IN THE CASE OF: BOARD DATE: 21 February 2023 DOCKET NUMBER: AR20220003970 APPLICANT REQUESTS: in effect: * correction of his DA Form 199 (Informal Physical Evaluation Board (PEB) proceedings, to show physical disability retirement in lieu of separation with severance pay, and to reflect his disability resulted from a combat-related injury * promotion to unspecified rank * correction of item 5 (Date of Enlistment/Reenlistment) on his DD Form 4 (Enlistment/Reenlistment Document Armed Forces of the United States) to show 8 June 1991 * the following corrections to his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 27 January 1998. * award of the Purple Heart, Meritorious Service Medal, and other unspecified medals and awards * unspecified deployments (1996 Olympics – Atlanta, GA) APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * personal statement (5 pages) * spouse email correspondence (5 pages) * DD Form 4, 6 August 1991 * NG Annex A (Enlistment/Reenlistment Agreement – Army National Guard), Annex B (Enlistment Bonus Agreement), Annex C (Delayed Training Option) * Military Entrance Processing Station (MEPS) medical documents (5 pages) * MEPS orders * DA Form 5435-R (Statement of Understanding Selected Reserve Educational Assistance Program) * Statement of Understanding of Reserve Obligation and Responsibilities * High School diploma * 714 ADP (Accession Information) * accessions documents * enlistment documents, 1966 series (Record of Military Processing – Armed Forces of the United States) * Army orders * DA Form 2A (Personnel Qualification Record (PQR)) Part I * PQR Part II * Military Occupational Specialty (MOS) orders * basic training orders * Army recruiter certificate, 24 November 1991 * DD Form 214, 19 October 1992 * Request for Conditional Release from Reserve or Guard Component * NG transfer orders, 19 August 1994 * National Agency Questionnaire, 11 May 1995 * New GI Bill, 11 May 1995 * NGB Form 22 (Report of Separation and Record of Service), 7 August 1995 * enlistment documents, 8 August 1995 * Orders 283-00236, 10 October 1995 * Screening Note of Acute Medical Care, 20 October 1995, 1 November 1995 * DA Form 31 (Emergency Leave) * Red Cross letter, 5 November 1995 * Army Continuing Education System record, 21 January 1998 * DD Form 214, 27 January 1998 * Army National Guard (ARNG) retirement points, 13 December 2017 * request for medical records * ARNG Medical documents (Approx. 180 pages) * 1995 medical history * 1996 medical docs * 1998 medical docs * VA Medical documents (disabilities, medications, feet and hand Compensation & Pension (C&P), mental C&P, stomach C&P, PTSD C&P * Medical Evaluation Board (MEB) Report of Medical Examination, 5 September 1997 * Statement of Medical Examination and Duty Status, 17 September 1997 * line of duty memo, 3 October 1997 * Narrative Summary, 20 November 1997 * DA Form 3947 (Medical Evaluation Board Proceedings) Page 2, 15 December 1997 * DA Form 3349 (Physical Profile), 16 December 1997 * DA Form 199 (Physical Evaluation Board (PEB) Proceedings), 18 December 1997 * Orders 015-0003, 15 January 1998 * Reserve Leave and Earnings Statement (LES), October 1991 - May 1993 (21 pages) * Active duty LES, June 1992 - January 1998 (73 pages) * severance pay letter from VA, page 2 * 24th Infantry (Wikipedia) * Wikipedia commander list * Olympics supporting documents * text message screenshots FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. 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 was discriminated against while at his unit at Fort Stewart. He was never promoted, even though he completed two boards and was promotable. He did not get the change to out-process the way that it is supposed to be done. He did not get to attend his MEB or PEB and did not even know the boards had occurred at the time. He was separated at 10% but could not get a job doing even small things because they (unknown) considered him to be unemployable. a. He did not have any paperwork regarding his time in service to back up his statements. He still does not have his C-file. He has a request in for the VA because he was informed, the VA would have the files. He was able to get the few pages he does have from the National Archives. He has tried appealing to the Army on multiple occasions, but they (unknown) never replied to his appeal or contacted him. b. The applicant provides a five-page letter stating he never received his C-file, so he cannot use any of the documents to back him up, but he knows there are files to back him up. The VA mailed his C-File to an address in Arkansas when the home he had on record was in Georgia. The paperwork states it was sent by registered mail. He believes this is an injustice because he was never able to properly separate from the Army. c. His E-7, Sergeant First Class (SFC) would not allow him to follow his profile, let alone do anything else outside of what he wanted the applicant to do for his own agenda. The applicant was having to do jobs that were meant for E-6 and E-7s because they (unknown) were in trouble often and someone needed to step up, so he did. He was promoted the day of his