IN THE CASE OF:	  

		BOARD DATE:	  18 November 2014

		DOCKET NUMBER:  AR20140006733 


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 as follows: 

* show he was medically retired by reason of disability in March 1979 with entitlement to back pay 
* his pay grade/rank as private first class (PFC)/E-3

2.  He also requests the Department of Veterans Affairs (VA) award him service-connected disability compensation.  

3.  The applicant states:

* he received an honorable discharge on 18 March 1979, but he thinks he should have received a military disability retirement with pay
* he believes he was issued a false physical profile on 26 January 1979 and his profile was not based on his actual condition at the time
* the physician used deception and his (the applicant's) state of mind to get him to incorrectly relate his medical condition 
* he was assigned a physical profile of "1-1-1-1-1-1" which he believes was fabricated by the Army and the physician; he did not undergo a psychological evaluation or a hearing test
* he was substantially prejudiced by the Army's failure to follow proper regulations and laws
* he was never informed of his true medical condition or psychological condition or his right to request a medical discharge or retirement for disability
* he believes he is entitled to service-connection and disability for the following conditions/at the rates of:

* Pneumonia, right lower lobe, 50 percent
* Heloma durum, right fifth toe, 20 percent
* Arthroplasty, proximal interphalangeal joint, 10 to 30 percent 
* Osteoarthritis, permanent moderate pain, 60 percent
* Gastroenteritis, 40 to 60 percent
* Photothalmia, left eye, permanent, 30 to 40 percent
* Anxiety Disorder, mild to moderate, 30 to 40 percent
* Psuedofolliculitis, permanent, 10 percent
* Papulosis, moderate, permanent, 20 percent
* Foot pain, moderate pain on movement, 10 percent
* Vision loss, 40 percent
* Back pain, moderate to severe,  50 to 60 percent
* Headaches/migraines, 70 to 90 percent
* Disseminated Encephalopathic myelitis; permanent, preventive medicine reaction, excessive immunizations, degenerative disease, 100 percent 

4.  The applicant provides his service medical records. 

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 27 January 1976.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 91B (Medical Specialist).  He was advanced to the rank of private (PV2)/E-2 on 27 May 1976. 


3.  Following completion of training, he was assigned to the 437th Medical Company (Field Ambulance), Fort Jackson, SC.  While at Fort Jackson, he was frequently counseled by members of his chain of command for various infractions, including: 

* failing to go to his appointed place of duty at the time prescribed
* disobeying lawful orders
* insubordination 
* refusal to help other Soldiers perform daily barracks detail
* failing to accomplish his assigned duties
* using a military vehicle without permission and for personal use
* unacceptable behavior 

4.  On 3 September 1976, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for violating a general regulation by using a military ambulance for personal use.  His punishment consisted of a reduction in rank from PV2/E-2 to PVT/E-1 suspended, a forfeiture of $50.00 pay for 2 months, and restriction for 30 days.  He elected not to appeal his punishment.

5.  On 13 September 1976, as a result of misconduct, the suspension of punishment imposed on 3 September 1976 was ordered vacated and the applicant was reduced to pay grade E-1. 

6.  On 21 September 1976, he accepted NJP under the provisions of Article 15 of the UCMJ for wrongfully possessing a .22 caliber pistol in his room and for stealing several medical items (bottle of Ringers Lactate, intravenous injection set with flexible drip chamber with 20 gauge needle, and one box containing 75 tubes of lipstick anti-chap, property of the United States Government).  His punishment consisted of a forfeiture of $75.00 pay and 30 days of restriction.  He elected not to appeal his punishment.

7.  On 24 January 1977, he accepted NJP under the provisions of Article 15 of the UCMJ for violating a general regulation by operating a motor vehicle at excessive speed, wrongfully appropriating a military ambulance, and failing to go at the time prescribed to his appointed place of duty on four separate occasions. 

8.  On 26 May 1977, as a result of his continued misconduct, he was counseled by his battalion commander regarding his behavior in connection with receiving four Article 15s and eight Memoranda for Record for misconduct.  The commander stated that continued behavior of this nature could result in elimination from the Army due to unfitness or unsuitability.  However, at this time the commander elected to initiate a Bar to Reenlistment Certificate.
9.  On 26 May 1977, the applicant's immediate commander initiated a Bar to Reenlistment Certificate against him citing his continued misconduct.  The applicant was provided a copy of this bar and he elected not to submit a statement on his own behalf.  The approving authority ultimately approved the bar. 

10.  On 5 June 1978 and 7 December 1978, the reenlistment approval authority reviewed the applicant's bar and ordered the bar to remain in effect.  He counseled the applicant. 

11.  On 5 January 1979, he was placed in confinement by the Military Police Detachment Cells at Fort Jackson.  Shortly prior to that, he underwent a separation physical that found him fully qualified for separation.  The Standard Form 88 (Report of Medical Examination) shows he underwent a hearing test and his overall physical profile was "1-1-1-1-1-1" indicating he was medically qualified.  

