IN THE CASE OF: BOARD DATE: 21 September 2022 DOCKET NUMBER: AR20220003431 APPLICANT REQUESTS: * correction of his Date of Rank (DOR) for the rank/grade of specialist (SPC)/E-4 to reflect March * to be awarded the Army Commendation Medal * to be awarded the Army Achievement Medal * medical retirement at 30 percent or greater for injuries incurred on active duty APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-authored letters * Congress of the U.S. letters * Certificates and Photographs * Memorandum – Subject: The All-Army Track and Field Team and Armed Forces Sports Championships, dated 30 August 2021 * Medical documents * Rating Decision, dated 5 October 2017 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 (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 in pertinent part that he enlisted in the Army in October 1989 after graduating with a Bachelor of Science in May 1989. He argues that on 30 March 1990, Army Regulation (AR) 601-210 (Regular Army and Army Reserve Enlistment Program), Table 2-3, rule E was changed to reflect that Soldiers may be enlisted in the Army at the rank of SPC. He notes that this change should have been retroactively applied to him awarding him with a DOR to SPC of 14 March 1990 rather than penalizing him for enlisting 6-months prior to this change being implemented. a. The applicant also contests that he should have been retired with a disability rating of 30 percent or higher for the injuries that he sustained while serving on active duty. He feels that the Physical Evaluation Board (PEB) failed to properly assess the severity of his injuries and the complete omission of the diagnosed nerve damage of his right wrist. During operation Desert Shield, he provides that he was ordered to climb on top of a transport vehicle to attach the chains required to off load a storage container. While on top of the vehicle, an alarm was sounded regarding incoming artillery fire causing the driver of the vehicle to panic and abruptly drive off. This immediate action resulted in the vehicle overturning and throwing him approximately 40 feet from the vehicle. He sustained bilateral wrist fractures that required emergency surgery that was performed. Over the following years, he required a series of subsequent surgeries to address his wrist injuries. Following the second surgery on his left wrist (January 1991) in February of 1991, he had the pins that were previously inserted into his right wrist removed resulting in a severe infection which required an additional surgery to open and clean the area in his right wrist. This treatment lasted several more weeks. The nerve damage was first acknowledged on 6 November 1991, while he was still serving on active duty. This condition was never rated by the PEB. The Veterans Administration (VA) also provided that he possibly sustained a Traumatic Brain Injury (TBI) because he was unconscious for several minutes following the incident. Since being discharged he has had several other surgeries and been diagnosed with Post-Traumatic Stress Disorder (PTSD) and developed Bell's palsy. He was advised that following his discharge and placement on the Temporary Disability Retired List (TDRL) his conditions would be reevaluated in 3-5 years. He contests that this did not occur. However, in September 1991, he was medically boarded again and informed that his condition had improved. b. Lastly, the applicant contests that he should have been awarded the Army Commendation Medal and the Army Achievement Medal for being selected to attend the All-Army Track and Field camp followed by him being selected as the All-Army Champion in the javelin event. He adds that he was also recognized for winning the Armed Forces Championship and setting an all-time record. Following this achievement, he was selected to represent the U.S. Armed Forces at the World Military Championship where he placed 5th. He was repeatedly advised that he would be recognized with these awards however due to multiple changes of command and the injuries that he sustained during Operation Desert Shield, he was forgotten by his unit and the Army. 3. A review of the applicant's available service records reflects the following: a. On 12 May 1989, the applicant was awarded a bachelor's degree from . b. On 12 October 1989, the applicant enlisted in the Regular Army at the rank/grade of private first class (PFC)/E-3 to serve as a 62F (Crane Operator). DD Form 1966 (Record of Military Processing Armed Forces of the United States) shows the following: (1) Section III (Other Personal Data), item 24 (Education) September 1986 through May 1989, the applicant attended University and was a graduate. (2) Section IV (Remarks), item 39 (Remarks) shows authorized pay grade PFC/E-3 in accordance with Table 2-3, rule E. c. On or about 30 October 1990, the applicant deployed in support of Operation Desert Shield/Desert Storm where he remained until 28 December 1990. d. On 30 July 1991, the applicant was advanced to the rank of SPC with a DOR of 1 August 1991. This advancement required a waiver of the applicant's time-in-service. e. On 18 November 