2  The applicant requests, in effect, a change in his physical disability rating that would allow him to retire by reason of physical disability; that his                      non-commissioned officer evaluation report (NCO-ER) for the period ending July 1991 be amended; that he receive incapacitation pay; and that his Inspector General (IG) complaint regarding the violation of his profile be handled in a manner consistent with the Uniform Code of Military Justice.  He states, in effect, that he was not given a fair and equitable evaluation by his Physical Evaluation Board (PEB).  The Army violated his profile while he was in Saudi Arabia, severely aggravating his chronic back condition.  When he was returned to the States for medical evaluation, the Medical Evaluation Board (MEB) and the PEB did not properly consider all his medical conditions.  Only 68 days after the Army stated he had a mild medical condition, the Delaware Air National Guard found him not physically qualified for duty and enlistment as a security guard.  (The VA has given him a 40 percent rating and will possibly soon award him a 100 percent rating).  The NCO-ER he received for that period gave him the lowest rating he ever received.

3.  Counsel makes no statement.

4.  The applicant’s military records show he was born on 23 November 1946.  He enlisted in the Regular Army on 28 August 1967.  He served 15 months in Vietnam.  He was honorably discharged on 26 June 1970.  He enlisted in the Delaware Army National Guard on 9 July 1975.

5.  The earliest evidence in the records to show the applicant had a permanent profile is an entry on an NCO-ER that shows he had a profile since December 1988.  

6.  The applicant deployed to Southwest Asia on 25 December 1990 until 1 May 1991.  He apparently injured his neck and back while filling and piling sandbags and this prevented him from performing normal, soldier duties.  His commander returned him to the States for medical evaluation.

7.  A demobilization physical examination on 14 May 1991 medically cleared him for release from active duty.  He was released on 6 June 1991.

8.  The applicant had filed an IG complaint with Central Command (CENTCOM), claiming his commander violated his profile.  On 20 June 1991, the IG found the allegation unsubstantiated.  The applicant did not tell the non-commissioned officer in charge that he had a profile.  When he brought his complaint to the 



commander, the commander changed his job and returned him to the States for medical evaluation.

9.  On 25 June 1991, a PEB found the applicant fit for duty.  The applicant noncurred in the findings and requested a formal hearing.

10.  The applicant received a Desert Storm NCO-ER for the period October  1990 - July 1991.  He received two “no” entries in Part IVa; two “needs some improvement” and one “needs much improvement” ratings in Part IV(b-f); his rater rated his potential as “marginal” and his senior rater rated his overall performance as “fair” and his potential as “poor.”  The NCO-ER has many negative comments on it.  (Depending on the NCO-ER version, all preceding NCO-ERs available show the applicant received “success,” “excellence” or “superior” ratings.)

11.  On 7 August 1991, the applicant was notified by the Delaware Air National Guard that they found him not physically qualified for duty and enlistment as a security guard.

12.  On 16 September 1991, the applicant requested a commander’s inquiry concerning his NCO-ER.

13.  On 28 October 1991, a formal PEB found the applicant unfit for duty for a diagnosis of osteoarthritis, cervical spine and chronic low grade disc syndrome at a 10 percent disability rating.  The PEB found the itiology of his back condition unclear; however, it believed his duty requirements in Saudi Arabia, coupled with a fall at Fort Meade, MD, permanently aggravated his pre-existing condition.  The applicant did not concur.

14.  On 19 November 1991, the applicant was awarded the Delaware Distinguished Service Medal for service in Southwest Asia.

15.  A letter from a civilian doctor dated 18 December 1991 stated he had diagnosed the applicant with ten medical conditions, mostly relating to the spine, and the applicant would require extensive vocational rehabilitation to prepare him for sedentary work and even that with limitations. 
16.  On 6 December 1991, the applicant filed a complaint with the Delaware Army National Guard IG (the allegations the same as those filed with the CENTCOM IG).  



17.  On 27 December 1991, the applicant submitted a rebuttal to the formal PEB. On 27 January 1992, the PEB noted that no new evidence was brought up and did not change its findings.  The applicant rebutted again.
18.  On 6 February 1992, the applicant underwent surgery of an anterior cervical discectomy with interbody fusion.  His doctor stated on 11 March 1992 that he was doing quite well.  Post-operation x-rays showed good alignment and progressive healing of the bone graft.
19.  On 18 June 1992, the applicant extended in the Army National Guard for one year.  On this date also he certified that he underwent a complete medical examination on or about 14 May 1991, since that time he had been treated from 17 October 1991 to the present for cervical spine fusion, treatment including hospitalization, and he believed he was now medically qualified to perform satisfactory military service.

20.  On 7 July 1992, the PEB administratively closed his case.

21.  The applicant received an annual NCO-ER for the period August 1991 - September 1992 (sic).  The rater gave him “success” ratings in all categories and rated his potential as “fully capable.”  His senior rater gave him 2-block ratings for overall performance and potential.  Comments on the NCO-ER included:  “Profile does not interfere with individual’s ability to perform assigned duties;” He overcomes physical limitations to execute his duties and responsibility in an exemplary manner;” and “Limited physical capability did not impact on his ability to assist in improving subordinate readiness.”  The applicant signed the report.

