IN THE CASE OF:
BOARD DATE: 10 September 2015
DOCKET NUMBER: AR20150002054
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 separated from active duty due to physical disability.
2. The applicant states he believes his DD Form 214 should show he was discharged due to medical reasons because of his cervical thoracic injuries that were not addressed while he was on active duty. While on active duty, he was an inpatient at the Wiesbaden U.S. Air Force Hospital where he received lumbar surgery.
3. The applicant provides what appears to be a complete copy of his Department of Veteran Affairs (VA) medical records (approximately 2,000 pages).
CONSIDERATION OF EVIDENCE:
1. On 24 August 1967, the applicant enlisted in the Regular Army.
2. In April 1968, the applicant was assigned for duty in the Federal Republic of Germany (FRG).
3. A DA Form 20 (Enlisted Qualification Record) shows the applicant:
a. was initially trained as an air traffic control operator;
b. He was physically and mentally fit on 1 November 1967 as indicated by his physical profile of 111111;
c. He was advanced to specialist four on 15 November 1968; and
d. reclassified as a chaplain's assistant effective 15 November 1968.
4. A DA Form 2496 (Disposition Form) dated 12 September 1969, shows the applicant was recommended for promotion to specialist five, pay grade E-5.
5. A DA Form 2166 (Enlisted Efficiency Report) dated 12 September 1969, reported that the applicant had performed all of his assigned duties in an outstanding manner.
6. A DA Form 2496, dated 14 July 1970, shows the applicant requested to be separated in the FRG upon completion of his required military service so that he would be able to fulfill a 2-year mission for his church.
7. An AE Form 2183 (Enlisted Personnel Data) dated 17 July 1970, shows the applicants physical profile and code were 111111A. This form further showed None for physical defects and assignment limitations.
8. Special Orders Number 155, 5th Battalion, 1st Artillery, dated 27 July 1970, announced the applicants release from active duty not by reason of physical disability and transfer to the U.S. Army Reserve (USAR) Control Group (Standby), effective 24 August 1970.
9. A DA Form 137 (Installation Clearance Record) dated 20 August 1970, indicates that the applicant properly cleared the medical facility.
10. A DA Form 2496, subject: Records Clearance Inventory Form dated
22 August 1970, indicates that the applicants separation medical examination was included in his service records that were to be transferred to the U.S. Army Administration Center located in St. Louis, MO.
11. The applicant's DD Form 214 shows he was released from active duty (REFRAD) on 22 August 1970, due to expiration of term of service (ETS). He was given an honorable characterization of service and a reentry code of 1 indicating he was eligible for reenlistment without any waivers. He had completed 2 years, 11 months, and 29 days of creditable active duty service.
12. Letter Orders Number 07-1185387, USAR Components Personnel and Administration Center, dated 18 July 1973, announced the applicants discharge from the Standby Reserve effective 1 August 1973.
13. The applicants service medical records are not available for review.
14. A VA Rating Decision dated 28 March 1998 states the applicant was granted a service-connected disability rating for spondylolisthesis L5-S1, status post laminectomy L5 and partial laminectomy L4 with spine fusion L4-L5-S1, rated at 60 percent disabling effective 7 November 1997.
a. The available evidence to support this decision included the applicants service medical records for the period 9 August 1967 to 31 July 1970.
b. The service medical records revealed that the applicant had congenital spondylolisthesis which existed prior to service but had been aggravated by service as opined by service physicians. Therefore, service connection was conceded based on aggravation.
15. Army Regulation 40-501 (Standards of Medical Fitness) provides the standards for medical fitness for retention and separation, including retirement. Soldiers with medical conditions listed in this chapter should be referred for disability processing.
a. Physical profiling, provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted.
b. Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES): P-physical capacity or stamina, U-upper extremities, L-lower extremities, H-hearing and ears, E-eyes, and S-psychiatric. Numerical designator "1" under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.
c. Profile codes show that Code A is used to indicate an individual has no assignment limitations and is considered to be medically fit.
16. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation):
a. This regulation provides that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade or rating.
b. It also provides that when a member is being separated by reason other than physical disability, his or her continued performance of assigned duty commensurate with his or her rank or grade until he or she is scheduled for separation or retirement creates a presumption that he or she is fit. This presumption can be overcome only by clear and convincing evidence that he or she was unable to perform his or her duties for a period of time 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.
17. 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% and 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 at less than 30%.
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 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 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends, in effect, that his DD Form 214 should be changed to show he was separated from active duty due to physical disability.
2. The evidence of record clearly shows that the applicant was discharged as a result of completing his required active duty service. His separation was not due to a physical disability that made him unfit for further duty. In fact, he was fully eligible for retention without any waivers.
3. Because the applicant's physical condition was not medically unfitting for retention at the time of his discharge there was no basis for a medical retirement or disability separation from active duty.
4. The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated from active duty. In the applicants case, his records show that he performed his duties in an outstanding manner and was recommended for promotion.
5. There is no apparent error or an injustice in his case.
6. An award of a VA rating does not establish entitlement to medical retirement or disability separation from the Army. Operating under its own policies and regulations, the VA, which has neither the authority nor the responsibility for determining medical unfitness for military duty, awards ratings because a medical condition is related to service ("service-connected") and affects the individual's civilian employability. Furthermore, 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 must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.
7. In view of the above, the applicant's request should be denied.
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) AR20130005019
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20150002054
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