IN THE CASE OF:
BOARD DATE: 8 November 2011
DOCKET NUMBER: AR20110008543
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 for correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show the disability for which he was discharged did not exist prior to service (EPTS) or that it was aggravated by military service.
2. The applicant states he provides new evidence to show the physical evaluation board (PEB) made an error in its ruling to not support the medical evaluation board (MEB) recommendations. The MEB finding that the onset date of his condition was August 1990 and the condition had been incurred while he was entitled to base pay and was not EPTS should have been upheld by the PEB.
3. The applicant provides a self-authored statement and the following three exhibits in support of his request:
* DA Form 199 (PEB Proceedings)
* DA Form 3947 (MEB Proceedings)
* Army National Guard Retirement Credits Record
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 AR20100017143 on 3 February 2011.
2. During its original review of the case the Board found the evidence of record showed the applicant's Physical Disability Evaluation System (PDES) processing was accomplished in accordance with the applicable law and regulation. It concluded there was no evidence contradicting the PEB's finding that the applicant's scleroderma condition was EPTS. It further determined that given that the cause of his condition (scleroderma) is unknown, the onset of his symptoms cannot be attributed to military service. The fact the applicant reported symptoms while performing active duty for training could only be considered coincidental. The Board further found no evidence indicating the applicant suffered any service-connected aggravation. The Board informed the applicant the statutory language governing veterans' benefits under the purview of the Department of Veterans Affairs (VA) he quoted as a basis to provide the requested relief applied to VA decisions and were not applicable to his Army separation for disability.
3. The applicant provides three exhibits as new evidence that were, in fact, available to the Board during its original review and restates an argument as new that was also made and evaluated during the original review of the case by the Board.
4. The applicant initially served in the Regular Army from 11 August 1981 through 9 August 1985. He enlisted in the Army National Guard on 27 February 1986. He was mobilized in support of Operation Desert Shield on 30 November 1990.
5. The applicant's record shows that after being referred to the PEB by an MEB, the applicant underwent an informal PEB on 14 June 1991. The PEB determined the applicant's scleroderma was a condition that was EPTS. The PEB stated the applicant was activated for Operation Desert Shield in November 1990 after the onset of symptoms in August 1990.
6. After the applicant did not concur with the findings and recommendation of the informal PEB, he and his counsel appeared before a formal PEB on 13 August 1991. The formal PEB also found the applicant unfit for scleroderma and determined the condition EPTS. The formal PEB recommended no disability rating and separation from the service without disability benefits. The applicant concurred with the PEB findings and recommendations on 22 August 1991 and was honorably discharged by reason of physical disability without severance pay on 16 September 1991.
7. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army PDES. It states Soldiers who are unfit by reason of physical disability neither incurred nor aggravated during any period of service while entitled to basic pay or as the proximate result of performing active duty or inactive duty training, but which effects duty performance, will be separated for physical disability without entitlement to benefits.
DISCUSSION AND CONCLUSIONS:
1. The applicant's request for reconsideration has been carefully considered. Although he claims to be submitting new evidence and a new argument, the applicant restates the previous argument and provides exhibits that were, in fact, available to and considered by the Board during its original review.
2. The evidence of record confirms the applicant was properly processed through the Army PDES. There is no evidence to show the applicants sclerodema was incurred while he was entitled to basic pay. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. There is no new evidence or new argument that would support granting the requested relief or amendment of the original decision in this case.
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 AR20100017143, dated 3 February 2011.
____________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) AR20110008543
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