IN THE CASE OF

		BOARD DATE:      5 August 2014

		DOCKET NUMBER:  AR20130019891


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 her DD Form 214 (Report of Separation from Active Duty), for the period ending 1 April 1978, to show she was retired by reason of medical disability.

2.  The applicant states:

* she was honorably discharged; however, she should have been medically retired
* she was released from active duty with a serious, ongoing medical disease caused by medical malpractice and negligence
* her blood issues began in 1977, when she was hospitalized with various conditions, including complications resulting from an effortil pregnancy, toxemia, and an ongoing esophageal stricture – these conditions correspond with the beginning of the decline in her overall health
* the decline in her overall health was brought about by medical negligence, in that her military doctors failed to notify the Department of Veterans Affairs (VA) about her various medical conditions, so that she could be properly treated following her separation 

3.  The applicant provides:

* VA Form 21-4138 (Statement in Support of Claim), dated 10 July 2013
* a 7-page internet article on Gastroesophageal Reflux Disease (GRD)
* multiple pages of Veterans Integrated System Technology Architecture (VISTA) Electronic Medical Documentation, from the San Diego Healthcare System, printed on 16 October 2013
* multiple pages of additional medical documentation from the San Diego Healthcare System
* VA Form 10-5345a (Individuals' Request for a Copy of Their Own Health Information), dated 3 January 2014
* multiple pages of additional medical documentation from the Tennessee Valley Healthcare System
* multiple pages of hand-written notes

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.  On 7 July 1970, the applicant enlisted in the Regular Army.  On 6 December 1973, she was honorably discharged from the Army at the expiration of her term of service.  Her DD Form 214 shows she completed 3 years and 5 months of active service during this period of enlistment.

3.  On 2 April 1975, she reenlisted in the Regular Army.  

4.  Orders 31-2, issued by the U.S. Army Transportation Center and Fort Eustis on 14 February 1978, honorably discharged her from the Regular Army, effective 1 April 1978.

5.  Her record contains a DD Form 4 (Enlistment or Reenlistment Agreement – Armed Forces of the United States) that shows she enlisted in the U.S. Army Reserve (USAR), effective 31 March 1978.

6.  On 1 April 1978, she was honorably discharged from the Army at the expiration of her term of service.  Her DD Form 214 shows she completed           3 years and 5 months of active service during this period of enlistment.
7.  Orders D-12-089547, issued by the USAR Personnel Center (ARPERCEN), St. Louis, MO on 2 December 1987, discharged her from the USAR, effective     2 December 1987.

8.  Her available medical records are void of documentation that shows:

* she suffered and/or was diagnosed with an illness or an injury that rendered her unable to perform the duties required of her former grade or military specialty
* she was medically unqualified for separation in either 1973 or 1978
* she suffered from any injury or illness that would have warranted her entry into the Physical Disability Evaluation System (PDES)

9.  She provides:

   a. A 7-page internet article on GRD, which she believes supports her contention that her medical issues began in 1977.  This article is informative in nature, focusing on the signs and symptoms, diagnosis and management of GRD.  Neither she nor her medical issues are addressed in this article.   

   b. Multiple pages of VISTA Electronic Medical Documentation and other medical documentation from the San Diego Healthcare System, which detail various medical issues she is currently suffering from.

   c. Multiple pages of additional medical documentation from the Tennessee Valley Healthcare System, which detail various medical issues she is currently suffering from.

d. Multiple pages of hand-written notes.

10.  Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability.  The U.S. Army Physical Disability Agency, under the operational control of the Commander, U.S. Army Human Resources Command (HRC), is responsible for administering the PDES and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).

	a.  Army Regulation 635-40 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 office, grade, rank, or rating.

	b.  The objectives of the system are 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 service-connected disability
* provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected

	c.  Soldiers are referred to the PDES when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in a medical evaluation board, when they receive a permanent medical profile, P3 or P4, and are referred by an MOS Medical Retention Board, or when they are command-referred for a fitness-for-duty medical examination.

	d.  The PDES assessment process involves two distinct stages: the medical evaluation board (MEB) and the physical evaluation board (PEB).  The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service.  A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty.  A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition.  Service members who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired, depending on the severity of the disability and length of military service.  Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retirement payments and have access to all other benefits afforded to military retirees.

	e.  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 reasonably be expected to perform because of his or her office, grade, rank, or rating.  Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty.  A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating.

11.  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 of Rating Disabilities.  Ratings can range from 0 percent to 100 percent, rising in increments of 10 percent.

12.  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.

13.  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 an error or injustice on the part of the Army.  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.  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 her honorable discharge should be changed to a medical discharge.  

2.  There is no evidence in her records, and she did not provide any evidence, which shows she suffered from any illness or an injury (at the time of her discharge) that rendered her unable to perform the duties required of her grade and military specialty, or that would have warranted her entry into the PDES. 

3.  In fact, her continued service in the USAR, for nearly 10 years following her discharge from the Regular Army, is further evidence of her physical fitness at the time.  

4.  Therefore, in view of the foregoing, there is an insufficient basis to grant her the requested relief 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 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)                                         AR20100009160



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ABCMR Record of Proceedings (cont)                                         AR20130019891



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