IN THE CASE OF:	  

		BOARD DATE:	 	  23 October 2008 

		DOCKET NUMBER:  AR20080013148 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, correction of his records to show that he was medically retired.

2.  The applicant states, in effect, he should be medically retired based on the 100 percent service-connected disability rating he was given by the Department of Veterans Affairs (VA).  He also states he and his family have endured hardships due to the severity of his pain and suffering, and the extended amount of time he has suffered from Post-Traumatic Stress Disorder (PTSD).  He adds that a fellow veteran of American Legion, Post 300, recently informed him of the new laws enacted by Congress that make it possible to upgrade a discharge to a medical retirement and obtain benefits.  The applicant concludes by stating his condition was seriously aggravated by improper diagnosis, both while he was on active duty and after his separation from active duty, and he suffered for more than a decade before being properly diagnosed and treated by the VA.

3.  The applicant provides copies of an OMB Number 2900-0075 (Statement in Support of Claim), dated 25 July 2008; VA, Houston Regional Office, Houston, Texas, letter, dated 14 March 2005 and VA Rating Decision, dated 1 March 2005; DD Form 214 (Certificate of Release or Discharge from Active Duty) with an effective date of 11 October 1989; and DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty), dated 26 November 1991, in support of his application.



CONSIDERATION OF EVIDENCE:

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 Army Board for Correction of Military Records (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.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant’s military service records show he enlisted in the U.S. Army Reserve on 6 November 1979 and entered active duty in the Regular Army for a period of 4 years on 20 November 1979.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty (MOS) 19E (M48 - M60 Armor Crewman).

3.  The applicant's military service records contain a DA Form 2-1 (Personnel Qualification Record).  Item 5 (Oversea Service) shows he served in the Far East Pacific Command (Republic of Korea) from 17 March 1980 through 16 March 1981; U.S. Army, Europe (Federal Republic of Germany) from 13 August 1982 through 3 August 1984, and Far East Pacific Command (Republic of Korea) from 28 September 1988 through 16 October 1989.  Item 4 (Assignment Considerations), in pertinent part, contains the statement "Not recommended for further service (870722)/Reviewed 890131."

4.  The applicant's military service records contain a DA Form 4126-R (Bar to Reenlistment Certificate), dated 6 July 1987, with 3 command endorsements.  This documentation shows that a Bar to Reenlistment on the applicant was approved by the battalion commander based on the applicant's failure to make satisfactory progress in the Army Weight Control Program.

5.  The applicant's military service records contain a DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG)), dated 11 October 1989.  This document shows that a FLAG pertaining to the applicant that was based on the Weight Control Program was transferred to the 509th Personnel Service Company (Korea), effective 11 October 1989.


6.  The applicant's military service records contain a DD Form 214, with an effective date of 11 October 1989 and DD Form 215, dated 26 November 1991. The DD Form 214, as corrected by the DD Form 215, shows the applicant was honorably discharged under the provisions of Army Regulation 635-200, Chapter 4, based on Expiration Term of Service (ETS) with Separation Code "JBK."  At the time, the applicant was credited with completing 8 years, 10 months, and
22 days net active service this period and 14 days total prior inactive service.  Item 21 (Signature of Member Being Separated) shows that the applicant placed his signature on the document.

7.  There is no evidence that the applicant was referred to a Medical Evaluation Board (MEB) or a Physical Evaluation Board (PEB).

8.  In support of his application, the applicant provides the following documents:

     a.  OMB Number 2900-0075 (Statement in Support of Claim), dated 25 July 2008; DD Form 214, with an effective date of 11 October 1989; and DD Form 215, dated 26 November 1991.  The Statement in Support of his VA claim was summarized and incorporated in the applicant's request.  The DD Form 214 and DD Form 215 were previously introduced and considered in this Record of Proceedings.

     b.  VA, Houston Regional Office, Houston, Texas, letter, dated 14 March 2005 and VA Rating Decision, dated 1 March 2005, in pertinent part, show the VA verified that the applicant served in the U.S. Army from 20 November 1979 to
11 October 1989.  This documentation also shows that, based on a review of the evidence contained in the claim the applicant filed for increased evaluation of his severe PTSD, the VA granted entitlement to the 100 percent rating because he is unable to work due to his service-connected disability, effective 12 June 2004.