separation, but he does not know to what rank. He was up for promotion since at least 1995 but was never promoted despite his high score and time in service. SFC kept telling him that despite being at the top for promotion, he was not able to be promoted due to his injury. d. He joined as an E-2 under the Delayed Entry Program, also known as the “Buddy Program”. His time in service starts 8 June 1991. Unfortunately, the dates are wrong and shows as 6 August 1991. When he joined, he was 17 and just finished 11th grade. He was attending drills before he even went to basic; he attached his LES’ to show this. He had 30-40 active-duty days due to recruiting at school. He joined the National Guard and received his first recruiter course certification before he even went to basic training. He recruited at Ridgecrest high school, as well as Delaplaine high school. It was the fast-track program and he was supposed to go up in rank quicker. He also received a second recruiter course certification but does not have a copy of that. He does not have a copy of his National Guard or Army Reserve files either. He went to basic training in 1992 at Fort Sill OK, and then went on to his advanced individual training (AIT) to be a 62B (Construction Equipment Repairer) at Fort Leonard Wood in MO. e. He joined the ARNG and was offered SRIP (Selected Reserve Incentive Program) for MOS 62B for a total of $2,000. He tried reading his LES but it is complicated for him. He does not know what some of the acronyms stand for or mean. f. While he was in basic, he injured his feet and was offered a medical discharge but he wanted to stay in and did until he joined the Army. He got injured when he was with the 875th National Guard at Camp Robinson Maneuver Base. He was participating in a simulation of war training, and he was wearing night gear in a laser sensor vest with lasers on his M-16. The truck was parked at a 45°, at an angle backed in the ditch to make it easier for the soldiers to load up. When the driver tried to start up the hill, he popped the clutch multiple times, causing the engine to stall. When the truck started moving after popping the clutch, some of the soldiers slid toward the opening at the back of the truck. There was no tailgate, wooden or metal. He was sitting on the end and was pushed out when the soldiers started sliding. He fell out onto his shoulder and 2-3 soldiers fell on top of him. The injuries he sustained were on his head, clavicle, and back. g. He does not have all his medals and awards that should be on his DD Form 214, from the Guard, Reserve, or from the Army. His awards are listed under several different names due to misspellings. On two different occasions, he received expert in M16, .50 cal., and grenade. He does not have any National Guard records to prove this, but it would be in his c-file. He was supposed to be an E-5 before he left the Guard, although he never received it and he had the points and was promotable. They (unknown) have messed up his promotions, because he was supposed to be an E-4 by November of 1992. He was supposed to get E-3 while he was in basic. This did not happen. His active-duty time in the National Guard was not counted with his time in the Army because they (unknown) never sent the files to his AIT before he went to Fort Benning for Airborne school. He also does not have his deployments listed on his DD Form 214. h. When he joined the Regular Army he completed AIT at Fort Lee, VA for ordinance school. He was injured at Airborne school at Fort Benning, GA. His knee pain/injury was called patella formal joint syndrome. He changed his MOS to 92G (Food Service Specialist). He was injured again the end of February or beginning of March at Fort Bragg, NC. He injured his fingers, hand, wrist, and arm. He wrapped it up and finished loading everything up to head back to Fort Stewart. He describes his injury in detail. i. Despite his hand injury and the fact that he was given a profile, he was sent with the Savannah, GA 260th Quartermaster unit to the Olympics that was held in Atlanta, GA in 1996, DoD Joint Task Force. He was there from the beginning of March to the end of August. He described the pain his hand was in while on this tasking. While there he was injured by shrapnel from the bombing. There was also a fire in the MKT (Military Kitchen Tent) in which he helped to extinguish. He had his board for E-5 while he was at the Olympics, and he was promoted there. They (unknown) sent the paperwork back to his command, but they (unknown) never followed through with the documentation. When he returned to his unit, everyone was frantic because Criminal Investigative Division was there investigating stuff that was stolen, like MREs, and other food items. j. After he had exhausted all therapies and his unit would not allow him to properly follow his profile, the doctor put him in for a MEB. This led to a PEB. He did not get to attend either of these, because he was out doing combat training to get ready to go to Kuwait. He was never informed about the process of the PEB. He was summoned on 28 January and was not expecting it to be due to