IN THE CASE OF:	  

		BOARD DATE:	        23 January 2009

		DOCKET NUMBER:  AR20080015598 


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, reconsideration of his earlier request that his honorable discharge be changed to a medical retirement for permanent disability with a 70 percent disability rating.  He also requests reconsideration of his earlier request that his separation program designator (SPD) and reentry eligibility (RE) codes be changed to codes which reflect him being retired for a permanent service-connected disability.

2.  The applicant references Army Regulation 15-185 (Army Board for Correction of Military Records) which cites the presumption of administrative "irregularity."  He alleges that the most significant administrative irregularity that exists in his case is the fact that he was not issued a medical profile citing his physical limitations.  He states this administrative irregularity was the major contributing factor that led to him being denied a medical board and a subsequent Army retirement.  He contends that the Board's decision to deny his application based on the fact that he was not issued a medical profile is unjust.  The applicant states that the second most significant administrative irregularity was that he was admitted to Cutler Army Hospital by an Army doctor and assigned to the hospital upon his arrival at Fort Devens, Massachusetts, until he was discharged in May 1980.  He states he was free from all military duties while he was in the hospital.  He believes he should have been assigned to the Medical Holding Company with his duty station being the hospital.  He continues by stating that he was released from the hospital only for discharge processing and to be treated by the Veterans Administration (VA).  The applicant continues by stating that the third administrative irregularity was that his DD Form 214 (Certificate of Release or Discharge from Active Duty) does not reflect a reserve service obligation in block 12i (Reserve Obligation Termination Date).  He contends that he was not allowed to serve in the Reserve.  He states he was subsequently rated by the VA as 70 percent disabled.  He continues by stating that he provided the board a Medical Report statement from an Army doctor which indicated he was qualified for expiration of term of service (ETS) provided he had a follow-up with the VA for gastrointestinal difficulties.  The applicant contends that if the Army had convened a medical board at the time of his discharge, the medical board would have found the same limitations and ratings as the VA.  He contends that his upper extremities would have been rated as "4" and his hearing as "3" if he had been issued a physical profile based on Army and VA medical reports.

3.  The applicant provides a personal statement, dated 3 September 2008, in support of his application.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20070004344 on 1 November 2007.

2.  The applicant has provided new arguments that will be considered by the Board.

3.  The applicant enlisted in the U.S. Army Reserve on 23 November 1976 for a period of 6 years.  He enlisted in the Regular Army on 6 December 1976 for a period of 3 years.  At the completion of basic training and advanced individual training, he was awarded military occupational specialty 95B (military policeman).  His highest grade attained was specialist four, E-4.  He was assigned to the 61st Military Police Company, 3rd Armored Division, in Germany in August 1978.

4.  The applicant was hospitalized on 3 December 1979 at the Cutler Army Hospital, Fort Devens, Massachusetts, for an ulcer and stomach problems.

5.  The applicant's service personnel records contain an affidavit, dated 3 December 1979, which indicates he desired retention on active duty in the Army beyond his scheduled ETS after being advised by an officer of his rights and the advantages of remaining in an active duty status in the Army beyond his scheduled ETS for the purpose of continuing medical care or hospitalization and, if eligible, subsequent separation or retirement for physical disability under the provisions of chapter 61, Title 10, U.S. Code.

6.  He was reassigned to the Medical Holding Company at Fort Devens, Massachusetts, on 6 February 1980.

7.  On 31 May 1980, the applicant was discharged from the Regular Army under the provisions of Army Regulation 635-200 (Personnel Separations), chapter  2, by reason of completion of required service.  He completed 3 years, 5 months, and 25 days of active military service.  His DD Form 214 shows he was retained in the service for 175 days for the convenience of the government per Army Regulation 635-200.

8.  Item 26 (Separation Code) and item 27 (Reenlistment Code) of his DD Form 214 show the entries of "JBK" and "RE-1," respectively.

9.  Item 28 (Narrative Reason for Separation) of the applicant’s DD Form 214 has an entry of "Completion of Required Service."

10.  The applicant’s military records contain a Standard Form 88 (Report of Medical Examination) that was conducted in conjunction with his ETS.  This document essentially stated that the applicant had persistent symptoms [sx] of duodenal ulcer [d/u], and that the surgeon recommended that he be followed by the VA for this condition.  However, this document does not show that he was awarded a physical profile because of his symptoms of a duodenal ulcer, or for any other medical condition at the time.  He was given a physical profile of "111111."