9.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time of the applicant's separation from active duty, prescribed policies and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons.  Chapter 4 (Separation for Expiration of Service Obligation) provides that a Soldier will be separated upon expiration of enlistment or fulfillment of service obligation.

10.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  
It identifies the SPD code of "JBK" as the appropriate code to assign enlisted Soldiers discharged under the provisions of Army Regulation 635-200, Chapter 4, based on expiration term of service.  

11.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time of the applicant's discharge, set forth policies, responsibilities, and procedures in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  Paragraph 3-1 (Standards of unfitness because of physical disability) of this Army regulation, provides, in pertinent part, that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of their office, grade, rank, or rating.

12.  Paragraph 4-10 (The Medical Evaluation Board) of Army Regulation 635-40 provides that medical evaluation boards are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualification for retention based on the criteria in Army Regulation 40-501 (Standards of Medical Fitness), Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement).  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

13.  Title 38, United States Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  The VA, which has neither the authority, nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual’s civilian employability.  In addition, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings. Thus, the VA may rate any service-connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.

14. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.
DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his records should be corrected to show he was medically retired because he suffers from severe PTSD that was improperly diagnosed while he was on active duty; however, his condition was subsequently properly diagnosed and he was granted a 100 percent service-connected disability rating for his condition by the VA.

2.  There is no evidence that the applicant was referred to a Medical Evaluation Board or a Physical Evaluation Board.  Moreover, there is no evidence that shows the applicant was found medically unfit for retention in the U.S. Army based on the criteria in Army Regulation 40-501 (Standards of Medical Fitness).  

3.  There is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial creditable evidence to rebut the presumption.  Since there is no evidence of record to show that the applicant's medical condition was medically unfitting for retention at the time in accordance with Army Regulation 40-501, there was no basis for medical separation or retirement.  Therefore, there is insufficient evidence to support the applicant’s claim and the applicant is not entitled to correction of his records to show he was discharged or retired based upon physical disability.

4.  The evidence of record shows the applicant’s discharge under the provisions of Army Regulation 635-200, Chapter 4, based on expiration term of service was administratively correct and in compliance with applicable regulations.  Records show the applicant was properly and equitably discharged in accordance with the regulations in effect at that time, and all requirements of law and regulations were met.  

5.  The evidence of record shows that the VA granted the applicant service- connection for severe PTSD (100 percent), effective 12 June 2004.  However, the Army rates only conditions determined to be physically unfitting that were incurred or aggravated during the period of service.  Furthermore, it can rate a condition only to the extent that the condition limits the performance of duty.  The VA, on the other hand, must provide compensation for disabilities which it determines were incurred in or aggravated by active military service and which impair the individual's industrial or social functioning, including those that are detected after discharge.  Moreover, the law requires the VA must give the veteran the benefit of any reasonable doubt.  The fact that the VA, in its discretion, granted the applicant a service-connected disability rating is a prerogative exercised within the policies of that agency.

6.  As a matter of information, the Records Management and Declassification Agency (RMDA), Joint Services Records Research Center, serves as the Department of Defense Executive Agent for matters pertaining to Post-Traumatic Stress Disorder claims, Agent Orange research, and in support of requests for unit records from individual veterans, the Department of VA, and veterans' service organizations.  The applicant may access the RMDA website for additional information pertaining to PTSD claims at: https://www.rmda.army.mil.

7.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  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 that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      __________X____________
               CHAIRPERSON
      
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.

ABCMR Record of Proceedings (cont)                                         AR20080013148



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ABCMR Record of Proceedings (cont)                                         AR20080013148



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