AR20140000050

IN THE CASE OF:

BOARD DATE: 3 September 2014

DOCKET NUMBER: AR20140000050

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 reconsideration of the following earlier requests:

a. revocation of his honorable discharge for completion of required active service;

b. reinstatement in the Army in the rank/grade of commandsergeantmajor (CSM)/E-9; and

c. a medical evaluation board (MEB) for frostbite injuries.

2. The applicant states, in effect:

a. Throughout the years he has complained about his feet. However, the time period between his separation and going to prison in 1985 he never complained about his ailing feet because there was no inquiring medical staff. The military told him there was nothing wrong with him during his separation examination.

b. He should have received the benefit of an MEB. Instead, he was reassigned and given a new military occupational specialty of 71L (administrative specialist). He was housed in WorldWarII billets with wooden floors, which hurt his feet. After his separation, his employment required him to work on concrete floors, which caused him pain. He quit his job and began spiraling until he landed in prison.

c. During his separation physical examination he made the doctors aware of his cold weather injury that took place in Germany, but he didn’t get a response or feedback leading him to believe there was nothing medically wrong with him.

d. Had he received the benefits of Army Regulation 635-200 (Personnel Separations Enlisted Personnel) he would have more than likely reenlisted and retired or at least been more aware of having a medical disability. He would have been better able to cope with the transition to civilian life while also receiving disability benefits from the Department of Veterans Affairs (VA). If he had remained in a career status, he would not have remained a specialistfour (SP4)/E-4.

e. The VA rated him as 20-percent disabled in 2005 before he became wheelchair bound.

3. The applicant provides:

* VA Rating Decision, dated 1February 2005
* one page of his DAForm2-1 (Personnel Qualification Record PartII)
* service medical records
* Department of Corrections medical records

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 NumberAR20120018445, on 15October 2013.

2. The applicant provided service medical records, dated between December 1976 and April 1977, which show he was treated for the following complaints:

* cold weather injury to his feet
* right hand injury
* foot problems

3. He provided medical records from the Department of Corrections, dated between 1985 and 2004, which show he was treated for the following complaints:

* left foot/ankle problem
* ingrown toenails
* jock itch and athletes foot
* left foot pain
* cough/congestion
* left knee pain
* cold feet

4. He also provided a VA Rating Decision, dated 1 February 2005, which shows he was granted disability compensation for residuals of frostbite, left lower extremity (10percent), and residuals of frostbite, right lower extremity (10percent). His combined disability rating is 20percent.

5. The documentation provided by the applicant is new evidence that will now be considered by the Board.

6. He enlisted in the Regular Army on 14January 1976 for a period of 3years. He completed his training and was awarded military occupational specialty (MOS) 11B (Infantryman). He served in Germany from 6July 1976 to 3May 1977.

7. He was counseled for:

* misconduct in the barracks
* making false accusations
* failing to follow instructions
* failing to participate in the unit physical training program
* being disrespectful toward a noncommissioned officer (NCO)
* assaulting another Soldier

8. He received nonjudicial punishment on four occasions for:

* being disrespectful in language toward an NCO
* failing to go at the time prescribed to his appointed place of duty
* assaulting an NCO
* wrongfully using another Soldier’s military meal pass with the intent to defraud and for the procurement of rations

9. He was convicted by a special court-martial of being disrespectful in language toward an NCO and for assaulting an NCO.

10. He provided a StandardForm93 (Report of Medical History), dated 30January 1979, which shows he reported:

* “At the present my health is fine”
* he had foot trouble his feet ache in hot weather post cold weather injury

11. He was honorably released from active duty (REFRAD) on 22 March 1979 in the rank of SP4 for completion of his required active service and he was transferred to U.S. Army Reserve Control Group (Reinforcement) to complete his remaining service obligation.

12. Army Regulation 635-200, chapter 2, in effect at the time, pertained to discharge or release from the Active Army upon termination of enlistment, period of induction, and other period of active duty or active duty for training. It stipulated an individual enlisted, inducted, or ordered to active duty normally would be discharged or released from active duty on the date upon which he/she completes the period for which enlisted, inducted, or ordered to active duty.

13. Title10, U.S.Code, chapter61, provides for disability retirement or separation for a member who is physically unfit to perform the duties of his or her office, rank, grade, or rating because of disability incurred while entitled to basic pay.

14. 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. The unfitness must be of such a degree that a Soldier is unable to perform the duties of his or her office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his or her employment on active duty.

15. Army Regulation 635-40 states disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of physical disability incurred or aggravated in service. It states 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 Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.

16. Title38, U.S.Code, sections310 and 331, permit the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA, however, is not required by law to determine medical unfitness for further military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.

DISCUSSION AND CONCLUSIONS:

1. The evidence shows the applicant was honorably REFRAD on 22March 1979 upon completion of his required active service. There is no evidence his separation was not accomplished in compliance with applicable regulations. Therefore, there is no basis for revoking his 22March 1979 separation.

2. The evidence shows he was serving in the rank/grade of SP4/E-4 at the time of his REFRAD. He contends he might have attained the rank of CSM had he remained in the Army. However, it would be purely speculative to presume that if he had remained in the Army he would have been selected for promotion to any higher grade. Therefore, there is no basis for granting his requested relief for reinstatement in the Army at the rank/pay grade of CSM/E-9.

3. His request for an MEB for frostbite injuries was carefully considered. It is acknowledged he was treated for cold weather injuries to his feet in 1976. However, there is no evidence that he was ever given a permanent physical profile for a foot condition. The medical evidence he provided shows he reported he had foot trouble on 30January 1979, but he also indicated his health was “fine.” More importantly, there is no evidence that shows he could not perform his military duties.

4. 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 Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating. The available evidence shows the applicant was fully capable of performing his military duties.

5. It is acknowledged the VA has granted him a 20percent disability rating for residuals of frostbite, left and right lower extremities. However, the rating action by the VA does not necessarily demonstrate an error or injustice on the part of the Army. The VA, operating under its own policies and regulations, and assigns disability ratings as it sees fit.

6. In view of the foregoing, there is no basis for granting the applicant’s request for an MEB.

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 AR20120018445, dated 15October 2013.

_____________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) AR20140000050

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ABCMR Record of Proceedings (cont) AR20140000050

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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

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