BOARD DATE:	 28 October 2014 

		DOCKET NUMBER:  AR20140005732 


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 the narrative reason for separation from "Unsatisfactory Performance" to permanent disability retirement or something else as appropriate. 

2.  The applicant states:

	a.  The "Unsatisfactory Performance" was due to not passing the run part of the Army Physical Fitness Test (AFPT).  Neither a Medical Evaluation Board (MEB) nor a Physical Evaluation Board (PEB) was conducted.  Based on his medical records at the time, he had psoriasis.  No evaluation was conducted regarding arthritis.  Had this evaluation occurred clinical evidence would show symptoms related to psoriatic arthritis (pitting of all nails, deformed toe joints, etc.).  After he left the Army, he was clinically diagnosed with psoriatic arthritis which is a secondary condition of psoriasis.  Had a medical review been conducted this condition would have resulted in a permanent medical retirement instead of a discharge for unsatisfactory performance.  The rating at the time, using the Department of Veterans Affairs Schedule of Rating Decisions (VASRD), would have been 50 percent combined for both psoriasis (10 percent) and arthritis (40 percent) as evidenced by the VA rating granted then.  

	b.  Based solely on the arthritis the rating would have been 40 percent.  Since that time his VA disability has increased to 80 percent combined for both psoriasis (60 percent due to constant immunosuppressive drugs) and arthritis 
(40 percent).  Attached is a medical evaluation indicating psoriasis (DD Form 2697) for separation evaluation; but there was no further evaluation indicated. According to Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-38(w), psoriasis is a condition that should have been referred to an MEB.  Army Regulation 40-501, paragraph 3-40 (j)(3) would also have triggered an MEB.  Additionally, while in the Army his service was exemplary as evidenced by receiving five Army Achievement Medals, mostly while performing duties outside of his primary military occupational specialty (MOS).

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and the back page of a DD Form 2697.

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.  Having had prior service in the Regular Army (RA) and Army National Guard, the applicant enlisted in the RA on 1 March 1995.  He was trained in and held MOS 19K (M-1 Armor Crewmember).  He was assigned to 2nd Battalion, 35th Armor, Fort Carson, CO. 

3.  He was promoted to specialist/E-4.  He was awarded or authorized the Army Achievement Medal (5th Award), National Defense Service Medal, Army Service Ribbon, Overseas Service Ribbon, and Expert Marksmanship Qualification Badge with Rifle Bar.

4.  His records show he failed the APFT on 7 November 1995, 5 April 1996, 3 July 1996, and 12 September 1996.

5.  On 27 September 1996, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him for unsatisfactory performance under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13.  The immediate commander cited the applicant's APFT consecutive failures.  The immediate commander recommended the issuance of a general discharge.
6.  On 1 October 1996, the applicant acknowledged receipt of the commander's intent to separate him and consulted with legal counsel.  He was advised of the basis for the contemplated separation for unsatisfactory performance, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and the procedures and rights available to him.  He elected not to submit a statement in his behalf and further acknowledged he understood that:

* he might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him
* he would be ineligible to apply for enlistment in the U.S. Army for a period of 2 years after discharge
* he could apply to the Army Discharge Review Board (ADRB) or the ABCMR for an upgrade – however, an act of consideration did not mean his discharge would be upgraded

7.  On 2 October 1996, the applicant's immediate commander initiated separation action against him for unsatisfactory performance under the provisions of Army Regulation 635-200.  The immediate commander cited the applicant's APFT failures. 

8.  On 12 October 1996, subsequent to a legal review for legal sufficiency, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200 by reason of unsatisfactory performance and directed the issuance of a General Discharge Certificate.  Accordingly, the applicant was discharged on 18 October 1996.

9.  His DD Form 214 shows an incorrect entry date (29 December 1992) but correctly shows he was discharged under honorable conditions on 18 October 1996 under the provisions of Army Regulation 635-200, chapter 13.  He completed 1 year, 7 months, and 17 days of active duty during this period (his DD Form 214 incorrectly credited him with 3 years, 9 months, and 20 days of active service).  His DD Form 214 also shows in item 26 (Separation Code) the entry "JHJ."

