IN THE CASE OF:	  

		BOARD DATE:	  6 March 2012

		DOCKET NUMBER:  AR20110017594 


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 through his Member of Congress to show he was medically discharged or medically retired instead of honorably discharged.

2.  The applicant states:

* he was hospitalized at Fort Leonard Wood, MO, in 1966 with spinal meningitis
* the doctors thought he would die, but he recovered and he was sent back to light duty
* his commanding officer refused spinal meningitis as being incurred in the line of duty and sent him back to basic training
* he also permanently hurt his back and suffered back and neck injuries throughout his military career
* he should have been medically retired in 1966 and not sent back to basic training
* his commander should have listened to the doctors

3.  The applicant provides no additional evidence.

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 on 10 February 1966.  He completed basic combat training at Fort Leonard Wood and advanced individual training at Fort Benjamin Harrison, IN.  He was awarded military occupational specialty (MOS) 71H (Personnel Specialist).

3.  Subsequent to completing MOS training, he was reassigned to Fort Sheridan, IL.  He then served in Vietnam from August 1967 to November 1968.  While in Vietnam, he received dental treatment intermittently between February and September 1969.

4.  His records show he underwent a medical examination in October 1969 and he stated he was injured in Vietnam when a sandbag fell on his lip and jaw causing the removal of three teeth.

5.  He underwent a separation medical examination at Fort Sam Houston, TX, on 15 January 1970 and he indicated there had been no change in his medical condition.

6.  He was honorably released from active duty in the rank/grade of specialist five (SP5)/E-5 on 16 January 1970 and he was transferred to the U.S. Army Reserve Control Group (Reinforcement) to complete his remaining service obligation.

7.  After a short break in service, he again enlisted in the Regular Army in the rank/grade of SP5/E-5 on 5 February 1971 and he held MOS 71L (Administrative Specialist).  He served in Germany from September 1971 to April 1973.

8.  His records contain various DA Forms 2166-4 (Enlisted Efficiency Report (EER)).

	a.  His EER for the period February 1971 through July 1971 shows he received outstanding or excellent performance ratings with a recommendation for promotion ahead of contemporaries.  He was recommended to continue in his current duty MOS.

	b.  His EER for the period May 1972 through January 1973 shows he received above average or excellent performance ratings and a recommendation for promotion.  He was recommended to continue in his current duty MOS.  His rater commented, "[Applicant] performed the duties assigned him in a manner that I would not hesitate to give him any assignment or task within the scope of his MOS."

	c.  His EER for the period November 1972 through November 1973 shows he received above average or excellent performance ratings and a recommendation for promotion with contemporaries.  His rater commented, "[Applicant's] performance of duty as a company clerk is excellent."

9.  On 18 January 1973, he received a certificate of appreciation from the post commander for outstanding administration and coordination in his work.  The post commander commented, "I am positive that wherever [Applicant] goes in his career, his new commanders will be equally impressed with his work."

10.  He was issued a DA Form 1811 (Physical and Mental Status on Release from Active Service) on 27 March 1974.  This form indicates he was considered physically qualified for separation or reenlistment without re-examination on that date.  His physical profile was listed as "1-1-1-1-1-1-1" [no medical limitations] and his physical category code was listed as "A" [no medical disqualifications].

11.  He was honorably discharged on 27 March 1974 by reason of completion of his required service.

12.  Subsequent to his discharge from active service, he filed several Department of Veterans Affairs (VA) compensation claims and underwent various psychiatric and/or physical examinations.  The VA awarded him service-connected disability compensation for a long history of chronic paranoid schizophrenia.  He subsequently corresponded with the VA over the years and he appears to be receiving 100-percent service-connected disability compensation.

13.  There is no indication in his military records that shows:

* he was issued a permanent physical profile
* he suffered an illness or an injury that rendered him unable to perform the duties required of his grade or MOS
* he was referred to the Army Physical Disability Evaluation System (PDES)

14.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) currently in effect establishes the Army 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 medical evaluation boards, 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 prescribed in Army Regulation 40-501 (Standards of Medical Fitness).

15.  Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement).

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 of 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, permits 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 an 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 he should have been medically discharged.

2.  The applicant completed two periods of active service.  He first served on active duty from February 1966 to June 1970.  Prior to his release from this period of active duty, he underwent a separation physical and he was found fully qualified for separation.  In fact, he stated there had been no change to his medical condition.  This is further evidenced by the fact that he was fully qualified to reenter active service when he enlisted in February 1971.

3.  He completed a second period of active service from February 1971 to March 1974.  During this period, he completed nearly 18 months of foreign service in Germany, received multiple EER's that commented on his above average or outstanding performance, and received a certificate commending him on his performance of his duties.

4.  He underwent a separation physical for this period of service and he was found medically qualified for separation or reenlistment.  There is no evidence in his records and he did not provide any substantiating evidence that shows he was medically disqualified for retention or separation.  Nowhere in his records does it show he:

* was issued a permanent physical profile
* suffered an illness or an injury that rendered him unable to perform the duties required of his grade or MOS
* was referred to the Army PDES

5.  Even if he suffered an injury or an illness, 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 member reasonably may be expected to perform because of his or her office, rank, grade, or rating.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before that service member can be medically separated or retired.

6.  Furthermore, an award of a rating by another agency – the VA in this case –does not establish an error by the Army.  Operating under different laws and its own policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service.  The VA may award ratings because of a medical condition related to service (service connected) that affects the individual's civilian employability.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and can only be accomplished through the PDES.

7.  In view of the foregoing evidence, he is not entitled to the requested 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 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)                                         AR20110017594



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110017594



6


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1