IN THE CASE OF: BOARD DATE: 11 April 2023 DOCKET NUMBER: AR20220009606 APPLICANT REQUESTS: in effect, correction of his military records to show he as separated due to “Physical Disability” instead of “Release from Military Control by Reason of Void Induction. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Statement * DD Form 214 * Veterans Affairs letter, 11 February 2022 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 injured in basic training, and he served during wartime. He has an honorable discharge with 100 percent permanent and total. His DD Form 214 reads voidance of induction and it is incorrect. He is in the process of purchasing a home and he needs his certificate of eligibility, and he is having difficulty getting it because of the incorrect information. 3. On 17 April 1968, a SF 88 (Report of Medical Examination) shows he was qualified for enlistment. 4. On 12 June 1968, a doctor’s note shows he was treated and hospitalized at Jubilee Hospital, Henderson, NC in May 1966. The diagnosis was acute lumbosacral spine sprain. Result of treatment was guarded. The applicant was also seen on 15 January 1968, with same complaint. 5. The applicant was inducted into the Army of the United States on 18 April 1968 after being found acceptable for induction. 6. On 10 July 1968, he was notified by competent medical authorities that, based upon preliminary findings, he was erroneously enlisted or inducted because he did not meet the procurement medical fitness standards in accordance with (IAW) chapter 2, Army Regulation (AR) 40-501 (Medical Fitness Standards) for induction. It was explained to him: * he may be discharged from the military service under the provisions of AR 635- 200 (Personnel Separations – Enlisted Personnel), because he did not meet the medical fitness standards upon enlistment or induction even though he met the physical standards for retention * he understood that such separation will be without disability retirement or disability severance pay; however, it does not preclude him applying for benefits administered by Veterans' Administration * he understood that if he chose to be discharged, he will be honorably separated for erroneous induction or enlistment, unless other circumstances connected with his period of service require a different type of separation * he requested separation and did not desire to complete the term of service for which he was inducted 7. SF 88 shows an examination was conducted on 10 July 1968, which shows he was not qualified for service. It was recommended he be separated IAW AR 635-200. He was not qualified under AR 40-501, paragraph 2-36b. 8. On DA Form 2496 (Disposition Form) the applicant under the provisions (UP) of AR 635-200, paragraph 5-9.1 requested that he be released from the U.S. Army. His induction was not procured by fraud by his part. He understood that if his request is approved, he will not be issued a discharge certificate or DD Form 214. He further understood that this will be a void induction. 9. On 17 and 18 July 1968, his commander and chain of command recommended approval of his request. 10. A Telephone or Verbal Conversation Record shows on 7 August 1968, a message from Mrs. Department of the Army, stated the applicant was to be separated UP of SPN (separation program number) 376 was verbally confirmed. 11. Accordingly, he was honorably discharged on 14 August 1968. His DD Form 214 shows he completed 2 months and 1 day of net service this period. It also shows: * Item 11a (Type of Transfer or Discharge): Released from military control by reason of void induction * Item 11c (Reason and Authority): AR 635-200 SPN 376 Voidance of Induction 12. The applicant provides Veterans Affairs letter, 11 February 2022, which shows he is rated at 100 percent effective 1 January 2022. 13. AR 635-200 dated 23 January 1967, in effect at the time, prescribes the separation documents that will be furnished each individual who is separated from the Army, and establishes standardized procedures for the preparation and distribution of these documents. 14. 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. 15. 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. 16. Title 38, CFR, Part IV is the VA’s schedule for rating disabilities. The DVA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge. As a result, the DVA, 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 DVA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 17. MEDICAL REVIEW: a. 