10.  There is no indication he petitioned the ADRB for a review of his discharge within that board's 15-year statute of limitations.

11.  His service medical records are not available for review with this case.  As such, there is no indication in his records that he:



* was issued a permanent physical profile 
* suffered from a medical condition, physical or mental, that affected his ability to perform the duties required by his MOS and/or grade or rendered him unfit for military service
* was diagnosed with a medical condition that warranted his entry into the Army physical disability evaluation system (PDES)
* was diagnosed with a condition that failed retention standards and/or was unfitting

12.  He provides the back page of a DD Form 2697.  This form contains no name or identifying information of the person being examined.  The form is dated 18 July 1996 and is signed by an individual at the physical examination clinic, Evans Army Hospital.  It shows the entries "Psoriasis, chronic sprain right ankle, and borderline blood pressure." 

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance and provides that commanders will separate a member under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.

	b.  Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

14.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  The SPD code of "JHJ" is the correct code to be assigned to Soldiers separating under chapter 13 of Army Regulation 635-200 by reason of unsatisfactory performance. 

15.  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.  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

	b.  Soldiers are referred to the PDES:

* when they no longer meet medical retention standards in accordance with Army Regulation 40-501, chapter 3, as evidenced in a medical evaluation board
* receive a permanent medical profile, P3 or P4, and are referred by an MOS Medical Retention Board
* are command-referred for a fitness-for-duty medical examination
* are referred by the Commander, HRC

	c.  The PDES assessment process involves two distinct stages: the MEB and the 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. 




	d.  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.

16.  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.  Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.  

17.  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 VASRD.  

18.  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.

19.  The VASRD is used by the Army and the VA as part of the process of adjudicating disability claims. It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation. 

20.  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 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 VA does not have the 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.  These two government agencies operate under different policies.  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:

The applicant served in the RA during this period of service from 1 March 1995 through 18 October 1996.  The evidence of record shows the applicant displayed a pattern of unsatisfactory performance as evidenced by his consecutive APFT failures.  Accordingly, his immediate commander initiated separation action against him.

	a.  His administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

	b.  His narrative reason for separation was assigned based on the fact that he was discharged under the provisions of chapter 13 of Army Regulation 635-200 due to unsatisfactory performance.  Absent his APFT failures, there was no fundamental reason to process him for discharge.  The underlying reason for his discharge was his unsatisfactory performance (APFT failures).  The only valid narrative reason for separation permitted under this paragraph is "Unsatisfactory Performance" which is properly shown on his DD Form 214. 

	c.  All of the applicant's medical records during this period of active duty service are not available for review with this case.  However, he provides one document showing an individual was seen on 18 July 1996 at the physical examination clinic, Evans Army Hospital, and the entries "Psoriasis, chronic sprain right ankle, and borderline blood pressure."

	d.  A key element of the Army PDES is the Soldier's condition at the time of discharge.  It is not intended to be a prediction of future medical ailments.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier's discharge and can only be accomplished through the PDES. Referral to an MEB is warranted if there is a medical diagnosis of a disabling condition.  


	e.  There is no evidence to show the applicant had a permanent physical profile, a diagnosis of a disabling condition that rendered him unable to perform the duties required of his MOS or grade, or a medical examination that warranted his entry in the PDES.  Referral to the Army PDES requires that a designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition.  At the time of the applicant's discharge, there is no evidence of an unfitting condition.  Therefore, entry into the PDES was not warranted. 

	f.  Although he did not provide his VA rating decision, it is noted that the Army and the VA disability evaluation systems are independent of one another.  A diagnosis of a medical condition and/or a subsequent award of a rating by another agency 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 a medical condition is related to service (service connected) and affects the individual's civilian employability.  The VA has the responsibility and jurisdiction to recognize any changes in a condition over time by adjusting a disability rating.

	g.  After a comprehensive review of his records, the applicant makes an argument regarding alleged disabilities and ratings for conditions that never existed nor are they supported with sufficient evidence.  There does not appear to be an error or an injustice in his case.  In view of the circumstances in this case, there is insufficient evidence to grant 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 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)                                         AR20140005732



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ABCMR Record of Proceedings (cont)                                         AR20140005732



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