separation processing. His DA Form 2A shows him as a SP4M, which means he should have a much higher rank than he was given. k. He described his post service life which ended with him being retired from the post office. The VA did not raise his compensation, despite partnering with the post office to medically retire him. VA and Social Security both told him that he could work. He got a lawyer and the judge sided with him because of all the actions they (unknown) had done to him. His service-connected disabilities have left him in pain daily and having to depend on his wife to help with caring for him. He also attached a copy of his Combat Related Special Compensation application showing a detailed account of his injuries. He listed his service-connected disabilities. The applicant’s entire 5-page letter is available for the Board’s review. l. His spouse submitted a 5-page letter laying out the timelines of the applicant’s service. She reiterated all the contentions the applicant stated above. She states he should have received a few Purple Hearts. He should have been promoted to E7 by the time he was separated. The entire 5-page letter is available for the Board’s review. 3. The applicant provided his enlistment documents that shows he enlisted in the Arkansas Army National Guard (ARARNG) on 6 August 1991 for a period of six years in MOS 62B. He signed a bonus agreement showing he was at the time currently attending a secondary school and will graduate within 18 months of enlistment or before entry on second phase of Initial Active-Duty Training (IADT) under the Split Training Option. He initialed that he understood that he was enlisting in a critical skill, and he must remain in a critical skill or bonus unit. His bonus shows: a. He will receive $2,000. b. Initial payment of one-half ($1,000) of the total authorized bonus amount entered above after receiving his secondary school diploma (15 June 1993), completing initial active duty for training (19 October 1992), and qualifying in the MOS (19 October 1992). c. Two subsequent payments of one-fourth ($500) of the above amount upon satisfactory completions of the second and fourth year of the enlistment term of service. d. He understood procedures for payment of the ENLISTMENT BONUS will be initiated by his Unit commander. He further understood he cannot receive any portion of the ENLISTMENT BONUS until he had received his secondary school diploma, completed IADT and have qualified in his MOS. 4. The applicant provided a Report of Medical History completed on 6 August 1991, showing he was in good health. He also provided a Report of Medical Examination completed on the same day showing he was qualified for service in the ARNG. 5. The applicant provided a Certificate of Training for Unit Recruiting Course (16 hours) completed on 24 November 1991. 6. The applicant entered a period of IADT on 7 June 1992. He was honorably released from active duty on 19 October 1992, after completion of IADT in the rank of private/E-2. He was awarded MOS 62B. 7. The applicant provides LESs for his Reserve pay. His May 1993 LES shows in part enlistment bonus 9111 init $1,000. Anniversary bonus due 5 August 1993. He did not provide an LES for August 1993. 8. The applicant provided his high school diploma for General Educational Development Test from on 15 June 1993. 9. The applicant provided a Request for Conditional Release from Reserve or Guard Component showing he requested to be release from his National Guard unit to enlist in the Regular Army. His commander approved the requested action on 10 May 1995. 10. The applicant provided his NGB Form 22 showing his date of enlistment as 6 August 1991. He was released from the ARARNG on 7 August 1995, in the rank of private first class/E-3. He completed 4 years and 2 days of ARNG service this period. 11. The applicant enlisted in the Regular Army in the rank of specialist/E-4, on 8 August 1995 for a period of three years in the MOS 92G (Food Service Specialist) with Airborne Training. 12. The applicant was awarded the Parachutist Badge on 3 November 1995. He was awarded MOS 92G1P. 13. The applicant provided a DA Form 31 (Request and Authority for Leave) showing he was approved for emergency leave from 5 -10 November 1995. The remarks block noted fiancé death. Instructions noted Soldier needs to see chaplain. A Red Cross note shows the death of his girlfriend on 4 November 1995 by accident. Call home but have cadre present when he makes the call. 14. The applicant provides his medical records from 1995-1998 in support of his claims to include but not limited to C&P Exams from the VA. 15. SF93 (Report of Medical History), shows on 5 September 1997, the applicant had a MEB examination which shows he was being boarded for mass in left hand/wrist thought to be ganglion cyst with unknown origin. 