12.  He was released from confinement at Fort Jackson on 7 January 1979.  He was then transferred to the 5th Unit, 3rd Battalion, U.S. Army Retraining Brigade, Fort Riley, KS where he was confined until 7 March 1979. 

13.  On 27 February 1979, he was issued a temporary physical profile for a moderate psuedofolliculitis (shaving bumps).  The profile stated the applicant was medically qualified for duty with limitations. 

14.  On 28 March 1979, he signed a statement indicating he underwent a medical examination in conjunction with his separation and that to the best of his knowledge there had been no change in his medical condition. 

15.  He was honorably released from active duty on 28 March 1979.  His
DD Form 214 (Report of Separation from Active Duty) shows he was separated under the provisions of chapter 2 of Army Regulation 635-200 (Enlisted Personnel Separations).  He completed 3 years of active service and he had 61 days of lost time.  Additionally, he was ineligible to reenlist (without a waiver). 

16.  He provides multiple chronological records of medical care as well as his immunization and dental records.  These records show he was seen on various occasions for routine medical checks related to his vision, medication refill, fifth toe, pain in the leg (caused by playing a lot of basketball), pain in the left hand, a 



rash and chiggers, pneumonia, shoulder injury, and other routine maladies.  However, nowhere in his records does it show he was:

* issued a permanent physical profile
* diagnosed with a physical or mental condition that failed retention standards or rendered him unfit to perform the duties required of his grade and military specialty
* diagnosed with a condition that warranted his entry into the physical disability system

17.  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 Physical Disability Evaluation System (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 (Standards of Medical Fitness), 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 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. 

	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.

18.  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.

19.  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.

20.  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 on the part of the Army.  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.  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 served on active duty from 27 January 1976 to 28 March 1979. He lists 15 specific physical or behavioral health conditions that he believes made him medically unfit for military service.  

2.  The applicant appears to believe that since he has service medical forms that mention each condition, the Army should have found him disabled due to each condition.  His argument is rejected on many levels: 

	a.  First, there is nothing in the records he provided that indicates he suffered from a condition that demonstrated he was unable to reasonably perform the duties required of his grade and military specialty, or rendered him medically unfit, and/or warranted his entry into the PDES.  A comprehensive review of his records together with the evidence he provided does not support a finding of unfitness.  

	b.  Second, his records are void of a permanent physical profile.  He provided a temporary shaving physical profile that clearly shows he was medically qualified for duty with limitations.  In fact, his separation physical clearly shows he was medically qualified for separation.  Nothing he provides supports his contention that this separation physical was fabricated.

	c.  More importantly, however, even if he had been issued a permanent physical profile, that does not translate to automatic consideration by an MEB.  The key element in the disability system is the presence of a medical condition that renders a Soldier unable to reasonably perform the duties required of his or her grade and military specialty.  The applicant did not provide evidence that he was unable to perform the duties required of his grade and military specialty.

	d.  Third, disability compensation is not an entitlement acquired by reason of a service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  The applicant's service was not interrupted by a physical condition or medical necessity.  It was interrupted by the conclusion of his contractual obligation.  

	e.  Fourth, when a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duties commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement creates a presumption that the Soldier is fit.  The presumption of fitness may be overcome if the evidence establishes that the Soldier was, in fact, physically unable to adequately perform the duties of his or her office, grade, rank, or rating for a period of time because of disability.  There must be a causative relationship between the less than adequate duty performance and the unfitting medical condition or conditions, or an acute, grave illness or injury or other significant deterioration of the Soldier's physical condition that occurred immediately prior to or coincident with processing for separation or retirement for reasons other than physical disability and which rendered the Soldier unfit for further duty.  

	f.  Fifth, if and when identified, diagnosed, evaluated, and rated, 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.  Only those conditions that render a member unfit for continued military duty at the time of separation will be rated.  In the applicant's case, there was not a single condition actively limiting his ability to perform his military duties.  There was no diagnosis of any conditions that failed retention standards or were disabling at the time of his separation.  Whenever there is a disability, 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.  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.

	g.  The applicant does not provide sufficient evidence and his records do not contain any evidence to support his contention for a medical retirement. 

2.  The applicant was advanced to PV2 on 27 May 1976.  He then accepted NJP under Article 15, UCMJ.  This NJP resulted in a suspended reduction to the lowest enlisted grade.  The suspended reduction was later vacated as a result of his misconduct.  That is why his DD Form 214 reflects the rank/grade of PV1/E-1. He was never promoted to PFC/E-3 during his military career and he was not advanced to PV2/E-2 from the time he was reduced to the time he was separated.  Therefore, he is not entitled to the rank/grade he requests. 

3.  The Army and the VA systems are independent of one another.  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.  Likewise, this Board has no authority when it comes to VA service-connected disability compensation.  The applicant should address this issue with the VA. 

4.  There does not appear to be an error or an injustice in his case.  He has submitted insufficiently substantiating evidence or an argument that would show an error or injustice occurred in his case.  In view of the foregoing, he is not entitled to any of 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)                                         AR20140006733



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ABCMR Record of Proceedings (cont)                                         AR20140006733



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