BOARD DATE:	  22 October 2009

		DOCKET NUMBER:  AR20090008648 


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 correction of his records to show he was medically separated instead of honorably discharged. 

2.  The applicant states that the Department of Veterans Affairs (DVA) Board of Veterans Appeals considered his claim for entitlement to service-connected compensation and remanded his case to the DVA Regional Office.  In its remand, the DVA Board of Veterans Appeals shows that in April 1980, after being punched by a fist in the right side of his face, there was pain and swelling and that he was tender and swollen over a fracture of the right zygomatic arch.  A subsequent X-ray examination showed a fracture of the right zygomatic arch and that the assessment was that of a non-displaced fracture of the right zygomatic arch.

3.  The applicant provides a copy of the DVA Board of Veterans Appeals decision, dated 10 July 2007, in support of his request.

COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant identified the Disabled American Veterans (DAV) in his application as his counsel.

2.  A staff member of the Board sent an email to the local DAV representative to review the applicant's records and submit comments within a specified timeframe; however, the DAV representative did not show up for a records review within the specified timeframe.
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 records show he enlisted in the Regular Army (RA) for a period of 4 years on 20 April 1976.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 63B (Wheeled Vehicle Mechanic).  His records also show he executed an
8-month extension on 15 August 1979, a 3-year reenlistment on 20 October 1983, and a 6-month extension on 24 July 1986.  He was also awarded MOS 16D (Hawk Missile Crewmember).

3.  The applicant's records further show he served in Germany from 6 October 1976 to 6 February 1979; Korea from 24 February 1981 to 24 February 1982; and Germany from 17 December 1986 to 18 November 1987.

4.  On 28 October 1986, the applicant's immediate commander initiated a Bar to Reenlistment Certificate against the applicant citing his prior three instances of nonjudicial punishment, two instances of dishonored checks, dismissal from the Primary Leadership Development Course, unsatisfactory progress in the Basic Skills Education Program, one incident of family violence, failure to be recommended for promotion, and a letter of reprimand for improper involvement with a female Soldier.  He was provided with a copy of the bar and submitted a statement on his own behalf.  His bar was ultimately approved by the approval authority on 21 November 1986.

5.  On 21 September 1987, the applicant's bar to reenlistment was reviewed; however, it was not recommended for removal.

6.  On 22 October 1987, the applicant voluntarily requested to be discharged from the Army under the provisions of chapter 16 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) by reason of the inability to overcome his locally imposed bar to reenlistment.
7.  On 2 November 1987, the separation authority approved the applicant's request for discharge and directed he receive an Honorable Discharge Certificate.  Accordingly, the applicant was discharged on 18 November 1987.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was honorably discharged under the provisions of chapter 16 of Army Regulation 635-200.  This form further shows he completed 11 years,
6 months, and 29 days of creditable active service.  Item 26 (Separation Code) of this form shows the entry "KGF" and item 28 (Narrative Reason for Separation) shows the entry "Locally Imposed Bar to Reenlistment."

8.  On 14 September 1990, the applicant petitioned the Army Discharge Review Board (ADRB) for a review of his discharge.

9.  On 21 July 1992, the ADRB determined that the applicant was properly and equitably discharged.

10.  The applicant's medical records are neither available for review with this case nor were they provided by the applicant.

11.  There is no indication in the applicant's service records that he suffered an injury to his face.  Furthermore, there is no indication that he was issued a permanent physical profile that restricted his duties and/or assignments or that he underwent a medical evaluation board (MEBD) or physical evaluation board (PEB).

12.  The applicant submitted a copy of the DVA Board of Veterans Appeals decision, dated 10 July 2007, in which the DVA Board of Veterans Appeals ordered the applicant's claim for service-connected disability be returned to the DVA Regional Office for readjudication.  It is unclear if the applicant's case was readjudicated by the DVA Regional Office.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 16 of the regulation in effect at the time covered discharges caused by changes in service obligation.  Paragraph 16-5(b) applied to personnel who were denied reenlistment and provided that, if they received a locally imposed bar to reenlistment, and were unable to overcome the bar, they could apply for immediate separation.

14.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) 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 or her office, grade, rank, or rating.  It provides for MEBDs, which 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 qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness).  If the MEBD determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

15.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the VA Schedule for Rating Disabilities (VASRD).  Army Regulation 635-40, appendix B, modified those provisions of the rating schedule inapplicable to the military and clarified rating guidance for specific conditions.  Ratings can range from 0 to 100 percent, rising in increments of 10 percent.

16.  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 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 at less than 30 percent.

17.  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 higher VA rating does not establish error or injustice in the Army rating.  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 awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  As a result, these two Government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment.  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.






DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the narrative reason for his separation should be changed to show medical separation.

2.  The evidence of record shows that subsequent to a pattern of specific incidents of substandard performance and/or misconduct, the applicant's immediate commander initiated a Bar to Reenlistment Certificate against him.  He subsequently voluntarily, willingly, and in writing requested separation from the Army for inability to overcome the bar to reenlistment.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  He was ultimately discharged by reason of his locally imposed bar to reenlistment, which is correctly shown on his DD Form 214. 

3.  There is no evidence in the applicant's records and the applicant did not submit any evidence that show he was injured in the face or that he had any medical condition which would have warranted his referral to the PDES.  Therefore, he was not considered by an MEBD.  Without an MEBD, there would have been no basis for referring him to a PEB.  Without a PEB, the applicant could not have been issued a medical discharge for physical disability.

4.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Therefore, he is not entitled to relief.

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)                                         AR20090008648



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ABCMR Record of Proceedings (cont)                                         AR20090008648



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