16. DA Form 2173 (Statement of Medical Examination and Duty Status) completed on 17 September 1997, shows the applicant had a left-hand injury in April of 1996, as he was putting up tents when he hit his left hand on the pins that held the roof of the tent sustaining an injury to his left hand. 17. A letter from his commander, dated 23 September 1997, states in part: a. The applicant’s injury occurred while on temporary duty in support of the 1996 Olympics. Since his operation he has limited range of motion and a decrease in strength in his hand. b. His injury is preventing him from performing his job as a cook. He cannot safely lift or carry large pots of food or boiling water, trays of prepared foods, or the 10-gallon containers of milk. His supervisors have recognized his limitations and assign him to work the salad and desert area. His limitation is more noticeable in the field. He has difficulty carrying bulk food items, M2 burner, and setting up the Mobile Kitchen Trailer (MKT). He cannot dig sanitation pits or a fighting position. He also cannot take the Army Physical Fitness Test. c. He cannot adequately perform the job of a 92G10 because of his injury. He is given lesser task to perform, and this forces his peers to work harder. The commander firmly believe that the applicant should be separated from the Army under a medical discharge. 18. The applicant’s line of duty was approved on 3 October 1997. 19. A NARSUM, dated 20 November 1997, shows the applicant was eligible for a MEB for left wrist pain. The conclusion was currently, the patient does not meet the retention standards for the Army according to Army Regulation (AR) 40-501 (Standards of Medical Fitness), paragraph 3-41e (1) (2). His diagnosis was left wrist pain, status post attempted biopsy of cystic/mass structure on the dorsum of left wrist. 20. A DA Form 3947 shows a MEB was convened on 2 December 1997. The applicant did not present views in his own behalf. The board found the applicant’s left wrist pain, status post attempted biopsy of cystic/mass structure on the dorsum of left wrist did not meet retention standards and he was referred to a PEB. The applicant did not desire to continue on active duty under AR 635-40 (Physical Evaluation for Retention, Retirements, or Separation). The findings were approved on 11 December 1997 and the applicant agreed with the board’s findings and recommendation on 15 December 1997. 21. On 16 December 1997, the applicant was issued a permanent profile for his left wrist pain. 22. On 18 December 1997, a PEB convened to consider the applicant’s fitness for duty for chronic pain, left wrist, status post attempted biopsy of lesion on dorsum of wrist. a. The board found the applicant unfit and recommended a combined rating of 10 percent and that his disposition be separation with severance pay if otherwise qualified. b. The PEB also found the applicant's injury was not based on disability from injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurring in line of duty during a period of war as defined by law. The disability did not result from a combat related injury as defined in 26 USC 104. c. The applicant concurred and waived a formal hearing of his case on 29 December 1997. 23. Orders 015-0003, issued by Headquarters, 3d Infantry Division (Mechanized) Fort Stewart, GA, on 15 January 1998, shows the applicant was to be discharged from the Army on 27 January 1998, with 10% disability severance pay. Additional Instructions shows: a. Percentage of disability - 10%. b. Disability is based on injury or disease received in LOD as a direct Result of Armed Conflict or caused by an instrumentality of war and incurred in the LOD during a war period as defined by law: No. c. Disability resulted from a combat related injury as defined in 26 USC 104: No. 24. The applicant was discharged on 27 January 1998 IAW AR 635-40, paragraph 4- 24b (3) for disability, severance pay. He was awarded $8,602.20 in severance pay. His DD Form 214 shows in item 12a (Date Entered AD This Period) as 8 August 1995. He completed 2 years, 5 months, and 20 days of net active service this period. It also shows he was awarded or authorized: * Army Commendation Medal * Army Good Conduct Medal * National Defense Service Medal * Army Lapel Button * Army Service Ribbon * Sharpshooter Badge (Grenade) * Marksmanship Badge (Rifle) 25. There is no evidence nor did the applicant provide any evidence that he was promoted to sergeant/E-5. There are no orders awarding the Purple Heart or other awards within his records. 26. The applicant provided his Army National Guard Retirement Points History Statement prepared on 13 December 2017, showing he had 4 years creditable service for retired pay from 6 August 1991 to 7 August 1995. 27. The applicant provided several C&P examinations for his feet and hands, behavioral health, and stomach conditions. 28. The applicant also provided a Wikipedia entry for the 24th Infantry Division showing the unit’s history and a list of Division Commanders in the rank of Major General. 29. The applicant provided a letter from his friend who roomed with the applicant for quite some time when they were stationed at Fort Stewart, GA. They both were on the task force for the 1996 Olympics in Atlanta, GA from on or about 13 May – 31 August 1996. They served with other branches of the military and should have received more awards. He provided his Army Commendation Medal Certificate and DA Form 638 (Recommendation for Award). 