IN THE CASE OF:	  

		BOARD DATE:	  7 May 2015

		DOCKET NUMBER:  AR20140014977


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 DD Form 214 (Report of Separation from Active Duty) to reflect the narrative reason for separation as permanent disability retirement in lieu of administrative discharge due to failure to maintain acceptable standards for retention (expeditious discharge).

2.  The applicant states he was 40-percent disabled at the time of his discharge as evidenced by the Department of Veterans Affairs (VA) decision letter effective the day after his discharge.  In light of this, he should be authorized medical retirement benefits.

3.  The applicant provides:

* VA Form 21-6782 (Original Disability Compensation)
* DD Form 214

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 3 September 1976.

3.  His records reveal a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice on two occasions for:

* using marijuana, a controlled substance, on 19 November 1976
* missing an aircraft movement to an overseas destination due to his own negligence on 6 January 1977

4.  On 20 September 1977, his immediate commander notified him of his intent to initiate action to discharge him from the Army under the provisions of paragraph 
5-37 (Expeditious Discharge Program (EDP)) of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).  The commander stated the reasons for this action were the applicant's lack of motivation and inability to adapt socially or emotionally to the Army.  The commander informed him that he intended to recommend receipt of an Honorable Discharge Certificate.  He informed him that the issuance of a less than honorable discharge could preclude his eligibility for many or all veterans' benefits and he could expect to encounter substantial prejudice in civilian life.  He also advised him of his right to consult with legal counsel, to submit a statement in his own behalf, to decline the discharge, or to waive any of the aforementioned rights.

5.  The applicant acknowledged receipt of the commander's notification of intent to separate him under the provisions of the EDP and voluntarily consented to the separation action.  He consulted with legal counsel and was advised of the basis for the contemplated separation from the Army under the provisions of chapter 5 of Army Regulation 635-200, the effect on his future enlistment eligibility in the Army, the possible effects of a general discharge, and the procedures and rights available to him.  He acknowledged he understood that if he were issued a General Discharge Certificate, he could expect to encounter substantial prejudice in civilian life.  He declined to submit a statement in his own behalf.

6.  There is no evidence in the available records of a pre-separation medical examination administered to the applicant prior to his discharge.

7.  On 18 October 1977, the separation authority approved his discharge and directed the issuance of an Honorable Discharge Certificate.

8.  The applicant's available service medical records contain only the following three medical documents:

	a.  Ambulance Trip Report, dated 20 October 1977 at 0005, which detailed the dispatch of an ambulance at the request of the applicant's roommate due to the applicant's possible epileptic convulsion in his barracks room.  Upon the medic's arrival, the applicant was found sitting on his bed, post-convulsion.  His eyes were checked for dilation and his blood pressure was monitored.  He was taken to the clinic for observation.

	b.  Standard Form 600 (Chronological Record of Medical Care), dated 19 October 1977 at 0015 (presumably the date stamp used in the emergency room had not yet been changed to reflect 20 October 1977 as it was only shortly after midnight), which stated the applicant arrived at the U.S. Army Health Clinic Wildflecken Emergency Room at 0015 via ambulance after he experienced a minor convulsion.  His roommate said he was asleep when he heard a lot of noise.  When he turned the light on, he noticed the applicant shaking, then calm down, and later begin shaking again when he tried to keep the applicant from swallowing his tongue.  Convulsion (epilepsy) was noted on the document.  The applicant was observed for 1 hour in the clinic.  His roommate was instructed to further observe the applicant (presumably after discharge from the clinic).

	c.  Ambulance Trip Report, illegible date, which detailed the dispatch of an ambulance at 0905 to the applicant's barracks where he had suffered an apparent head injury.  Upon arrival of the medic, the applicant was found lying in the shower unconscious with no orientation to person, place, or time.  Further details regarding the injury or its diagnosis and treatment are not available.

9.  On 1 November 1977, he was honorably discharged under the provisions of Army Regulation 635-200, paragraph 5-37.  His DD Form 214 shows he completed 1 year, 1 month, and 29 days of creditable active military service.

10.  The applicant's records are void of any evidence and he has not provided any evidence showing 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 military occupational specialty (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

11.  He provided one page of a VA Form 21-6782.  This form is undated, incomplete, and contains no name or identifying information of the person for whom the disability compensation award was made.  It shows a service-connected condition with a combined evaluation of 40 percent was awarded to an individual for the condition of grand mal seizure.

12.  Army Regulation 635-200, chapter 5, in effect at the time, set forth the basic authority for the separation of enlisted personnel for the convenience of the government.  Paragraph 5-37 provided that Soldiers who had completed at least 6 months but less than 36 months of continuous active service on their first enlistment and who had demonstrated they could not or would not meet acceptable standards required of enlisted personnel because of poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential, would be discharged under the EDP.  It provided for the expeditious elimination of substandard, nonproductive Soldiers before board or punitive action became necessary.  No Soldier would be discharged under this program unless he/she voluntarily consented to the proposed discharge.

13.  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 (Standards of Medical Fitness), chapter 3, as evidenced in medical evaluation board (MEB) proceedings
* receive a permanent medical profile rating of 3 or 4 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 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 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 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/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.

14.  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/her 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.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the VA Schedule for Rating Disabilities.

15.  Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement).

	a.  Chapter 3 (Medical Fitness Standards for Retention, Promotion, and Separation, Including Retirement) provides the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the required standards.

	b.  Paragraph 3-28 (Neurological Disorders) lists convulsive disorders (this does not include convulsive disorders caused by and exclusively incident to the use of alcohol) that are not adequately controlled (complete freedom from seizure of any type) by standard drugs which are relatively nontoxic and which do not require frequent clinical and laboratory re-evaluation.

16.  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, the award of a VA rating or a comparatively higher VA rating does not establish error or injustice on the part of the Army.  The Army only rates 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:

1.  The applicant's request for correction of his DD Form 214 to reflect the narrative reason for separation as permanent disability retirement in lieu of administrative discharge under the EDP was carefully considered and found to be without merit.

2.  His records reveal a disciplinary history that includes the acceptance of NJP on two occasions for the use of a controlled substance and for missing overseas movement.

3.  Although there is no evidence of a pre-separation medical examination in his records, administrative regularity is presumed in the completion of his discharge packet.

4.  The rest of his discharge packet is available for review, however, and it shows he voluntarily consented to be discharged under the EDP for lack of motivation and inability to adapt socially or emotionally.  He was afforded the opportunity to consult with legal counsel and his discharge appears to have been accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

5.  The evidence of record suggests the applicant suffered a single episode of what appears to have been an epileptic convulsion 2 days after his discharge was approved and 12 days prior to his actual separation.  There is no evidence, however, that the applicant suffered an unfitting condition for which he received or should have received a permanent physical profile requiring referral to the PDES and eventual medical discharge or retirement.

6.  Although the applicant provided a partial VA Form 21-6782, the diagnosis of a medical condition and/or a subsequent award of a rating by the VA do not establish an error by the Army.  Operating under different laws and policies, the VA may award ratings because a medical condition is service connected and affects the individual's civilian employability, but it does not have the authority or the responsibility to determine medical unfitness for military service.

7.  Considering all the facts of the case, the type of discharge directed and the reason for separation were appropriate.  Therefore, there is no basis for granting 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 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)                                         AR20140014977



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ABCMR Record of Proceedings (cont)                                         AR20140014977



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