IN THE CASE OF:	  

		BOARD DATE:	  18 June 2014

		DOCKET NUMBER:  AR20130017543 


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, correction of his records to show he was retired from active duty based on permanent disability.

2.  The applicant states he was discharged for failing to meet the standards of the Army Weight Control Program (AWCP).  However, his medical records show that he sought medical treatment for severe pack pain in 1981 and 1984.

   a.  He was diagnosed with a broken vertebrae and Scheuermann's disease [a condition in which the normal round back in the upper spine is increased].  His conditions were left untreated and he was returned to duty.  The untreated medical conditions caused him a great deal of pain, further damaged his body, and contributed to his struggles in maintaining his body fat standards.

   b.  He states that, despite his medical conditions, he was a good Soldier and an outstanding noncommissioned officer (NCO).  He held a top secret security clearance and served in a master sergeant/pay grade E-8 position in the 
587th Signal Company.  He provided communication services directly to Headquarters, U.S. Army European Command, Command Battle Staff, and he served in numerous positions of increasing responsibilities with many additional duties.  In addition, he was the honor graduate and class leader of his Basic NCO Course, an excellent student, and exemplary leader.  He had aspirations of becoming the first Command Sergeant Major of the Army from the Signal Corps.

   c.  The Department of Veterans Affairs (VA) awarded him a total disability rating of 40% for his back injury and COPD [chronic obstructive pulmonary disease:  a lung disease that makes it hard to breathe].

   d.  He states that he should be reinstated to active duty in his former rank of staff sergeant (SSG)/pay grade E-6 with full pay, allowances, and benefits.  At the time of his discharge, he was being considered for promotion by the sergeant first class/pay grade E-7 promotion board.  He received notification that he was selected for promotion and this should also be taken into consideration when determining his fitness for service.  He adds that he is willing to return to duty to continue to serve his country, if he is physically able; however, his spine and lung conditions have left him unable to do so.

3.  The applicant provides a copy of a Standard Form (SF) 513 (Medical Record).

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 enlisted in the Regular Army (RA) on 3 January 1980.  He was awarded military occupational specialty 31C (Single Channel Radio Operator). Through a series of reenlistments in the RA, he continued to serve on active duty attaining the rank of SSG (E-6) effective1 May 1987 with a date of rank of 
4 April 1987.

3.  On 23 July and 27 July 1990, the applicant's commander notified him of his intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 5 (Separation for the Convenience of the Government), paragraph 5-15, failure to meet the Army weight control standards of Army Regulation 600-9 (The AWCP).


4.  On 27 July 1990, the applicant acknowledged receipt of the separation memorandum.  He consulted with legal counsel and was advised of the basis for the contemplated separation action and its effect, of the rights available to him and the effect of any action taken by him in waiving his rights, and the type of discharge and its effect on further enlistment or reenlistment.  The applicant waived all his rights. 

5.  On 27 July 1990, the commander recommended the applicant be separated under the provisions of Army Regulation 635-200, paragraph 5-15.

   a.  The reasons for his recommended action were the applicant was removed from the AWCP more than 12 months, but less than 36 months, prior to the recommended action; he was reentered into the AWCP on 19 April 1990; and,
90 days after reentry into the AWCP he continued to exceed the screening table weight and body fat content standard.

   b.  The commander noted that the applicant had undergone a medical examination and there was no other medical information meriting consideration in the overall evaluation to separate the applicant.

6.  On 1 August 1990, the separation authority approved the separation action and directed the issuance of an Honorable Discharge Certificate.

7.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant was honorably discharged on 24 August 1990 under the provisions of Army Regulation 635-200, chapter 5.  He had completed 3 years and 13 days of net active service during this period; 7 years, 7 months, and 9 days of total prior active service; and 1 month and 4 days of total prior inactive service.

8.  On 25 February 2011, the applicant requested correction of his records to show he retired from active duty under the temporary early retirement authority. On 1 September 2011, the ABCMR denied his request.

9.  A review of the applicant's military records failed to reveal any evidence that he was found unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.

10.  In support of his application the applicant provides an SF 513 that shows in the consultation report that the examining medical official noted, "Lower back pain (lumbar) for approximately 4 weeks - probably due to heavy lifting at work (radios, etc.).  No prior problem.  Pain is L.S. 5 [Lumbar Spine Vertebrae 5] radicula component.  Exam is normal and X-ray consistent with Scheuermann's which is of no [emphasis in original] significance.  He has a [undecipherable] lumbar strain due to lifting.  Suggest:  (1) Motrin, (2) Physical Therapy, (3) Profile, as needed."

11.  Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel.  Paragraph 5-15, in effect at the time, provided the policy for separating members who failed to meet the Army body composition/weight control standards if this condition was the only reason for separation and there was no underlying medical condition which precluded them from participating in the AWCP.  Members separated under this provision of the regulation received an honorable discharge.

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) sets forth policies, responsibilities, and procedures in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  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 in such a way as to reasonably fulfill the purposes of his/her employment on active duty.

13.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has impairment rated at less than 30 percent disabling.  It further provides, at section 1201, for the physical disability retirement of a member who has impairment rated at least 30 percent disabling.

14.  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 on the part of the Army.  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 disability ratings based on the same impairments.  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 (and some other government agencies) 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 that his records should be corrected to show he was retired from active duty based on permanent disability.

2.  The applicant's discharge under the provisions of Army Regulation 635-200, chapter 5, paragraph 5-15, for failure to meet the weight control standards of the AWCP was administratively correct and in compliance with applicable regulations in effect at the time with no indication of procedural errors which would have jeopardized his rights.  Considering all the facts of this case, the reason for his separation and type of discharge were appropriate and equitable.

3.  There is no evidence of record that shows the applicant was diagnosed with any medical conditions that were medically unfitting for retention in accordance with Army Regulation 40-501 (Standards of Medical Fitness).  In fact, at the time of his separation processing, his commander confirmed that the applicant had undergone a medical examination and there was no other medical information meriting consideration in the overall evaluation to separate the applicant for failure to meet the weight control standards of the AWCP.  Therefore, the applicant is not entitled to correction of his records to show he was medically retired with a permanent disability rating of 30 percent (or more).

4.  Both statutory and regulatory guidance provide that the Army rates only conditions determined to be physically unfitting that were incurred or aggravated during the period of service.  Furthermore, the condition can only be rated to the extent that the condition limits the performance of duty.  The VA (and some other Government agencies) on the other hand, provides compensation for disabilities which it determines were incurred in or aggravated by active military service, including those that are detected after discharge, and which impair the individual's industrial or social functioning.  However, the fact that the VA may rate a veteran for disabilities does not call into question the applicant's fitness for duty while serving in military service.

5.  In view of all of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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 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)                                         AR20130017543



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130017543



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1