IN THE CASE OF:	  

		BOARD DATE:	  9 April 2015

		DOCKET NUMBER:  AR20140013790 


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 that he was medically discharged.

2.  The applicant states that while he was serving on active duty he was issued permanent physical profiles for his back and hearing loss.  He did not receive a separation medical examination prior to release from active duty (REFRAD) on
4 September 1970.

   a.  One month after he was REFRAD, he went to a Department of Veterans Affairs (VA) hospital and was granted service-connection for his conditions. About 5 years later, the VA increased the disability rating percentage.  Since then he has had a heart attack and cancer, which are related to exposure to Agent Orange.

   b.  He concludes that he should have been medically discharged because his medical conditions were combat incurred.

3.  The applicant provides copies of two DA Forms 3349 (Medical Condition – Physical Profile Record), dated 13 May and 18 October 1969, and a DA Form 1811 (Physical and Mental Status on Release from Active Service), dated 
13 August 1970.


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 on 6 September 1968.  He was initially trained in military occupational specialty (MOS) 13A (Field Artillery Basic) and he was subsequently awarded MOS 17B (Counter Mortar Radar Crewman).

3.  His DA Form 20 (Enlisted Qualification Record) shows in –

* item 31 (Foreign Service), Vietnam from 20 January 1969 through
19 January 1970
* item 38 (Record of Assignments) –

* Battery C, 6th Battalion, 32nd Artillery, from 30 January through 8 June 1969
* 8th Battalion, 26th Artillery, attached from 9 June through 5 July 1969 
* Headquarters and Headquarters Battery, 8th Battalion (Target Acquisition), from 6 July 1969 through 16 January 1970

4.  The applicant's available medical records show –

* on 10 May 1969 –

* he was treated for perforation of the left ear drum, secondary to exposure to loud noise caused by artillery shell blast
* he had a history of spina bifida and complained of low back pain caused by lifting heavy artillery shells

* on 15 October 1969, he was seen for past traumatic hearing loss accompanied by constant ringing and occasional loss of balance
5.  Two DA Forms 3349 show the examining physicians indicated the applicant was medically qualified for duty with assignment limitations and issued him a permanent (P3) profile on –

* 13 May 1969, for lower extremities due to spondylosis L4 and partial sacralization L5
* 18 October 1969, for hearing due to bilateral hearing loss

6.  A Standard Form (SF) Form 513 (Clinical Record – Consultation Sheet) shows the applicant was seen at the Orthopedic Clinic, Darnell Army Hospital, Fort Hood, TX, on 3 August 1970, for spondylosis spina bifada, sacralization.  The examining physician cleared the applicant for separation.

7.  An SF 88 (Report of Medical Examination) prepared by the examining physician to document the applicant's separation examination shows in:

a. item 74 (Summary of Defects and Diagnoses) –

* spondylosis L4 and partial sacralization L5, spina bifida
* bilateral hearing loss

b. item 77 (Examinee), the applicant was found qualified for separation.

8.  A DA Form 1811, dated 13 August 1970, shows the applicant was notified that his physical condition was such that he was considered physically qualified for separation or for reenlistment in the U.S. Army.

9.  A DA Form 3082-R (Statement of Medical Condition), dated 28 August 1970, shows the applicant acknowledged that he underwent a separation medical examination more than 3 working days prior to his departure from the place of separation and there had been no change in his medical condition since his last separation examination.

10.  Headquarters, III Corps, Fort Hood, TX, Special Orders Number 207, dated 31 August 1970, relieved the applicant from active duty not by reason of physical disability (emphasis added) on 4 September 1970.

11.  The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was honorably REFRAD, on 4 September 1970, due to expiration term of service and transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training).  He had completed 1 year, 11 months, and 29 days of net active service this period that included 1 year of foreign service.
12.  Army Regulation 40-501 (Standards of Medical Fitness), chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement) provides information on medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures.

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) sets forth policies, responsibilities, and procedures 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.  

   a.  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.

   b.  Chapter 3 (Policies) provides that when a member is being separated by reason other than physical disability, his/her continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he/she was unable to perform his/her duties or that acute grave illness or injury or other deterioration of physical condition occurring immediately prior to or coincident with separation rendered the member unfit.

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 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 medically discharged because he was issued permanent physical profiles for his back and hearing loss, he did not receive a separation medical examination prior to being REFRAD, and the VA has granted him service-connection for his medical conditions.

2.  Records show the applicant was diagnosed with spondylosis L4 and partial sacralization L5 and bilateral hearing loss, and he was issued permanent profiles for his conditions indicating he was medically qualified for duty (emphasis added) with assignment limitations.

   a.  Records also show he underwent a separation medical examination prior to being REFRAD, his medical conditions were reviewed, and he was found qualified for separation (or reenlistment).

   b.  Records further show, on 28 August 1970, the applicant acknowledged that he had undergone a separation medical and there had been no change in his medical condition since the separation examination.

   c.  Thus, the evidence of record refutes the applicant's contention that he did not receive a separation medical examination prior to being REFRAD.

3.  There is no evidence of record to show the applicant's medical conditions (individually or in combination) were medically unfitting for retention under the provisions of Army Regulation 40-501.  There is also no evidence that shows he was unable to perform his duties within the specified assignment limitations, or that an acute grave illness or injury or other deterioration of physical condition occurred immediately prior to or coincident with his separation that rendered him unfit. 

4.  In fact, the evidence of record shows the applicant underwent a separation physical examination that included a complete review of his medical history and conditions (emphasis added).  Moreover, the examining physician requested consultations/examinations pertaining to the applicant's spondylosis and partial sacralization.  The examining physician reviewed those results and determined the applicant was qualified for retention and, therefore, qualified for separation.  Thus, there is no evidence of record that shows the applicant's conditions were unfitting at the time of his separation from active duty.


5.  Records show the applicant was released from active duty on 4 September 1989, not by reason of physical disability (emphasis added), and transferred to the USAR.  The evidence of record shows that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties.  The evidence of record fails to support a conclusion that he was unable to perform his duties.

6.  Both the statutory and regulatory guidance provide that the Army rates only conditions determined to be physically unfitting (emphasis added) that were incurred or aggravated during the period of service.  Furthermore, the condition(s) can only be rated to the extent that the condition(s) limit(s) 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.

7.  Therefore, in view 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)                                         AR20140013790



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ABCMR Record of Proceedings (cont)                                         AR20140013790



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