PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 14 August 2001
         DOCKET NUMBER: AR2001057620


         I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mrs. Nancy Amos		Analyst

The following members, a quorum, were present:

Mr. Walter T. Morrison		Chairperson
Mr. Joe R. Schroeder		Member
Mr. Ronald E. Blakely		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests that his honorable discharge be changed to a medical retirement.

3. The applicant states that he was injured in Vietnam by a grenade explosion and was shot nine times. He was hospitalized in Vietnam and Japan and at Travis Air Force Base, CA and Reynolds Army Hospital, Fort Sill, OK. He was given orders to return to Vietnam while he was still in recovery. He was preparing to go again but was deleted from levy. He spent 7 or 8 months total in hospitals. His injuries were so extensive that his initial VA rating was 50 percent. His injuries progressed until the VA finally awarded him 100 percent. He contends that the severity of his injuries should have led the Army to consider him for a medical retirement. Supporting evidence is as listed on the DD Form 149.

4. The applicant’s military records show that he was inducted into the Army on 12 September 1967. He completed basic combat training and advanced individual training and was awarded military occupational specialty (MOS) 31B (Field Radio Mechanic).

5. The applicant arrived in Vietnam on or about 22 March 1968. He was assigned to Headquarters and Headquarters Company, 4^th Battalion, 23d Infantry Division, 25^th Infantry Division, presumably as a 31B (his Enlisted Qualification Record, DA Form 20, does not indicate his duty MOS).

6. The applicant was awarded the Bronze Star Medal with “V” Device for action on 26 May 1968, during which action he was severely wounded. His DA Form 20 shows that he was medically evacuated to Camp Zama, Japan on 13 June 1968 and to Reynolds Army Hospital Fort Sill, OK on 28 June 1968.

7. On an undetermined date, the applicant was assigned to Headquarters and Headquarters Battery, 3d Battalion, 38^th Artillery, Fort Sill, OK as an 05C, radio telephone operator. Orders dated 12 September 1968 show he was assigned to this unit when he was authorized separate rations effective 12 September 1968. Orders dated 21 November 1968 promoting him to Specialist Five, E-5 show he was assigned to this unit at the time. He was assigned to this battalion on 22 January 1969 when he qualified for award of the M14 sharpshooter badge.

8. On 21 April 1969, the applicant’s temporary L-3 profile was changed to a permanent L-3 profile due to laceration of the femoral nerve left leg with subsequent weakness vastus medialis. He was given assignment limitations of no running, jumping, or deep knee bends over five minutes.

9. On 12 September 1969, the applicant was released from active duty upon the expiration of his term of service. The Bronze Star Medal with “V” Device is not listed on his DD Form 214 and the Purple Heart is listed as “Purple Heard.” His DA Form 20 shows that his conduct and efficiency had been rated as “excellent” throughout his service.

10. Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability. The regulation defines “physically unfit” as unfitness due to physical disability. The unfitness is of such a degree that a soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.

11. The VA Schedule for Rating Disabilities (VASRD) is the standard under which percentage rating decisions are to be made for disabled military personnel. The VASRD is primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. Unlike the VA, the Army must first determine whether or not a soldier is fit to reasonably perform the duties of his office, grade, rank or rating. Once a soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VASRD. These percentages are applied based on the severity of the condition.

12. Title 38, U. S. 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.

13. Army Regulation 672-5-1, in effect at the time, provided policy and criteria concerning individual military decorations. It stated that the Army Good Conduct Medal was awarded for each 3 years of continuous enlisted active Federal military service completed on or after 27 August 1940 and, for the first award only, upon termination of service on or after 27 June 1950 of less than 3 years but more than 1 year. At the time, a soldier’s conduct and efficiency ratings must have been rated as “excellent” for the entire period of qualifying service.

14. Department of the Army Pamphlet 672-3 shows that the 4^th Battalion, 23d Infantry was awarded the Valorous Unit Award for the period 26 – 28 May 1968; the Republic of Vietnam Gallantry Cross with Palm for the period April 1966 – August 1968; and the Republic of Vietnam Civil Actions Honor Medal, First Class for the period 30 April 1966 – 21 January 1970.

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CONCLUSIONS:

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. The applicant has failed to submit evidence that would satisfy this requirement.

2. 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 regulation, assigns disability ratings as it sees fit. The VA is not required by law to determine medical unfitness for further military service, only to determine that a medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved (i. e., the more stringent standard by which a soldier is determined not to be medically fit for duty versus the standard by which a civilian would be determined to be socially or industrially impaired), an individual’s medical condition may be rated by the VA at one level whereas he was found to be medically fit for duty by the Army.

3. The Board notes that the applicant spent many months in the hospital. However, the evidence of record shows that he was reassigned to a unit for duty after his last hospitalization at Fort Sill, OK. With his physical profile he may not have been deployable to a combat area but duty in a garrison environment was not precluded by his assignment limitations.

4. The applicant met the eligibility criteria for award of the Army Good Conduct Medal. Also, he was awarded the Bronze Star Medal with “V” Device but this award was not listed on his DD Form 214. In addition, he was assigned to a unit during a period of time that unit was awarded the Valorous Unit Award, the Republic of Vietnam Gallantry Cross with Palm, and the Republic of Vietnam Civil Actions Honor Medal, First Class and so is entitled to those awards. His award of the Purple Heart is not properly listed on his DD Form 214.

5. In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected by awarding the applicant the Army Good Conduct Medal for the period 12 September 1967 – 11 September 1969.

2. That the applicant’s DD Form 214 be amended to delete the entry “Purple Heard” and to enter the Bronze Star Medal with “V” Device, the Purple Heart, the Army Good Conduct Medal, the Valorous Unit Award, the Republic of Vietnam Gallantry Cross with Palm, and the Republic of Vietnam Civil Actions Honor Medal, First Class.

3. That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:

__wtm___ __jrs___ __reb___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION



                           Walter T. Morrison
                  ______________________
                  CHAIRPERSON

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INDEX

CASE ID	AR2001057620
SUFFIX
RECON
DATE BOARDED	20010814
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(GRANT)
REVIEW AUTHORITY
ISSUES 1.	108.00
2.
3.
4.
5.
6.