BOARD DATE:	  7 July 2011

		DOCKET NUMBER:  AR20110000530 


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 reconsideration of his earlier request that his 1974 discharge be changed from a hardship discharge to retirement by reason of physical disability.

2.  The applicant states he still has some concerns that were not adequately addressed or answered by the Board.

	a.  If the Board would examine his medical records, the Board would note his permanent physical profile for "no cold weather duty assignment due to Reynaud's" [Reynaud's is a blood vessel spasm (vasospasm) disorder that causes discoloration of the fingers, toes, and other areas].  He was unable to function or perform the duties required of his military occupational specialty (MOS) as per his doctor's evaluations and restrictions and unit evaluations through the official message that was sent to his unit at the time while awaiting an answer regarding his request for compassionate reassignment while at Fort Ord, CA, after his emergency leave had expired.

	b.  He believed he was in good health.  He was young and he had hope.  He had medical problems noted on his separation physical in 1974.  The consequences of these problems at that time and prior were not addressed in any detail and their impact on his quality of life was not explained.  He asked to be deleted from his last duty assignment, but his doctor denied his request.  His separation physical was processed with no concern for his health or well-being.  No extensive examination was conducted.

	c.  He was unaware he was applying for a waiver when he enlisted.  His battalion adjutant told him he could take the hardship discharge and take care of his family.  He also told him he had 1 year to reenlist with no loss of rank or grade, then finish out his service and retire at 20 years.

	d.  The Board pointed out a medical defect without being specific as to how or why this defect would prevent his enlistment if, in fact, this same condition did not affect the performance of his MOS duties.  The condition of his situation was temporary as stated in the application for compassionate reassignment.

	e.  The permanent profile and the doctor's evaluations and restrictions show his service was interrupted and he could not perform the duties required of his specialty and grade.  The Department of Defense also determined he was not qualified to perform the duties of his MOS or to be retained in the Army in another MOS.

	f.  He previously had a heart attack and his heart disease was related to Agent Orange.  His permanent physical profile was related to Reynaud's.  Its symptoms lead him to ask to be considered under the Army Physical Disability Evaluation System (PDES) and referral to a medical evaluation board (MEB)/
physical evaluation board (PEB).

	g.  Finally, there is one more unanswered question related to his enlistment physical.  He never received a copy of that physical.  The Freedom of Information Act guarantees his right to his medical records.

3.  The applicant provides the following documents:

* Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim)
* letter to the VA regarding his claim
* previously-submitted Standard Form 93 (Report of Medical History), dated 7 May 1974
* previously-submitted endorsement from the Army Enlistment Eligibility Activity (EEA), dated 24 April 1975, 

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 AR20100016665 on 7 December 2010.

2.  The applicant did not submit any new documentary evidence; however, he submitted a new argument in which he seeks clarification of certain issues.  This argument, which was not previously reviewed by the ABCMR, is considered new evidence and as such warrants consideration by the Board.

3.  The applicant enlisted in the Regular Army (RA) on 6 March 1961 and held MOS 760.00 (Supply Clerk).  He served in Germany from December 1961 to February 1964.  He was honorably released from active duty on 24 February 1964 and he was transferred to the U.S. Army Reserve Control Group (Reinforcement) to complete his remaining service obligation.

4.  On 26 March 1965, he executed a 3-year enlistment in the RA.  He served in Vietnam from August 1965 to August 1966.  He was honorably discharged in the rank of sergeant (SGT) on 8 April 1968 by reason of expiration term of his term of service.

5.  He again enlisted in the RA for 3 years on 29 June 1970 and he was promoted to staff sergeant (SSG)/E-6 on 28 June 1971.  He held MOS 11B (Light Weapons Infantryman).  He was honorably discharged on 6 July 1972 for the purpose of immediate reenlistment.

6.  On 7 July 1972, he executed a 6-year reenlistment in the RA.  He was assigned to Fort Ord at the time.  He departed Fort Ord around September 1973 and subsequently served with Company B, 1st Battalion, 16th Infantry, in Germany from October 1973 to October 1975.

7.  On 26 April 1974, he submitted a request for a hardship discharge based on financial hardship and dependency.  He was married to a Korean wife and he was sponsoring 13 members of her family who were in the United States and neither his wife nor her family spoke sufficient English to help with family support. His request for a hardship discharge was approved.

8.  He was honorably discharged on 20 May 1974 under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 6-13b, due to hardship. 
He completed 9 years, 10 months, and 1 day of total active service.

