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ARMY | BCMR | CY1980-1989 | 8808383
Original file (8808383.rtf) Auto-classification: Denied
APPLICANT REQUESTS: In effect, reconsideration of his request that his records be corrected to show that he was retired or separated by reason of physical disability, rated at 100 percent, because he has been rated by the VA. Additionally, he requests his records be corrected to show (1) entitlement to award of the Purple Heart (PH); (2) that he was exposed to Agent Orange; and, (3) that he had Post-traumatic Stress Disorder (PTSD).
APPLICANT STATES : (1) that he currently rated at 60 percent service-connected (SC) disabled, with 100 percent unemployability, by the VA; (2) that he is entitled to award of the PH, and other medals earned, for injuries received during temporary duty (TDY) to the Republic of Vietnam (RVN); (3) that incomplete documentation cost him and his family benefits and considerable hardship; (4) that he did not take his discharge willingly and has fought the VA for years and finally succeeded in obtaining SC disability compensation; (5) that he was coerced into signing his paperwork for discharge because his superiors wanted to meet a deadline; (6) that his children were robbed of a chance for a college education; (7) that, while assigned to Okinawa, he was TDY to RVN and blown out o his truck by enemy fire which injured his back and was treated at field hospital, at Cam Rahn Bay hospital, and finally, in Okinawa. He alleges he was hauling 55 gallon drums of Agent Orange defoliant to an airstrip.

COUNSEL CONTENDS : Counsel was silent on the issues.

EVIDENCE OF RECORD : Incorporated herein by reference are military and medical records which are summarized in a memorandum presented before this Board on 26 July 1989 (COPY ATTACHED).

On 31 January 1962, he was inducted into the Army of the United States and served until he was honorably separated on 30 January 1964, a period of 2 years, in pay grade E-3. He completed his required training and was awarded MOS 640 (Light Vehicle Driver). His active service was spent at Forts Leonard Wood, Missouri and Polk, Louisiana.

On 13 October 1964, after being in the inactive Army Reserve for a period of 8 months and 12 days, he enlisted, in pay grade E-2, in the Regular Army, for a period of 3 years and subsequently for another 6 years. His MOS was changed to 64B (Heavy Vehicle Driver). He was promoted to pay grade E-5, effective 30 March 1966.

During the period 15 March 1965-6 September 1966, he served in Okinawa.

In 1965, according to VA medical records, the indicated that he fell off a truck and injured his lower back. No fractures were sustained. The facts pertaining to this accident are not in the available records.

On 31 October 1969, a Medical Evaluation Board recommended he be given a permanent physical profile of L3.

On 17 October 1972, after being ordered to a new assignment overseas, the applicant voluntarily declined to reenlist or extend his enlistment to attain sufficient time remaining in service to allow him to complete an overseas tour of duty. He was advised that this action would make him ineligible for further military service, to include reenlistment.

On 1 June 1973, a physical examination cleared the applicant for separation. He stated that his health was good, but he had back problems.

On 16 July 1973, an orthopedist diagnosed the applicant as having degenerative disk disease and fund him fit for duty in accordance with chapter 3-3b, AR 40-501.

On 12 October 1973, he was honorably discharged, in pay grade E-5, under AR 635-200, chapter 4, based on the expiration of his term of service. His Report of Separation indicates that he had 11 years of creditable service and 8 months and 12 days of inactive Army Reserve service. He was entitled to award of the Good Conduct Medal and the National Defense Service Medal.

On 20 March 1974, a VA Rating Decision awarded the applicant a SC disability rating of 10 percent for mild degenerative changes of the L5-S1 disc.
On 27 February 1976, a VA Rating Decision increased his rating to 20 percent, for lumbosacral strain and arthritis, where it has remained, except for brief periods when he was hospitalized for operations.

Title 38, United States Code, sections 310 and 331, permits 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. Consequently, due to the two concepts involved, an individual’s medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.
Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rated 30 percent disabling.

AR 600-8-22, Military Awards, indicates, in pertinent part, that the PH is awarded to soldiers who have been wounded or injured as a direct result of hostile action. They must have been treated by a medical officer and a records of that treatment must have been made.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

 1. In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.

2. The applicant has failed to submit evidence that would satisfy the aforementioned requirement.
3. The evidence of record indicates that the applicant was injured by falling off a truck in Okinawa, not by being blown up as a result of hostile action in the RVN. The applicant has furnished nothing to refute this evidence.

4. The medical evidence clearly shows that he was fit for duty.

5. The applicant voluntarily declined to take appropriate action to remain reenlistment eligible.

6. There is no evidence that the applicant (1) served in the RVN; (2) was exposed to Agent Orange; or, (3) had PTSD, since he did not serve in a combat zone.

7. The applicant’s allegations that his children were deprived of a college education or that incomplete documentation cost him and his family benefits is a mute point.

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

DETERMINATION : The original decision by this Board is reaffirmed.

BOARD VOTE :

GRANT

GRANT FORMAL HEARING

DENY APPLICATION




                                                      Karl F. Schneider
                                                      Acting Director

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