IN THE CASE OF:    

		BOARD DATE:  14 July 2015	  

		DOCKET NUMBER:  AR20140018833 


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, reconsideration of his earlier request for correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) ) to reflect the narrative reason for separation as permanent disability retirement in lieu of administrative discharge for expiration term of service.

2.  The applicant states:

* he was discharged due to being overweight and due to the Army downsizing after the Vietnam War
* he was exposed to Agent Orange which caused his thyroid problems, resulting in his weight gain
* the Army did not discover this at the time of his discharge
* according to Department of Veterans Affairs (VA) doctors, Agent Orange caused his thyroid problems which resulted in his weight gain while in the Army
* he passed all of his Army Physical Fitness Tests and at that time thyroid problems were not connected to the Army's height and weight standards

3.  The applicant provides:

* VA Form 21-526b (Veteran's Supplemental Claim for Compensation), dated 6 December 2013
* VA Form 21-526EZ (Application for Disability Compensation and Related Compensation Benefits)

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 AR2004105029 on 9 November 2004.

2.  The applicant provides a VA Form 21-526b (Veteran's Supplemental Claim for Compensation), dated 6 December 2013, and VA Form 21-526EZ (Application for Disability Compensation and Related Compensation Benefits) which were not previously considered by the Board and warrant consideration at this time.

3.  The applicant was inducted into the Army of the United States on 26 July 1966.  Records show he was awarded the Vietnam Service Medal with three bronze service stars and the Republic of Vietnam Campaign Medal, indicating service in Vietnam.  He served continuously through multiple reenlistments and was promoted to the rank/grade of staff sergeant/E-6.

4.  A Senior Enlisted Evaluation Report for the period ending June 1980 contains a statement from his rater that that he was not within the Army's height and weight limits and a statement from his endorser that he should realign his goals toward weight reduction in order to comply with current Army standards.

5.  In an Enlisted Evaluation Report for the period ending July 1982, his rater states the applicant is a below average noncommissioned officer who must be constantly prodded to do his job; he needs constant supervision in the performance of any task given to him; he is on the overweight program and must lose weight in order to stay in the Army.  Documentation regarding his progress in the Army Weight Control Program is not available for review.

6.  The facts and circumstances surrounding his discharge are unknown.  His DD Form 214 shows he was honorably discharged at his expiration term of service.  His narrative reason for separation does not list failure to meet weight control standards, but rather expiration term of service.  He was credited with 17 years, 11 months, and 3 days of active service.

7.  His available service records do not indicate he was ever treated for or diagnosed with a thyroid condition or any other condition which contributed to his weight gain while in the Army.  The available records also 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 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

8.  A Compensation and Pension Veteran Information sheet, dated 5 December 2003, shows the applicant received a combined 60-percent service-connected disability rating from the VA for sleep apnea syndrome and hypertensive vascular disease at that time.

9.  The applicant provided a copy of his VA Application for Disability Compensation and Related Compensation Benefits as well as his Supplemental Claim for Compensation, dated 6 December 2003.  The forms show he requested service connection for prostate cancer due to Agent Orange exposure while in Vietnam (also listed as herbicide condition and prostate condition), ischemic heart condition, and bilateral upper peripheral neuropathy.  Any VA Rating Decision document pertaining to these claims is not in his available records and has not been provided by the applicant.

10.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 4 contained the authority and outlined the procedures for discharging individuals upon termination of enlistment and other periods of active duty or active duty for training.  It stated a member enlisted or ordered to active duty normally would be discharged or released from active duty on the date he or she completed the period for which enlisted, if reenlistment is not pursued or authorized.  Personnel who were physically unfit for retention per Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, were not to be separated because of expiration term of service unless processing for separation because of physical disability was waived.  A member being separated upon expiration of enlistment or fulfillment of service obligation was to be awarded a character of service of honorable, unless an entry-level separation was required.

11.  Army Regulation 601-280 (Total Army Retention Program) prescribes procedures to deny reenlistment (through a field commander's bar to reenlistment) to Soldiers whose immediate separation under administrative procedures is not warranted but whose reentry into or service beyond expiration term of service with the Active Army is not in the best interest of the military service.  When discharge under administrative procedures is not warranted, action will be taken to bar untrainable Soldiers from further service with the Regular Army.  These Soldiers are often identified by failure to perform the basic tasks required of their primary MOS, failure to achieve individual weapons qualification, failure of the Army's Physical Fitness Test, failure of the skill qualification test, and similar reasons.  Soldiers who fail to meet the Army's height and weight standards as delineated in Army Regulation 600-9 (The Army Weight Control Program) and are placed in the Weight Control Program are not allowed to extend or reenlist unless they have a temporary or permanent physical medical condition that precludes weight loss or are under medical care for pregnancy.  This bar to reenlistment is nonwaivable.

12.  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).

13.  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.

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.

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 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, chapter 3, as evidenced in a medical evaluation board
* 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 medical evaluation board (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 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 by reason of disability receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retired pay 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.

16.  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 of less than 30 percent.

17.  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 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 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.

18.  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.  The applicant's request for reconsideration of his earlier request for correction of his DD Form 214 to reflect his narrative reason for separation as permanent disability retirement in lieu of administrative discharge for expiration term of service was carefully considered.

2.  The complete facts and circumstances pertaining to his discharge are not available for review.  It is incumbent upon the applicant to provide a compelling argument supported by corroborating documentation to show his records are in need of correction based on an injustice or inequity.  In the absence of such evidence, administrative regularity is presumed with regard to his administrative discharge.

3.  There is no indication his discharge was not accomplished in compliance with applicable regulations without procedural errors which would have jeopardized his rights.  It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

4.  There is no evidence of record the applicant had a thyroid condition which contributed to his weight gain and thus his ultimate discharge from the Army.  The available documents show he did not meet the Army's height and weight standard and was subsequently placed in the Army Weight Control Program.  Inability to meet the Army's height and weight standards incurs an unwaivable bar to reenlistment.  His DD Form 214 reflects he was discharged due to meeting his expiration term of service.  It can be inferred that the applicant was barred from reenlisting due to his inability to meet the Army's height and weight standards.

5.  There is no evidence 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 evaluation 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.  There is no evidence showing he suffered from an unfitting condition at the time of his discharge warranting a disability rating of at least 30 percent and permanent disability retirement.  Therefore, there is no basis to change the narrative reason for separation to reflect permanent disability retirement.

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 to amend the decision of the ABCMR set forth in Docket Number AR2004105029, dated 9 November 2004.



      ___________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)                                         AR20140018833



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ABCMR Record of Proceedings (cont)                                         AR20140018833



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