30. 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. 31. 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. 32. 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. 33. 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 has applied to the ABCMR requesting additional medical conditions be determined to have been unfitting for continued military service prior to his discharge, an increase in his military disability rating, with a subsequent change in his disability discharge disposition from separated with severance pay to permanent retirement for physical disability. He states: “I did not get to attend my MEB or my PEB and did not even know they had occurred at the time. I was separated at 10% but could not get a job doing even small things because they considered me to be unemployable.” b. The Record of Proceedings details the applicant’s military service and the circumstances of the case. His DD 214 for the period of Service under consideration shows he entered the regular Army on 8 August 1995 and was separated with $8,602.20 of disability severance pay on 27 January 1998 under provisions provided in paragraph 4-24b(3) of AR 635-40, Physical Evaluation for Retention, Retirement, or Separation (1 September 1990). c. The applicant’s pre-entrance Report of Medical History and Report of Medical Examination show he was in good health, without any significant medical history or conditions. d. The applicant was first seen for left wrist pain in May 1996. From his 20 November 1997 medical evaluation board (MEB) narrative summary written by an orthopedic surgeon: “HISTORY OF PRESENT ILLNESS: Specialist {Applicant} incurred an injury to his left nondominant hand in May 1996 when he was helping to set up an MKT {mobile kitchen trailer} while on a field training exercise. He struck the back of his left hand on a steel pin raising a bump at the back of the middle finger metacarpal on the dorsal surface … She felt that the patient had a cyst on this left hand and performed surgery at the clinic at Fort McPherson. According to Specialist {Applicant}, Dr. did not find any cystic material, stated there was damage to the surrounding soft tissues and that the pathology from the tissue removed came back for retained muscle and skeletal fragments. Surgical incision healed, however there has been a persistent mass in and about the surgical incision are which has gotten to be more painful with time ... He has difficulty gripping with the left hand and again is unable to do push-ups, sit-ups, or actually any type of motion with his left upper extremity which causes pain in the left wrist. He had a full course of Occupational Therapy which actually aggravated the condition rather than relieve it. The patient seems to have maximized therapeutic intervention at this point regarding his left hand pain and function. The prognosis for any improvement in this functional status is guarded at best at this time … The patient according to his medical records and by interview seme to have been completely compliant with all treatment and recommendations. At this point in time, I could see no requirement for any future therapeutic follow-ups.” e. The MEB found the his chronic left hand pain to fail the medical retention standards in Chapter 3 of AR 40-501, Standards of Medical Fitness. On 15 December 1997, the applicant agreed with the board’s findings and recommendation and his case was forwarded to a physical evaluation board PEB) for adjudication. His Physical Profile (DA Form 3349) dated 17 December 1997 lists “Left Wrist Pain” as his only profiled medical condition. f. On 18 December 1997, the applicant’s informal PEB found his “Chronic pain, left wrist, status post biopsy of dorsum of wrist” to be the sole unfitting medical condition for continued service. Using the VA Schedule for Rating Disabilities (VASRD), the PEB derived and applied a 10% to this condition and recommended the applicant be separated with disability severance pay. On 29 December, after being counseled on the board’s findings and recommendation by his PEB liaison officer, the applicant concurred with the PEB and waived his write to a formal hearing. g. There is no probative evidence the applicant had additional medical condition(s) which would have failed the medical retention standards of chapter 3, AR 40-501 and thus been subject to a finding of unfitness for continued service and compensable prior to his discharge. Furthermore, there is no evidence an additional medical condition prevented the applicant from being able to reasonably perform the duties of his office, grade, rank, or rating prior to his discharge. h. Review of submitted documentation and his records in JLV shows he has been awarded multiple VA service-connected disability ratings, including a 60% rating for loss of use of his left hand awarded in September 2009. However, the DES compensates an individual only for service incurred medical 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. These roles and authorities are granted by Congress to the Department of Veterans Affairs and executed under a different set of