IN THE CASE OF:    

		BOARD DATE:  15 January 2015	  

		DOCKET NUMBER:  AR20140009668 


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 reconsideration of his previous request for correction of his records to show he received a medical discharge in January 1953. 

2.  The applicant states:

	a.  A couple of years after his discharge in January 1953, he called the local Army board about his blindness in the left eye.  They said he should have reported it while he was being processed for discharge.  He is older and wiser now.  It did not occur to him then that since he lost his vision in the performance of his Army duties and he was being discharged, his injury was never properly documented by the Army.  He was traumatized by his vision loss and he did not fully understand the importance and consequences by not following up sooner. 

	b.  It is clear that the Army would not have drafted him if he was already half blind.  It is equally clear that he would not have been discharged some 9 months ahead of his scheduled separation date.  Unfortunately, the fire of 1973 destroyed the proof of his record.  It remains a mystery of why he did not receive a medical discharge.  The Department of Veterans Affairs (VA) awarded him service-connected disability for his left eye. 

3.  The applicant provides his VA rating decision, dated 20 April 2010. 




CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20130012252, dated 26 March 2014.

2.  The applicant provided his VA rating decision.  This is considered new evidence and warrants consideration by the Board. 

3.  The applicant's military records are not available to the Board for review.  A fire destroyed approximately 18 million service members' records at the National Personnel Records Center in 1973.  It is believed his records were lost or destroyed in that fire.  However, there were sufficient documents available for the Board to conduct a fair and impartial review of this case.  

4.  The applicant's DD Form 214 (Report of Separation from the Armed Forces of the United States) is not available.  However, his reconstructed records contain a National Archives Form 13038 that shows he served on active duty from 11 November 1951 through 28 January 1953.

5.  His reconstructed record also contains a DD Form 217A (Certificate of Service-Armed Forces of the United States) that shows he served on active duty from 5 November 1951 to 28 January 1953. 

6.  His DA Form 493 (Separation Qualification Record) shows he was trained as a clerk typist for 8 weeks at Fort Dix, NJ, and he served as a clerk typist and later as a personnel administrative specialist in the rank of private first class.  This form also shows that upon his separation he was transferred to the U.S. Army Reserve (USAR) for a period of 5 years.

7.  The applicant's medical records are not available for review.  Nothing in the available evidence shows:

* he was issued a permanent physical profile that rendered him unable to perform the duties required of his grade and military occupational specialty (MOS)
* 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)

8.  He provides a VA rating, dated 20 April 2010, that shows the VA awarded him service-connected disability compensation for blindness of the left eye.
9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System 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.  Paragraph 3-1 provides that the mere presence of 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 may reasonably 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 he or she can be medically retired or separated.

10.  Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, provides the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required for the individuals.  These medical conditions and physical defects, individually or in combination, are those that significantly limit or interfere with the Soldier's performance of his or her duties, may compromise or aggravate the Soldier's health or well-being if they were to remain in the military service (this may involve dependence on certain medications, appliances, severe dietary restrictions, or frequent special treatments, or a requirement for frequent clinical monitoring), may compromise the health or well-being of other Soldiers, and/or may prejudice the best interests of the government if the individual were to remain in the military service.

11.  Army Regulation 15-185, the regulation under which this Board operates, states the ABCMR begins its consideration of each case with the presumption of administrative regularity and that the applicant has the burden of proving an error or injustice by a preponderance of the evidence.

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, 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 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.  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 entered active duty on 5 or 11 November 1951 and he was honorably separated from active duty on 28 January 1953.  His service records are not available.  There is no evidence in his reconstructed records and he did not provide any substantiating evidence that shows he was medically disqualified for retention or separation.  The available evidence does not 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

2.  But even if he had suffered an injury or an illness, it is unclear what caused this injury or whether if was incurred in line of duty.  Moreover, even if it had been in line of duty, the mere presence of 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.

3.  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.

4.  This Board is not an investigative agency.  The burden of proof remains with the applicant.  There is no evidence in his reconstructed records and he provides none to support his contention that 60 years ago he was physically or mentally unfit at the time of his discharge.  A Soldier is considered unfit when the evidence establishes that the Soldier is unable to reasonably perform the duties of his or her office, grade, rank, or rating.  In the applicant's case, his separation physical is not available.

5.  Therefore, in the absence of evidence to the contrary, it reasonable to presume that the applicant was properly and equitably discharged in accordance with the regulations in effect at that time.  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 to amend the decision of the ABCMR set forth in Docket Number AR20130012252, on 26 March 2014.



      ___________  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)                                         AR20140009668



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ABCMR Record of Proceedings (cont)                                         AR20140009668



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