BOARD DATE:	  28 May 2015

		DOCKET NUMBER:  AR20140016856 


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 (Armed Forces of the United States Report of Transfer or Discharge) to reflect the narrative reason for separation as physical disability in lieu of administrative discharge for the convenience of the government as determined by Secretarial authority.

2.  The applicant states, in effect, he sustained a back injury on 24 December 1970, prior to his separation from active duty, which should have resulted in a physical disability discharge with severance pay.  All of his medical records are in the possession of the Department of Veterans Affairs (VA).

3.  The applicant provides no additional evidence.

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 28 September 1970.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 76A (Supply Clerk).

3.  On 4 February 1972, he underwent a medical examination for the purpose of separation.  The Standard Form 88 (Report of Medical Examination) shows his only abnormalities after clinical evaluation were deemed to be a scar on his right wrist from an operation, a scar on his neck, and pseudofolliculitis barbae (razor bumps).

4.  Headquarters, U.S. Army Personnel Center, Fort Dix, Special Orders Number 110, dated 19 April 1972, released him from active duty not by reason of physical disability and transferred him to the U.S. Army Reserve.

5.  His DD Form 214 shows he was honorably released from active duty on 19 April 1972 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-3, per Secretarial authority after completing 1 year, 6 months, and 22 days of active service.

6.  His VA Form 07-3101 (Request for Information), dated 20 June 1972, shows he claimed he received treatment for a back condition on 25 December 1970 at St. Michaels Hospital, Milwaukee, WI; a right wrist injury in October 1970 while in basic combat training at Fort Campbell, KY; and a head injury on an unknown date and unknown location.

7.  His available service records do not contain documentation corroborating he sustained a back injury during his Army service and they do not indicate 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

8.  His records contain two routing and transmittal slips as well as an active duty report showing he was released early from Reserve annual training on 19 June 1973 for a bad back and that he was receiving treatment for his back ailment at Woods VA Hospital in Milwaukee, WI.  Further documentation pertaining to this ailment is not in his available records.

9.  Records reflect he continued to serve in the U.S. Army Reserve until 28 September 1975, at which point he was transferred to the Standby Reserve and remained in that category until his discharge on 27 September 1976, the termination date of his Reserve obligation.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 5-3 states the separation of enlisted personnel for the convenience of the government is the prerogative of the Secretary of the Army and will be accomplished only by his authority with the issuance of an honorable or general discharge certificate as determined by him.

11.  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 a medical evaluation board (MEB)
* 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 or 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 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.

12.  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 or 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.

13.  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 VA Schedule for Rating Disabilities (VASRD).

14.  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.

15.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  His request for correction of his DD Form 214 to reflect the narrative reason for separation as physical disability in lieu of administrative discharge for the convenience of the government as determined by Secretarial authority was carefully considered and found to be without merit.

2.  The details surrounding his discharge under the provisions of Army Regulation 635-200, paragraph 5-3, are not in the available record for review, but in the absence of such documentation administrative regularity is presumed.  There is no indication his administrative separation was not accomplished in compliance with all applicable laws and regulations and his rights were not fully protected throughout the separation process.

4.  Although he claims to have suffered a back injury during his Regular Army service, there is no evidence of record and he did not provide any showing he 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 into the PDES.  Referral into the Army PDES requires a designation of "unfit for duty" before an individual can be separated from the military because of an injury or medical condition.  At the time of his discharge, there was no evidence of an unfitting condition that would have warranted entry into the PDES.  

5.  Therefore, there is no evidentiary basis to change the narrative reason for separation to reflect physical disability discharge in lieu of administrative discharge for the convenience of the government.



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)                                         AR20140016856



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ABCMR Record of Proceedings (cont)                                         AR20140016856



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