laws. i. It is the opinion of the ARBA Medical Advisor that neither an increase in his military disability rating nor a referral of his case back to the DES is warranted. ? BOARD DISCUSSION: a. The evidence shows the applicant enlisted in the ARNG on 6 August 1991 and he was honorably discharged on 7 August 1995. His NGB Form 22 correctly shows the date of enlistment as 6 August 1991 and date of separation from the ARNG as 7 August 1995. The Board found no error or injustice regarding the date of enlistment. b. The evidence also shows the applicant was issued a permanent physical profile on 16 December 1997 for left wrist pain, that led to his referral to a PEB. The PEB found his condition (chronic pain, left wrist, status post attempted biopsy of lesion on dorsum of wrist) unfitting and recommended a combined rating of 10% with his disposition as separation with severance pay if otherwise qualified. The PEB also found his injury was not based on disability from injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurring in line of duty during a period of war as defined by law. The disability did not result from a combat related injury as defined in 26 USC 104. The applicant concurred. c. The Board reviewed and agreed with the medical advisor’s finding no probative evidence the applicant had additional medical condition(s) which would have failed the medical retention standards of chapter 3, AR 40-501 and thus been subject to a finding of unfitness for continued service and compensable prior to his discharge. Furthermore, there is no evidence an additional medical condition prevented the applicant from being able to reasonably perform the duties of his office, grade, rank, or rating prior to his discharge. Although he has been awarded multiple VA service-connected disability ratings, including a 60% rating for loss of use of his left hand awarded in 2009, the military’s disability system compensates an individual only for service incurred medical condition(s) which have been determined to disqualify him or her from further military service. The VA has the role and 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. Based on the evidence, the Board determined that neither an increase in his military disability rating nor a referral of his case back to the Disability Evaluation System is warranted. d. The evidence shows the applicant held the rank of E-4. There is no documentary evidence in the record nor did the applicant provide any evidence that he was recommended for or promoted to SGT/E-5. e. To be awarded the Purple Heart, the regulatory guidance requires all elements of the award criteria to be met; there must be proof a wound was incurred as a result of enemy action, that the wound required treatment by medical personnel, and that the medical personnel made such treatment a matter of official record. The applicant does not provide any evidence that satisfies these requirements. Additionally, award of the Meritorious Service Medal requires a formal recommendation, approval through the chain of command, and announcement in orders. The applicant does not provide any evidence that satisfies these requirements. f. The Board also noted that for a Reserve Component Soldier deployed with his unit, there is a requirement to enter the place and dates of deployments in Block 18 of the DD Form 214. The applicant does not provide evidence of deployments such as a deployment order, temporary change of station order, Leave and Earnings Statement reflecting hostile fire pay, or any other document confirming exact dates of deployments and location of requested deployments. 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, U.S. 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) 635-40 (Physical Evaluation for Retention, Retirement, or Separation), set forth the policies for the disposition of Soldiers found unfit because of physical disability to reasonably perform the duties of his/her office, grade, rank, or rating. Paragraph 4-24b (3) states separation for physical disability with severance pay (10 USC 1203 or 1206). a. Paragraph 3-1 states that 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. The Soldier will not be declared physically unfit for military service because of disabilities known to exist at the time of the Soldier's acceptance for military service that have remained essentially the same in degree since acceptance and have not interfered with the Soldier's performance of effective military service. b. Paragraph 3-2 states disability compensation is not an entitlement acquired by reason of a 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 service. c. Paragraph 4-17 states PEB's are established to evaluate all cases of physical disability equitability for the Soldier and the Army. It is a fact-finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendations to establish eligibility of a Soldier to be separated or retired because of physical disability. d. An award of a VA rating does not establish entitlement to medical retirement or separation. The VA is not required to find unfitness for duty. Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service connected. The VA can evaluate a veteran throughout their lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. e. Appendix B, paragraph f of that regulations states conditions which do not render a Soldier unfit for military service will not be considered in determining the compensable disability rating unless they contribute to the finding of unfitness. 3. AR 40-501 (Standards of Medical Fitness), in effect at the time, provided medical fitness standards of sufficient detail to ensure uniformity in medical evaluation of certain enlisted military occupational specialties and officer duty assignments in terms of medical conditions and physical defects which are causes for rejection or medical unfitness for these specialized duties. Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement) states the various medical conditions and physical defects which may render a Soldier unfit for further military service. Soldiers with conditions listed in this chapter will be evaluated by a medical board and will be referred to a physical evaluation board (PEB). 4. 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. 5. 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. 6. 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. 7. AR 600-8-19 (Enlisted Promotions and Reductions) prescribes the enlisted promotions and reductions function of the military personnel system. Field grade commanders in units authorized a commander in the grade of LTC or higher have promotion authority to the ranks of SGT and SSG; however, the Promotions Work Center maintains the promotion standing list and issues the orders. Promotion to SGT and SSG are executed in a semi-centralized manner. The criteria for promotion in table 3-2 shows: a. MOS. Soldiers must compete for and be promoted in their MOS b. Military Education. The Primary Leadership Development Course or equivalent course is mandatory prior to promotion to SGT effective 1 October 1989. c. Board appearance. Soldiers must be recommended by a promotion selection board. d. Time requirement for promotion to SGT. Time in service 36 months. e. Time in grade for promotion to SGT. 8 months. f. Promotion points. Soldier must obtain a minimum of 450 points prior to being added to the recommended list. 8. AR 600-8-22 (Military Awards) states: a. The Meritorious Service Medal is awarded to members of the Armed Forces of the United States or of a friendly foreign nation who distinguish themselves by outstanding meritorious achievement or service. After 16 January 1969 but prior to 11 September 2001, the Meritorious Service Medal was authorized to be awarded only for meritorious service or achievement while serving in a non-combat area. As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required. b. The Purple Heart is awarded to any member who, while serving under competent authority in any capacity with one of the Army Services, has been wounded or killed or who has died or may hereafter die after being wounded: (1) In any action against an enemy of the United States; (2) In any action with an opposing armed force of a foreign country in which the Armed Forces of the United States are or have been engaged; (3) While serving with friendly foreign forces engaged in an armed conflict against an opposing armed force in which the United States is not a belligerent party; (4) As a result of an act of any such enemy of opposing armed forces; (5) As a result of an act of any hostile foreign force; (6) After 23 March 1973, as a result of an international terrorist attack against the United States or a foreign nation friendly to the United States, recognized as such an attack by the Secretary of the Army, or jointly by the Secretaries of the separate armed services concerned if persons from more than one service are wounded in the attack; (7) After 28 March 1973, as a result of military operations while serving outside the territory of the United States as part of a peacekeeping force; or (8) Members killed or wounded by friendly fire. (9) Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have required treatment by a medical officer, and the medical treatment must have been made a matter of official record. 9. AR 635-5 (Separation Documents) at the time established the standardized policy for preparing and distributing the DD Form 214. The purpose of the separation document is to provide the individual with documentary evidence of his or her military service. The DD Form 214 is a summary of a Soldier’s most recent period of continuous active duty. It provides a brief, clear-cut record of active-duty service at the time of release from active duty, retirement, or discharge. Enter the beginning date of the enlistment period or tour of AD for which a DD Form 214 was not issued under paragraph 1-4b (5). 10. AR 635-8 (Separation Processing and Documents) For active duty Soldiers deployed with their unit during their continuous period of active service, enter “SERVICE IN (NAME OF COUNTRY DEPLOYED) FROM (inclusive dates).” 11. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220003970 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1