed posterior medial crepitus, positive Murray’s, and positive lateral patellar apprehension. There was no effusion. A small anterior hernia in the anterior compartment was noted, which the specialist opined was consistent with the applicant’s report of previous lateral patellar dislocation. The neurologic exam and circulation was unremarkable. The specialist opined that the applicant did sustain a left knee in April 1978 while in service, which led to his current conditions of osteoarthritis, chondromalacia patella, internal derangement, and anterior compartment muscle herniation. They also endorsed that the reason the VA did not service-connect the injury was due to the following: Loss of medical records; the Army’s failure to record the knee injury as the reason for his discharge; and the Army’s failure to perform a separation medical exam documenting his left knee impairment. (9) The reason for his separation from active duty on 05May1978 was Trainee Discharge Program (TDP) in accordance with AR 635-200 para 5-33. b. The applicant was discharged 3 weeks after his last visit for knee pain. He reported use of a brace and having participated in physical therapy as remedial measures for his knee symptoms. A separation exam was not available for review as the applicant elected on 27Apr1978 not to have one completed. The 11Sep2019 Orthopedics Associates of summary mentioned a 25Apr1981 VA emergency room record for a left pre-tibial mass which was causing a limp. No evidence was presented that the pre-tibial mass was related to a knee condition. The referenced VA treatment records covering the dates 1978-1980; 1982-1983; and 1985 remain unavailable for review. Therefore, the first available documented presentation for knee issues after military service was in 2009, more than 30 years after discharge. Notwithstanding the physical exam findings 3 weeks prior to discharge, there was no evidence of permanent duty restrictions/limitations (no permanent P3 physical profile) at the time of discharge; therefore, evidence is insufficient to support that the knee condition failed medical retention standards of AR 40-501 chapter 3. Therefore, a change in reason for separation to medical disability is not warranted at this time. 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 advisory official finding evidence is insufficient to support that the knee condition failed medical retention standards of AR 40-501 chapter 3. The Board further noted the first available documented presentation for knee issues after military service was in 2009, more than 30 years after discharge. The applicant is advised the DD Form 214 shows circumstances as they were on the date prepared. Based upon a preponderance of the evidence, the Board determined there is insufficient evidence that shows a disability discharge was warranted during his period of active service. 2. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 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 (AR) 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. Chapter 5 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. Paragraph 5-33 (The Trainee Discharge Program (TDP)) states: a. This program provides that commanders may expeditiously separate members who lack the necessary motivation, discipline, ability, or aptitude to become a productive soldier when these individuals: (1) Were voluntarily enlisted in the Regular Army, ARNG or USAR. (2) Are in BCT or BT or in MOS training in AIT, a service school or OJT prior to the award of the MOS for which being trained and will have completed no more than 179 days active duty (AD) or initial active duty for training (IADT), on current enlistment by the date of separation. Prior service personnel are excluded from this program. (3) Have demonstrated that they are not qualified for retention for one or more of the following reasons: * cannot or will not adapt socially or emotionally to military life. * cannot meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation or self-discipline * have demonstrated character and behavior characteristics not compatible with satisfactory continued service * do not meet enlisted standards by reason of disqualifying drug use. Disqualifying drug use is defined by paragraph 2-34, AR 40-501, AR601- 210, NGR 600-200 (ARNG) or AR 1.40-111 (USAR) (4) Have failed to respond to counseling. (DA Form 4856). b. It is contrary to the intent of the TDP for commanders to use this policy as a substitute for appropriate administrative action under paragraph 5-7 or 5-32; chapters 9, 13 and 14 of this regulation; -processing through medical channels because of physical or mental defects; or appropriate disciplinary action. Members whose physical condition has obviously changed since enlistment are to be required to take a separation medical examination regardless of disclaimer acknowledgement indorsement in figure 5-6. c. Procedures. (1) This program is intended to provide a rapid means to process members for separation. Commands should monitor procedures to ensure that they remain as simple and decentralized as possible. The affected member's immediate commander will personally notify the member in writing of the proposed separation and reason therefor. Notification will be substantially as in figure 5-5 which is authorized for local reproduction. In referenced letter, paragraph 2 (reason for proposed action) state specific factual details which constitute the basis for this action, including counseling, if appropriate, and dates and times of contributory events. Acknowledgement by the affected member will be in the form of an indorsement returning the notification to the member's immediate commander. This endorsement will be substantially as in figure 5- 6 which is authorized for local reproduction. The immediate commander will forward his letter and the acknowledgement by indorsement through command channels to the commander exercising separation authority. Once the statement that a member elects not to have a separation medical examination is forwarded to the unit commander, it may be withdrawn only with the consent of the appropriate separation approval authority. (2) Members separated under his program will be awarded an honorable character of service. 3. Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement). The Department of Veterans Affairs Schedule for Rating Disabilities (VASRD). VASRD is used by the Army and the VA as part of the process of adjudicating disability claims. It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service. This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation. 4. Title 38 U.S. Code, section 1110 (General - Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 5. Title 38 U.S. Code, section 1131 (Peacetime Disability Compensation - Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 6. 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. Once a determination of physical unfitness is made, all disabilities are rated using the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD). 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. 7. 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. 8. Section 1556 of Title 10, United States Code, 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. 9. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. Paragraph 2-11 states applicants do not have a right to a formal hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210016106 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1