1991, the applicant was issued a performance limiting medical profile for wrist arthritis and back pain. These injuries/conditions precluded that applicant from participating in the Army Physical Fitness Test (APFT) in its entirety. f. On 20 February 1992, a PEB convened finding the applicant physically unfit for continued military service due to bilateral post traumatic arthritis of the wrists and mechanical lower back pain. The board recommended a combined disability rating of 30 percent for these conditions. g. On 20 March 1992, the U.S. Total Army Personnel Command issued Orders Number D57-23 releasing the applicant from assignment and duty due to a physical disability incurred while entitled to basic pay on 29 April 1992. DD Form 214 (Certificate of Release or Discharge from Active Duty) item 4a. (Grade, Rate or Rank) reflects "SPC"; item 12h. (Effective Date of Pay Grade) reflects "1 August 1991". Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) reflects: * National Defense Service Medal * Army Service Ribbon * Sharpshooter Marksmanship Qualification Badge with Rifle Bar * Southwest Asia Service Medal (w/ bronze service star) h. On 30 April 1992, the applicant was placed on the TDRL. i. On 18 April 1994, the applicant was removed from the TDRL and permanently retired effective 18 April 1994 with a disability rating of 20 percent. 4. The applicant provides the following a: a. Congress of the U.S. letter dated 17 January 2022, reflective of the applicant's congressional representative, the request for assistance from the Army Review Board Agency (ARBA) with the applicant's requested relief. He notes that the applicant requests a DOR to SPC of 1 April 1990. The also provided notification to the applicant of the letter provided to ARBA. b. Certificates and Photographs reflective of the applicant being recognized for obtaining a Bachelor of Science degree from University and several accomplishments to include the Certificate of Achievement for his performance during the athletic events that he participated in during the Armed Forces Track and Field Championship (June 1990), establishing an all-time record of 230 feet during the javelin throw (5th Place). The applicant was also recognized for attaining the highest APFT score in the Brigade (March 1990). In addition to these documents, the applicant provides copies of team photographs and articles reflective of his participation on the All-Army Armed Forces Team as well as the medals that he received. c. Memorandum – Subject: The All-Army Track and Field Team and Armed Forces Sports Championships dated 30 August 2021, reflective of the applicant being recognized for winning the men's javelin throw event during the Armed Forces Championship conducted from 3-8 June 1991 setting an Armed Forces Sports record with a distance of 225 feet 9 inches. d. Medical documents reflective of medical care that the applicant received in relation to his bilateral wrist fractures occurring on 29 November 1990. These documents are provided in their entirety for the Boards review within the supporting documents. e. Rating Decision dated 5 October 2017, reflective of the applicant being rated by the VA as 30 percent disabled on 30 April 1992. This rating was later changed to 20 percent effective 1 September 1994. The applicant submitted multiple appeals of the rating throughout the following years culminating with him being rated as 100 percent disabled, effective 10 January 2017. 5. 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 Veterans Affairs (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. 6. Title 10, USC, section 1554a (Review of Separation with a Disability Rating of 20 Percent or Less) subparagraph c (4)), provides that with respect to any review by the Physical Disability Board of Review of the findings and decisions of the Physical Evaluation Board with respect to a covered individual, whether initiated at the request of the covered individual or a surviving spouse, next of kin, or legal representative of the covered individual or initiated by the Physical Disability Board of Review, the Physical Disability Board of Review shall notify the covered individual or a surviving spouse, next of kin, or legal representative of the covered individual that, as a result of the request or consent, the covered individual or a surviving spouse, next of kin, or legal representative of the covered individual may not seek relief from the Board for Correction of Military Records operated by the Secretary concerned. 7. Title 38, USC, 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. 8. Title 38, Code of Federal Regulations, 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/her 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. 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 and available military records, the Board determined the applicant’s record is absent sufficient evidence showing any recommendations or orders for an Army Commendation Medal or Army Achievement Medal while deployed in support of Operation Desert Shield. 2. Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature with documentation to support the applicant’s request for the award. Furthermore, the Board determined there is insufficient evidence to support correction of his Date of Rank (DOR) for the rank/grade of specialist (SPC)/E-4 to reflect March nor that a medical retirement at 30 percent or greater for injuries incurred on active duty had merit. Based on this, the Board determined relief was not warranted and denied relief. 3. Army policy allows any Soldier to recommend another Soldier for an award. The Army's awards program relies on those with first-hand knowledge of a Soldier's heroic or valorous action to recommend the Soldier for the appropriate award. Award recommendations are sent up through the Soldier's chain of command to company, battalion, brigade, division, and corps commanders. Commanders at every level of review can recommend approval or upgrade of the award based upon their authority. Commanders with authority to approve awards also have the authority to downgrade or disapprove awards based on their judgment, knowledge, and the criteria established for the award. Command involvement is critical for program success. 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, USC, 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. AR 601-210 (Regular Army and Army Reserve Enlistment Program) paragraph 2-4 (Pay Grade and Date of Rank) in effect at that time (11 September 1987) provides that persons enlisting in the Regular Army or U.S. Army Reserve without prior service will be enlisted in the pay grade of E-1. Table 2-3 (Enlistment Pay Grades for Personnel without Prior Service) Rule E provides that persons who produce a bachelor's degree of 4 years duration may be enlisted at the pay grade of E-3, with advancement to E-4 after completion of 4 months of continuous active service. Soldiers not recommended by their commander for further advancement under this rule will be counseled and the document denying promotion placed in their personnel records. On 30 March 1990, this guidance was changed allowing for qualified applicants, with a bachelor's degree from a 4-year degree producing college program to enlist in the military at the rank of SPC. The regulation makes no mention of these changes being retroactive. 3. AR 600-8-22 (Military Awards) provides that the: a. Army Achievement Medal is awarded to any member of the Armed Forces of the United States, who while serving in a non-combat area on or after 1 August 1981, distinguished themselves by meritorious service or achievement. As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required. b. Army Commendation Medal may be awarded to any member of the Armed Forces of the United States who, while serving in any capacity with the Army after 6 December 1941, distinguished himself or herself by heroism, meritorious achievement, or meritorious service. As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required. 4. AR 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. a. Paragraph 3-2 provides that 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 provides that 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. AR 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) 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. 6. Title 10, USC, section 1130 allows the Service Secretary concerned to review a proposal for the award of, or upgrading of, a decoration that is otherwise precluded from consideration by limitations established by law or policy. In order to request an award under Title 10, USC, section 1130, you must submit a DA Form 638 (Recommendation for Award). The DA Form 638 should clearly identify your unit, the period of assignment, and the award being recommended. A narrative of the actions or period for which you are requesting recognition must accompany the DA Form 638. In addition, your award request should be supported by sworn affidavits, eyewitness statements, certificates, and related documents. Corroborating evidence is best provided by commanders, leaders, and fellow Soldiers who had personal (i.e., eyewitness) knowledge of the circumstances and events relative to the request. Title 10, USC, section 1130 also requires that a request of this nature be referred to the Service Secretary from a Member of Congress. Therefore, you must submit your request through a Member of Congress who will send it to the U.S. Army Human Resources Command, ATIN: AHRC-PDP-A, 1600 Spearhead Division Avenue, Fort Knox, KY 40122. The burden and costs for researching and assembling documentation to support approval of requested awards and decorations rest with the requester. If you choose to pursue the award requested by submitting a request under the provisions of Title 10, USC, section 1130, and your request is subsequently denied by the U.S. Army Human Resources Command, you may reapply to the ABCMR. You may complete an application online or download a current application DD Form 149 (Application for Correction of Military Records) from our website at -http://arba.army.pentagon.mil. You must include a copy of the denial from the U.S. Army Human Resources Command. //NOTHING FOLLOWS//