11.  The applicant previously provided a computer printout which appears to be from the VA, which shows that he was granted a combined service-connected disability rating of 70 percent for tinnitus (10 percent), complete atrophy of the testis (0 percent), lower leg condition (10 percent), neurosis (10 percent), flat foot condition (10 percent), neoplasm, benign, skin (10 percent), bursitis (10 percent), ear infection (0 percent), knee condition (10 percent), and an irritable colon (30 percent).

12.  The applicant did not provide any evidence which shows that any of the conditions for which the VA awarded him disability compensation affected his ability to perform his military duties.

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his/her office, grade, rank, or rating in such a way as to reasonably fulfill the purposes of his or her employment on active duty.  In pertinent part, it states 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 his or her office, grade, rank, or rating.  It states 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 they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  When a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement, creates a presumption that a Soldier is fit.  Application of the rule does not mandate a finding of fit.  The presumption is rebuttable and is overcome when the preponderance of evidence establishes the Soldier was physically unable to perform adequately the duties of his or her office, grade or rank.  

14.  Title 38, U.S. 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.  The VA, however, is not required by law to determine medical unfitness for further military service.

15.  Army Regulation 635-5-1 (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.  Additionally, the SPD/RE Code Cross Reference Table establishes RE codes to be assigned for each SPD.

16.  An SPD code of "JBK" applies to persons who are involuntarily discharged at the completion of required active service.  The SPD/RE Code Cross Reference Table shows that an RE code of 3 is the applicable RE code assigned for individuals involuntarily discharged at the completion of required active service.

17.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the United States Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior-service applicants for enlistment.  That chapter includes a list of armed forces RE codes, including Regular Army RE codes.  RE codes 1 and 2 permit immediate reenlistment if all other criteria are met.  An RE code of 3 applies to persons not qualified for continued Army service, but the disqualification is waivable.  An RE code of 4 indicates separation from the last period of service with a disqualification which cannot be waived and ineligibility for reenlistment.  This regulation further provides that RE codes may only be changed if they are determined to be administratively incorrect.

18.  Chapter 7 (Physical Profiling) of Army Regulation 40-501 (Standards of Medical Fitness) provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing and if reclassification action is warranted.  Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES):  
P-physical capacity or stamina, U-upper extremities, L-lower extremities, 
H-hearing and ears, E-eyes, and S-psychiatric.  Numerical designator "1" under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.  Numerical designators "2" and "3" indicate that an individual has a medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military duty.  The individual should receive assignments commensurate with his or her functional capacity.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he was not issued a medical profile citing his physical limitations.

2.  It is acknowledged that the applicant was hospitalized in December 1979 for an ulcer and stomach problems.  His normal ETS was 5 December 1979.  While it is clear that the applicant was retained beyond his ETS in order to receive medical care, there is no evidence in his military records, and the applicant failed to provide any evidence which shows that he had any medical condition which limited his duty performance to the extent that a physical profile had to be issued, or that any medical condition he had warranted evaluation for physical disability.

3.  The applicant was assigned to a Medical Holding Company at Fort Devens, Massachusetts, in February 1980 and was released from active duty under the provisions of Army Regulation 635-200, chapter 2, at the completion of his required active service in May 1980.

4.  The evidence of record shows that prior to the applicant's separation in May 1980, competent medical authority determined that he was then medically qualified for separation with a physical profile of "111111."  The examining physician determined the applicant was qualified for separation and recommended follow-up treatment by the VA for symptoms of duodenal ulcer.
5.  The applicant’s SPD code of "JBK" is the correct SPD for Soldiers discharged at the completion of required active service.  As this was the narrative reason for the applicant’s discharge, there is no basis for changing his SPD code at this time.  At the time of his separation, he was appropriately assigned a RE code of RE-1 in accordance with the governing regulation in effect at the time.

6.  It is noted that the applicant applied to the VA for service-connected compensation and was awarded a combined disability rating of 70 percent for tinnitus; complete atrophy of the testis; lower leg condition; neurosis; flat foot condition; neoplasm, benign, skin; bursitis; ear infection; knee condition; and an irritable colon.

7.  However, the rating action by the VA does not necessarily demonstrate an error or injustice on the part of the Army.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at that time of processing for separation, discharge, or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

8.  The applicant contends that his DD Form 214 does not reflect a Reserve service obligation and that he was not allowed to serve in the Reserve.  However, at this late date, it cannot be determined why he was discharged and not released from active duty.  

9.  The applicant has failed to show through the evidence submitted or the evidence of record that the narrative reason for separation, separation code, and RE code issued to him were in error or unjust.  Therefore, there is no basis for granting his requests.

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 to amend the decision of the ABCMR set forth in Docket Number AR20070004344, dated 1 November 2007.



      _________xxx________________
                 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)                                         AR20080015598



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ABCMR Record of Proceedings (cont)                                         AR20080015598



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