IN THE CASE OF:	  

		BOARD DATE:	  9 June 2015

		DOCKET NUMBER:  AR20140016893 


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 show he was medically discharged in lieu of voidance of induction.

2.  The applicant states he was never given the opportunity to serve his country.  After spending time in Fort Polk Army Hospital, he should have been returned to duty.  There were three prior medical examinations that showed no medical problems.  The voidance of his induction was unjust and resulted in preventing him from completing his tour of duty and stopped him from receiving benefits from the Department of Veterans Affairs (VA) and other veteran programs that could have helped him over the last 44 years.  The court rulings pertaining to his VA claim prove:

* that he has a service-connected disability
* that he should not have been discharged due to a preexisting condition
* there is enough evidence to change his military records

3.  The applicant provides:

* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)
* DD Form 214
* DA Form 2139 (Military Pay Voucher)
* DA Form 8-274 (Medical Condition - Physical Profile Record)
* Special Orders Number 096, dated 23 April 1969
* VA Rating Decision Appeal

COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE:

1.  Although the applicant lists the American Legion, Chicago, IL as counsel they made no request on his behalf.

2.  Counsel provides no statement on the applicant's behalf

3.  Counsel 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's record contains a DD Form 47 (Record of Induction) which shows he underwent a pre-induction medical examination on 19 July 1968 and was found to be acceptable for induction into the Armed Forces at the time.  Block 16 (Physical Defects) shows "None (That are known)."

3.  He was inducted into the Army of the United States on 26 March 1969.  He did not complete basic training.

4.  His record contains and he also provides an undated DA Form 8-274.

	a.  Section A (Duty Status) shows he was not medically qualified for induction.

	b.  Section B (Physical Profile) shows he was assigned a level 3 physical limitation profile in the "P" (Physical capacity/stamina) category in the physical profile serial system.  His defects were listed as:

* Peptic esophagitis
* Blood loss anemia
	c.  Section C (Assignment restrictions, or geographical, or climatic Area Limitations) shows the entry "Patient awaiting medical board."

5.  The applicant provided a DA Form 2139 which shows he was paid for the period of 25 to 31 March 1969.

6.  The applicant's complete discharge packet is not available for review.  However, the applicant signed a DA Form 2496 (Disposition Form) addressed to his commanding officer, dated 7 April 1969, subject:  Request for Separation, requesting to be released from the Army under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-9 by reason of erroneous induction.  The justification for this request was that he did not meet induction standards as prescribed by Chapter 2 of Army Regulation 40-501 (Standards of Medical Fitness).

7.  Headquarters, U.S. Army Training Center, Infantry and Fort Polk, LA, Special Orders Number 096, dated 23 April 1969, released the applicant from custody and control of the Army effective 28 April 1969 by virtue of a void induction.

8.  His DA Form 20 (Enlisted Qualification Record) indicates that he did not attend or complete Basic Training.

9.  The applicant's DD Form 214 shows he was honorably released from military control on 28 April 1969 under the provisions of Army Regulation 635-200 and he was assigned separation program number (SPN) 376 specifying release from military control (void induction) because of not meeting medical fitness standards at the time of induction.  His DD Form 214 shows he completed 1 month and 3 days of active service.

10.  The applicant provides two letters he received from the Director, Office of Management, Planning and Analysis, VA Board of Veterans' Appeals, Washington, DC:

	a.  A letter dated 10 October 2009 informed him the Board of Veterans' Appeals had received his VA claims file and his appeal had been returned to the board docket.  Since his appeal was previously remanded for additional development by the originating agency, they would expedite action on his case.

	b.  A letter dated 7 June 2010 informed him that board had made a decision in his case and that a copy was enclosed.  He was further advised that his records were being returned to the VA office having jurisdiction over this matter.

11.  A VA Board of Veterans' Appeals record of board proceedings, dated 7 June 2010, shows a board convened to determine whether new and material evidence had been received to reopen the applicant's claim of entitlement to service connection for a gastrointestinal (GI) disorder, and if so whether service connection was warranted.  It was noted that the applicant served on active duty from March to April 1969.  These proceedings also show, in part:

		a.  Findings of Fact:

* In June 2002, the Regional Office (RO) denied service connection for a GI disorder
* The applicant did not timely appeal the decision
* Evidence received since the RO's aforementioned denial relates to an unestablished fact necessary to substantiate the claim
* This creates a reasonable possibility of substantiating the claim
* The applicant's GI disorder is related to his military service

		b.  Conclusions of Law:

* The June 2002 RO decision that denied service connection for a GI disorder is final
* New and material evidence had been received since the October 2004 decision and the claim for service connection for a GI disorder is reopened
* The criteria for service connection for a GI disorder have been met

		c.  New Evidence:

