IN THE CASE OF:	  

		BOARD DATE:	  22 October 2015

		DOCKET NUMBER:  AR20150002076 


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:

	a.  promotion to staff sergeant (SSG)/E-6 and

	b.  an increase in his disability rating from 40 percent to 100 percent.

2.  The applicant states:

	a.  At the time he went before a medical evaluation board (MEB), he had a permanent physical profile rating of 3 that was not presented to the board.  He would like this information made available to the MEB and his disability rating increased.

	b.  He should have retired in the grade of E-6.

	c.  He did not receive credit for schooling.

3.  In a self-authored letter to the Army Review Boards Agency, he further stated:

	a.  If the permanent physical profile rating of 3 had been considered by the board, he is sure it would have made a big difference in his disability rating.  He was evacuated from Vietnam in 1969 due to a reaction from an anti-malaria pill which left him with a heart condition.  After that he was seen every 6 months for his heart condition and he was not allowed to be assigned to an area where he would have to take anti-malaria medication.

	b.  A doctor at Walter Reed Army Medical Center told him he was going to recommend a disability rating of 100 percent to the MEB because of his heart condition, reappearance of jaundice, and other changes taking place in his body from the reaction to anti-malaria pill.  The doctor told him it was going to take at least 30 days and he could go home on convalescent leave if he wanted.  He went home and he had a new doctor when he returned.  The new doctor threw out everything his first doctor had done and entered information based on a biased opinion.

	c.  The MEB listed glucose-6-phosphatase dehydrogenase (G6PD) deficiency, but it was not rated even though it was aggravated by the anti-malaria pill.  The MEB said his disability was not based on an injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurred in the line of duty during a period of war.  He was evacuated from Vietnam during his second tour due to the reaction from the anti-malaria pill.  His red blood cells were being destroyed and he received blood transfusions on more than one occasion.  There is no telling what kind of changes have taken place in his body since the first reaction in 1969.

	d.  He has had several hemolytic episodes triggered by almost anything – smell, chemical paint, and smoke.  The worst part is that he fathered four children with birth defects.  Two of his children are deceased.

	e.  He should have been promoted to SG/E-6 in 1971.

4.  The applicant provides:

* DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) for the periods ending 27 May 1965, 18 May 1968, 12 August 1971, and 28 July 1972
* service personnel records
* two DA Forms 3349 (Medical Condition – Physical Profile Record), dated 2 June 1969 and 14 August 1970
* certificate of vaccination


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 6 September 1963 for a period of 3 years.  On 27 May 1965, he was honorably discharged for immediate reenlistment.  He reenlisted on 28 May 1965 for a period 3 years.

3.  His records contain two DA Forms 20 (Enlisted Qualification Record).  Item 33 (Appointments and Reductions) of his DA Form 20 audited in May 1968 shows he was appointed to the temporary rank of sergeant (SGT)/E-5 effective 29 May 1965.

4.  He served as a field artillery crewman in Vietnam from June 1967 to May 1968.  On 18 May 1968, he was honorably released from active duty.  He enlisted again on 13 November 1968 for a period of 3 years.  He served a second tour in Vietnam from 30 April 1969 to 22 May 1969.

5.  He provided:

	a.  a DA Form 3349, dated 2 June 1969, showing he was issued a permanent physical profile rating of 3 under the physical capacity or stamina factor for an enzyme defect causing destruction of red blood cells when exposed to certain drugs and a heart murmur.  He was found medically qualified for duty with assignment limitations; and

	b.  a DA Form 3349, dated 14 August 1970, showing he was issued a permanent physical profile rating of 3 under the physical capacity or stamina factor for G6PD deficiency (he cannot take anti-malarial drugs – chloroquine and primaquine) and a heart murmur.  He was found medically qualified for duty with permanent profile limitations.

6.  Item 33 of his DA Form 20, audited in May 1971, shows he was promoted to SGT/E-5 effective 25 March 1970.

7.  His records show he was recommended for promotion to SSG in July 1971 and his name was placed on an SSG/E-6 Promotion Standing List in July and August 1971.

8.  On 12 August 1971, he was honorably discharged for immediate reenlistment. 
On 13 August 1971, he reenlisted for a period of 6 years.

9.  His MEB and physical evaluation board (PEB) proceedings are not available for review.

10.  He retired on 28 July 1972 by reason of temporary disability and was placed on the TDRL effective 29 July 1972.  His DD Form 214 for the period ending 28 July 1972 shows in:

* item 5a (Grade, Rate, or Rank) – "SGT"
* item 5b (Pay Grade) – "E-5"
* item 6 (Date of Rank) – "25 MAR 70"

11.  He was removed from the TDRL on 31 October 1976 and permanently retired with a disability rating of 40 percent in the rank of SGT/E-5 the following day.

12.  There are no orders in the available records showing he was promoted to SSG/E-6.

REFERENCES:

1.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions), paragraph 1-20e, states Soldiers on a promotion list who are retired for physical disability or who are placed on the TDRL at the time of retirement for disability will be retired for disability at the promotion list grade.  The Soldier will be promoted effective the day before placement on the Retired List or TDRL regardless of cutoff scores, sequence numbers, or position availability.

2.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying.  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.

DISCUSSION:

1.  The applicant requests correction of his permanent disability rating from 40 percent to 100 percent.

2.  He provided a DA Form 3349, dated 14 August 1970, which shows he was issued a permanent physical profile rating of 3 under the physical capacity or stamina factor for G6PD deficiency and a heart murmur.

3.  Although he contends the permanent physical profile rating of 3 that was not presented to the MEB, he also indicated the MEB listed G6PD deficiency as a medical condition but it was not rated.

4.  In the absence of evidence to the contrary, it must be presumed that the applicant's disability processing was administratively correct and in conformance with applicable regulations.  Without the disability proceedings to consider, it is presumed his unfitting conditions were properly rated by the PEB in 1972.  Therefore, there is no basis for granting the applicant's request to increase his disability rating.

5.  His request for promotion to SSG/E-6 appears to have merit.  The evidence of record shows he was recommended for promotion to SSG in July 1971 and his name was placed on an SSG/E-6 Promotion Standing List in July and August 1971.  The governing regulation states Soldiers on a promotion list who are retired for physical disability or who are placed on the TDRL at the time of retirement for disability will be retired for disability at the promotion list grade.  His records should be corrected to show he was promoted to SSG effective 28 July 1972.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)                                         AR20150002076



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

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ABCMR Record of Proceedings (cont)                                         AR20150002076



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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