22.  On 16 December 1992, the commander’s inquiry into his NCO-ER was completed.  The inquiry determined that no error, illegality, injustice or violation of the regulation occurred and the NCO-ER was reflective of his performance during the period rated.

23.  On 1 February 1993, the applicant was transferred to the Retired Reserve, in pay grade E-7, after 23 years of service for pay.

24.  On 20 March 1994, the Delaware Army National Guard IG determined that the evidence of the applicant’s allegations was inconclusive.  Their investigation failed to prove categorically that the allegation did or did not occur.

25.  In the processing of this case, an advisory opinion was obtained from the Office of the Surgeon General (SEE ATTACHED).  That office reviewed the 


applicant’s records and believed that the MEB properly considered his disabilities and that the disposition by the PEB was reasonable.  

26.  Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability.  The regulation defines “physically unfit” as unfitness due to physical disability.  The unfitness is of such a degree that a soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purpose of his employment on active duty.  “Physically unfit” is synonymous with “unfit because of physical disability.”

27.  The Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) is the standard under which percentage rating decisions are to be made for disabled military personnel.  The VASRD is primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  Unlike the VA, the Army must first determine whether or not a soldier is fit to reasonably perform the duties of his office, grade, rank or rating.  Once a soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VASRD.  These percentages are applied  based on the severity of the condition.

28.  Title 38, United States Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.

29.  Army Regulation 623-205 sets the policies and procedures governing the Noncommissioned Officer Evaluation Reporting System (NCOERS).  In pertinent part, it provides that a commander will look into allegations that a report rendered by one of his subordinates may be illegal, unjust, or otherwise in violation of this regulation.  The procedures may be as formal or informal as the commander deems appropriate.  It is not intended to be a substitute for the appeals process, which is the primary means of addressing errors and injustices after they have become a matter of permanent record.  If, after looking into the allegations, the commander finds that no illegality, injustice or violation of the regulation has occurred, he will advise the individual requesting the inquiry and take no further action.

30.  Army Regulation 135-381, in pertinent part, provides the authority for continuation of pay and allowances under certain circumstances to soldiers who are disabled in the line of duty from injury, illness or disease.  The request is 


initiated by the soldier, who must show that his injury, illness or disease has resulted in the loss of civilian pay, and processed through command channels.

CONCLUSIONS:  

1.  The applicant has provided no evidence to show the MEB and PEB improperly considered his disabilities.  On 28 October 1991, a formal PEB found the applicant unfit for duty with a disability rating of 10 percent.  The applicant rebutted this finding, stating his medical condition was much worse than the medical boards noted.  However, on 18 June 1992, the applicant certified that he believed he was medically qualified to perform satisfactory military service.  The applicant’s annual NCO-ER for the period August 1991 - September 1992 showed his raters gave him “success” ratings in every category, stated his profile did not interfere with his ability to perform assigned duties, and he overcame his physical limitations to execute his duties and responsibilities in an exemplary manner.  There is no evidence the applicant ever rebutted or appealed this  NCO-ER.

2.  Medical fitness standards for enlistment are usually stricter than those for retention.  It is very probable that the applicant did not meet the enlistment standards for entry into the Air National Guard while still meeting Army retention standards.

3.  The rating action by the VA does not necessarily demonstrate an error or injustice in the Army rating.  The VA, operating under its own policies and regulation, assigns disability ratings as it sees fit.  Any rating action by the VA does not compel the Army to modify its rating.  

4.  The applicant has submitted no evidence that he ever requested incapacitation pay and has submitted no documentation to support a claim for such pay.

5.  The applicant’s request regarding his IG complaint does not pertain to the correction of his military records and so this Board has no jurisdiction to grant relief.

6.  There is an element of injustice in regards to the applicant’s NCO-ER for the period October 1990 - July 1991.  The commander’s inquiry determined there was no error, injustice, illegality or violation of the regulation in the preparation of the report.  However, there were obvious errors on the report.  The report’s 



ending period is July 1991.  The applicant departed Saudi Arabia on 1 May 1991 and should have received a change of rater report at that time.  There are no counseling dates listed on the report.  Counseling was required during Operation Desert Shield, although that requirement was suspended when hostilities started. 
The report is so obviously adverse for a Sergeant First Class that the question arises as to why he was not relieved from duty sooner and given a relief for cause report.  If his performance of duty was so poor, he should not have been considered for award of the Delaware Distinguished Service Medal.

7.  The timing of the NCO-ER raises suspicions.  At some point the applicant filed an IG complaint with CENTCOM; that office replied to him on 20 June 1991 stating his allegations were unsubstantiated.  All raters signed the report on      31 July 1991.  (Here, also, is a technical error.  As the ending period of the report was through the month of July, the earliest it should have been signed was         1 August 1991.)  This Board suspects the NCO-ER may have been rendered at least in part in reprisal for his complaint to the IG.  

8  In view of the foregoing, it would be in the interest of justice to correct the applicant’s records as recommended below.

RECOMMENDATION:  

1.  That all of the Department of the Army records related to this case be corrected by deleting the NCO-ER for the period October 1990 - July 1991 from the applicant’s records.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:

                       GRANT AS STATED IN RECOMMENDATION

                       GRANT FORMAL HEARING

                       DENY APPLICATION




                                                                          
			CHAIRPERSON