* In June 2002, the RO denied service connection for GI disorder
* The RO considered the applicant's service treatment records which showed that a Medical Board examination showed ulcer, Line of Duty (LOD), not due to own misconduct or negligence, existed prior to service
* It was noted on the report that the applicant was not qualified for service and separation was recommended
* Private records beginning in 2000 showed treatment for duodenal ulcer and esophagitis
* The RO found that the disorder pre-existed service with no aggravation during the short period of service
* Evidence submitted since the June 2002 denial consists of private medical records, a VA examination report and hearing testimony from the applicant and his wife
* This evidence was new and not previously of record
* While some of it was cumulative, duplicative, or immaterial, there was also evidence submitted that was material and sufficient to reopen the applicant's claim
* Specifically, he was examined by the VA in July 2000 and Gastro-Esophageal Reflux Disease (GERD) and duodenal ulcer secondary to Helicobacter pylori last active 10 years ago were diagnosed
* The examiner opined that it was less likely than not the GERD was incurred in service or aggravated by service
* It was noted that GERD symptoms commenced years after discharge
* The examiner stated that duodenal ulcer was not present prior to or at induction, but the preponderance of the evidence indicates that the applicant developed a bleeding ulcer during service
* Although hospital records of treatment in service were not found, the discharge examination lists ulcer, which was the basis for his early discharge
* This evidence is new and material to the applicant's claim, because it provides a diagnosis of GI disorders and relates one to having been incurred in service, something not established previously

		d.  Service Connection:

* Service connection may be granted for disability resulting from disease or injury incurred or aggravated by service, and for some disorders may be presumed it manifested to a compensable degree with the first post service year
* If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptoms after service is required for service connection
* Service connection may also be granted for any disease diagnosed after discharge, when all evidence establishes that the disease was incurred in service
* Service connection requires a finding of the existence of a current disability and a determination of a relationship of it and an injury or disease incurred in service
* A veteran is considered to have been in sound condition when examined, accepted and enrolled for service except for conditions noted at entrance
* The exception is where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service
* A preexisting injury or disease will be considered to have been aggravated by service where there is an increase in disability during such service, unless due to natural progress of the disease
* When no preexisting condition is noted upon entry the veteran is presumed to have been sound and the burden falls on the government to rebut the presumption of soundness
* The government must rebut by clear and unmistakable evidence that the disability was both preexisting and not service aggravated
* Lack of aggravation can be shown by establishing that there was no increase in disability during service or that any increase was due to the natural progress of the preexisting condition
* If this burden is met, then the veteran is not entitled to service connected benefits
* Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all evidence of record of manifestations prior to, during, and subsequent to service
* A preexisting disease or injury will be presumed to have been service aggravated only if evidence shows an increase in severity
* In contrast, a flare-up of symptoms, in the absence of an increase in underlying severity, does not constitute aggravation of the disability
* Evidence of being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation
* If the disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance the disorder is not presumed to be service aggravated
* "Aggravate" is defined as "to make worse" 
* After determining presumption of soundness it must be determined if disabilities were made worse by service

		e.  In this case, the service treatment records did not record a history of a GI disorder.  There is a notation of existed prior to service only.  The Board of Veterans' Appeals finds that the medical records are not competent evidence that a GI disorder clearly and unmistakably preexisted service.  However, there are two steps to rebut the presumption of soundness at entry.  Secondly, there must be clear and unmistakable evidence that the defect or injury was not aggravated during service.  If both prongs are not met, the presumption of soundness at entry is not rebutted.  Since the first prong was not met, the board must conclude that the presumption of soundness has not been rebutted in this case.

		f.  Having determined that the presumption of soundness had not been met in this matter, the board then considered whether the evidence otherwise permitted the establishment of service as a direct basis.  This determination is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value.  If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue.  On the other hand, if the board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable.

		g.  The evidence supports a finding that service connection on a direct basis is warranted.  The applicant is competent to attest to experiencing continuing GI complaints during and after service.  Further, the opinion of the VA Medical Examiner has high probative value and it links the applicant diagnosed ulcer disease with service.  The opinion was based upon review of the claims file and a physical examination, is supported by the rationale and is uncontridicted in the record.  Thus it was found to be persuasive.  As such, service connection for a GI disorder is warranted.

		h.  Order:

* The appeal to reopen a claim of service connection for GI disorder is granted
* Service connection for GI disorder is granted

12.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Paragraph 5-9, in effect at the time, provided for the separation of personnel who did not meet the medical fitness standards for procurement.  Specified commanders were authorized to order separation of individuals who were not medically qualified under procurement medical fitness standards when accepted for initial enlistment or induction.  Eligibility for separation was governed, in part, by the following:

	a.  A medical board finding that the individual had a medical condition which would have permanently disqualified him for entry in the military service under the provisions of Army Regulation 40-501, chapter 2 had it been detected at that time but did not disqualify him from retention in the military service under the provisions of Army Regulation 40-501, chapter 3.

	b.  A request for discharge would be submitted by the individual to his unit commander within 4 months from the date of initial entry on active duty.