9.  The applicant's Enlisted Efficiency Reports (EER's) show he received primarily "outstanding" and "excellent" efficiency/evaluation reports as a noncommissioned officer (NCO).  There is no evidence in his records to reflect that he could not or was not performing the duties of his MOS.  His EER's show the following:

* June 1970-July 1970; Drill SGT, duty MOS 00F, Fort Ord, above average duty performance, continue in current duty MOS
* July 1970-March 1971; Drill SGT, duty MOS 00F, Fort Ord, excellent performance, continue in current duty MOS
* August 1971-March 1972; Drill SGT, duty MOS 00F, Fort Ord, outstanding performance, continue in current duty MOS 
* February 1973-August 1973; Instructor, duty MOS 11B, Fort Ord, outstanding performance, continue in current duty MOS
* April 1972-January 1973; Instructor, duty MOS 11B, Fort Ord, outstanding performance, assign in current MOS at a higher organizational level

10.  The applicant's Enlisted Evaluation Data Reports, which list his MOS evaluation scores, show the following:

* August 1971, he scored 80 percent on his MOS evaluation; his MOS is listed as verified
* November 1972, he scored 93 percent on MOS evaluation, his MOS is listed as verified
* August 1973, he scored 90 percent on his MOS evaluation; his MOS is listed as verified

11.  His service medical records were not available for review with this case.  It is presumed they were loaned to the VA in San Francisco, CA, in 1975.  Additionally, there is no indication in the available medical records that shows he suffered from a disabling condition that was diagnosed by a medical examination or that he was issued a permanent physical profile that would have warranted his entry into the PDES.

12.  He previously provided a Standard Form 93, dated 7 May 1974, that shows he underwent a separation physical at Panzer Kaserne, Germany.  He indicated he was in good health.  No disabling condition was mentioned on this form.

13.  On 24 April 1975, approximately a year after his discharge, he applied for a waiver to again enlist in the RA and the EEA denied his request contending that he had two disqualifications, one being a medical defect and the other that he had been discharged for hardship/dependency.  His medical records for this enlistment are not available for review with this case.  It remains unclear what the medical defect was.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 6, in effect at the time, provided for the separation of personnel because of genuine dependency or hardship.  An application for such separation will be approved when a service member can substantiate that his or her situation or immediate family's situation has been aggravated to an excessive degree since enlistment, that the conditions is not temporary, and that discharge will improve the situation.

15.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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 can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  This regulation also provides that 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 the Soldier is fit.

16.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Chapter 3 lists all medical conditions that render a member unfit for retention.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the VA Schedule of Rating Disabilities.

17.  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 rated at least 30 percent.  Section 1203 provides for the physical disability separation with severance pay of a member who has less than 20 years service and a disability rated at less than 30 percent.

18.  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 error or injustice in whether or not an Army rating is given, or in an Army rating that is given.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further 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.  Accordingly, it is not unusual for the two agencies of the government, operating under different policies, to arrive at different positions.  Furthermore, 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.  The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his 1974 discharge should be changed to a medical retirement.

2.  The purpose of the PDES is to maintain an effective and fit military organization with maximum use of available manpower, provide benefits for eligible Soldiers whose military service is terminated because of a service-connected disability, and provide prompt disability processing while ensuring that the rights and interests of the Army and the Soldier are protected.

3.  As such, a Soldier who suffers an injury or an illness while on active duty is retained in the service until he or she has attained maximum hospital benefits and completion of disability evaluation if otherwise eligible for referral into the disability system.  The applicant in this case served on active duty from 1961 to 1974 through multiple enlistments.  He served in a variety of stateside and/or overseas assignments and he was promoted to SSG/E-6.  He received outstanding/excellent ratings and in each rating period he was either recommended to continue in his current duty MOS or to be assigned in his current MOS at a higher organizational level.

4.  However, nowhere in his records does it show he suffered from an illness or an injury that rendered him unable to perform the duties of his MOS or grade.  He has not provided any evidence and the available record does not contain sufficient evidence to show that at any point during the separation process he was determined to be unfit for retention or discharge.

5.  The PDES provides that 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 be reasonably expected to perform because of his or her office, grade, rank, or rating.

6.  It must be presumed in the absence of evidence to the contrary that the applicant's administrative discharge was accomplished in accordance with the applicable regulations with no violations of his rights.  It must also be presumed in the absence of evidence to the contrary that at the time he underwent his separation physical that medical personnel properly determined his medical condition, if any, did not warrant consideration under the PDES and/or referral to an MEB/PEB.  Accordingly, it appears he was properly discharged under administrative procedures in accordance with the applicable regulations.

7.  Therefore, in the absence of evidence to show he was unfit for separation or that he could not perform the duties of his rank and MOS at the time of his discharge, there appears to be no basis to grant his request for medical retirement.

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 the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20100016665, dated 7 December 2010.



      __________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)                                         AR20110000530



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ABCMR Record of Proceedings (cont)                                         AR20110000530



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