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: b. The applicant is applying to the ABCMR requesting in essence a referral to the Disability Evaluation System. He states “I was injured during basic training and I served during wartime, and I have an honorable discharge with 100 percent permanent and total.” c. The Record of Proceedings details the applicant’s military service and the circumstances of the case. His DD 214 shows he entered the regular Army on 14 June 1968 and was honorably discharged on 14 August 1968 under the provisions provided in AR 635-200, Personnel Separations - Enlisted Personnel (15 July 1966). The separation program number (SPN) 376 denotes the reason for separation as “Release from military Control (void Inductions) because of not meeting medical fitness standards at time of induction.” d. Because of the period of service under consideration, there are no encounters in AHLTA or documents uploaded in iPERMS. e. From a physician’s 12 June 1968 “To Whom It May Concern” memorandum: “This is to certify that the above patient was treated and hospitalized at Jubilee Hospital, Henderson, North Carolina in May 1966. Diagnosis: Acute Lumbosacral spine sprain. Result of treatment: Guarded . Patient also was seen on January 15,1968 with same complaint.” f. A Report of Medical Examination completed 10 July 1968 shows the applicant found unqualified for military service for the pre-existing condition of “Chronic lumbar strain” which failed the medical induction standard in paragraph 2-36b of AR 40-501, Standards of Medical Fitness (19 June 1968). This paragraph states a cause for rejection for induction is: “Complaint of disease or injury of the spine or sacroiliac joints either with or without objective signs which has prevented the individual from successfully following a physically active vocation in civilian life. Substantiation or documentation of the complaint without objective signs is required.” g. From the applicant’s 10 July 1968 memorandum requesting separation: “I have been notified by competent medical authorities that, based upon preliminary findings, I was erroneously enlisted or inducted because I did not meet the procurement medical fitness standards in accordance with Chapter 2, AR 40-501, for induction. It has been fully explained to me that I may be discharged from the military service under the provisions of AR 635-200, because I did not meet the medical fitness standards upon enlistment or induction even though I meet the physical standards for retention. I understand that such separation will be without disability retirement or disability severance pay; however, it does not preclude my applying for benefits administered by Veterans' Administration ...In consideration of the above, I hereby request separation and do not desire to complete the term of service for which enlisted or inducted.” h. There is no probative evidence the applicant had any duty incurred medical condition which would have failed the medical retention standards of chapter 3 of AR 40-501, Standards of Medical Fitness, prior to his discharge. Thus, there was no cause for referral to the Disability Evaluation System. i. Review of his records in JLV shows he has been awarded several VA service- connected disability ratings; the earliest rating awarded on 4 May 2017 . However, the DES only compensates an individual 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. j. It is the opinion of the ARBA medical advisor that neither a change in his separation authority nor a referral to the Distality Evaluation System is warranted. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. The evidence of record shows shortly after his entry on active duty, medical authorities informed him that based upon preliminary findings, he was erroneously enlisted or inducted because he did not meet the procurement medical fitness standards in accordance with chapter 2, AR 40-501 (Medical Fitness Standards) for induction. As a result, he was honorably discharged on 14 August 1968. His DD Form 214 shows he completed 2 months and 1 day of net service this period. It also shows the reason for his separation was his release from military control by reason of void induction/voidance of induction. The Board also reviewed and agreed with the medical advisory opinion that there is no probative evidence the applicant had any duty incurred medical condition which would have failed the medical retention standards of chapter 3 of AR 40-501, Standards of Medical Fitness, prior to his discharge. Thus, there was no cause for referral to the Disability Evaluation System. ? 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.1. 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) 635-200 (Personnel Separations – Enlisted Personnel) dated 23 January 1967, in effect at the time, prescribes the separation documents that will be furnished each individual who is separated from the Army, and establishes standardized procedures for the preparation and distribution of these documents. a. Change 4 changed on 30 October 1968, stated on page 11, paragraph 31, subparagraph d added When an individual is released from military control by reason of a void induction, enter “AR 635-200, SPN 376, Void Induction”. b. Change 7 changed on 11 April 1969, stated page 11, paragraph 31d (as added by change 4, 30 October 1968) is rescinded. 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 (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. 4. AR 635-40 (Physical Evaluation for Retention, Retirements, 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. 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. 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. 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) AR20220009606 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1