13.  Chapter 2 of Army Regulation 40-501 prescribes the medical conditions and physical defects that are causes for rejection for appointment, enlistment, and induction into military Service.  Unless otherwise stipulated, the conditions listed in this chapter are those that would be disqualifying by virtue of current diagnosis, or for which the candidate has a verified past medical history.

	a.  Paragraph 2-3a (Abdominal organs and GI system - Esophagus) provides, in part, that chronic, or recurrent esophagitis does not meet the standard.  Current or history of esophageal disease, including, but not limited to ulceration, varices, fistula, achalasia, or GERD, or complications from GERD including stricture, or maintenance on acid suppression medication, or other dysmotility disorders; chronic, or recurrent esophagitis, does not meet the standard.

	b.  Paragraph 2-4 (Blood and blood-forming tissue diseases) provides, in part, that current hereditary or acquired anemia, which has not been corrected with therapy before appointment or induction, does not meet the standard. 

14.  Chapter 3 of Army Regulation 40-501 sets forth the various medical conditions and physical defects which normally render a member unfit for further military service.

	a.  Paragraph 3-5 (Abdominal and GI defects and diseases) includes the following conditions:  

		(1)  Demonstrable esophageal varices or history of bleeding therefrom.

		(2)  Gastritis, if severe, chronic hypertrophic gastritis with repeated symptomatology and hospitalization, confirmed by gastroscopic examination.

		(3)  Ulcer, duodenal, or gastric with repeated hospitalization, or "sick in quarters" because of frequent recurrence of symptoms (pain, vomiting, or bleeding) in spite of good medical management and supported by endoscopic evidence of activity.

	b.  Paragraph 3-7 (Blood and blood-forming diseases) includes Anemia, hereditary, acquired, aplastic, or unspecified, when response to therapy is unsatisfactory, or when therapy is such as to require prolonged, intensive medical supervision.

15.  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.

16.  Army Regulation 635-40 establishes the Army PDES under the provisions above.  It 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.

	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 MEB and 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.

17.  The VA Schedule for Rating Disabilities (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. 

18.  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 or injustice in the Army rating.  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.  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.

19.  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 regulation provides that 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 records show he was separated under the provisions of Army Regulation 635-200, paragraph 5-9, due to not meeting medical fitness standards at the time of induction.

2.  Complete medical records related to the applicant's separation processing are not available for review.  However, a memorandum completed and signed in conjunction with his separation shows he voluntarily requested separation for physical reasons which existed prior to his induction and he acknowledges he was erroneously inducted since he did not meet the Army's medical fitness standards at the time of induction.

3.  Records reflect a separation packet, to include a Report of Medical Examination, was submitted to the separation approval authority and the applicant was subsequently honorably separated from the service.

4.  In the applicant's case, aside from his preexisting condition which rendered him ineligible for induction, there is no evidence he incurred an injury or other medical conditions during his military service which would have warranted a medical discharge.  To the contrary, evidence provided by the applicant shows he went decades without significant symptoms or requiring medical treatment.

5.  He appears to believe since the VA awarded him service connection and a disability rating for a condition, the Army should have, in effect, done the same.  This contention is without merit.  Under the legacy PDES, the Army and the VA disability evaluation systems are independent of one another.  A diagnosis of a medical condition and/or a subsequent award of a rating by another agency do not establish 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.  The VA has the responsibility and jurisdiction to recognize any changes in a condition over time by adjusting a disability rating.

6.  The available evidence shows the applicant's condition existed prior to service and was cause for rejection for induction under the provisions of Army Regulation 40-501, paragraph 2.  His records contain no indication of procedural or other errors that would have jeopardized his rights.

7.  The ABCMR begins its consideration with a presumption of regularity that what the Army did was correct.  The burden of proving otherwise is the responsibility of the applicant.  Therefore, it is presumed that the reason for separation shown on his DD Form 214 is correct and that he was properly separated.

8.  The ABCMR does not grant requests for changes in types of discharges solely for the purpose of making an applicant eligible for veterans' benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her type of discharge.

9.  Granting veterans' benefits is not within the purview of the ABCMR.  Any questions regarding eligibility for veterans' benefits should be addressed to the entity granting the benefits.

10.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20140016893



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ABCMR Record of Proceedings (cont)                                         AR20140016893



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