2. In effect, the applicant requests physical disability retirement, and all his awards and decorations. He states that he was physically handicapped in both legs and his back at the time of his discharge and also had hypertension and post traumatic stress disorder (PTSD).
3. The applicant entered the Army on 31 March 1964, completed training and was assigned an artillery unit in Hawaii, later transferring to Thailand, and returning to Hawaii with his unit in September 1965. In January 1966 he was assigned to Vietnam, completed his tour of duty, and was discharged on 18 January 1967.
4. The applicant reenlisted on 29 November 1968, was assigned to Fort Riley, Kansas, then to an artillery unit in Germany, and in November 1970 returned to Vietnam. He completed his tour and was assigned to Fort Hood, Texas. He was discharged on 23 July 1973.
5. The applicants DD Forms 214 (Report of Transfer or Discharge) show that he was awarded the National Defense Service Medal, the Vietnam Service Medal with 2 bronze service stars, the Vietnam Campaign Medal, the Army Commendation Medal with first oak leaf cluster, and the Purple Heart. The applicant was also awarded the Combat Infantryman Badge, the Good Conduct Medal, and the Republic of Vietnam Gallantry Cross with Palm Unit Citation, which are not shown on his DD Form 214. During his two tours in Vietnam, the applicant participated in five campaigns. Award of the Vietnam Service Medal with 2 bronze service stars credits the applicant with participation in only two campaigns.
6. A 2 April 1973 report of medical examination indicates that the applicant was medically qualified for separation with a physical profile of 1 1 1 1 1 1. The applicant stated that he was in fair health.
7. On 26 February 1993 the VA denied the applicants claim for service connected disability for a neck injury, vein problem in legs, eye condition, combat wounds to legs and a stomach problem. The applicant was awarded a zero percent
service connected disability rating for a shrapnel wound to the back. The VA denied the applicants claim for increased service connected compensation for hypertensive heart disease, PTSD, and hearing loss.
8. Army Regulation 40-501, paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.
9. Army Regulation 635-40, paragraph 2-2b, as amended, provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties 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.
10. 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.
CONCLUSIONS:
1. The applicant was awarded the Combat Infantryman Badge,
the Good Conduct Medal, and the Republic of Vietnam Gallantry Cross with Palm Unit Citation. He participated in five campaigns during his two tours in Vietnam and should
have been awarded the Vietnam Service Medal with one silver service star (NOTE: A silver service star is awarded in lieu of five bronze service stars). All of the applicants authorized awards should be shown on his DD Form 214.
2. The applicant's continued performance of duty raised a presumption of fitness which he has not overcome by evidence of any unfitting, acute, grave illness or injury concomitant with his separation.
3. The medical evidence of record indicates that the applicant was medically fit for retention at the time of his separation. He has submitted no probative medical evidence to the contrary.
4. The fact that the VA, in its discretion, has awarded the applicant a disability rating is a prerogative exercised within the policies of that agency. It does not, in itself, establish physical unfitness for Department of the Army purposes.
5. An award of a VA rating does not establish entitlement to medical retirement or separation. The VA is not required to find unfitness for duty. Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected. Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.
6. In view of the foregoing findings and conclusions, it would be appropriate to correct the applicants records as recommended below.
RECOMMENDATION:
1. That all of the Department of the Army records related to this case be corrected by showing the individual concerned was awarded the Combat Infantryman Badge, the Good Conduct Medal, the Republic of Vietnam Gallantry Cross with Palm Unit Citation, and the Vietnam Service Medal with one silver service star.
2. That so much of the application as in excess of the foregoing be denied.
BOARD VOTE:
GRANT AS STATED IN RECOMMENDATION
GRANT FORMAL HEARING
DENY APPLICATION
CHAIRPERSON
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