MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 15 January 2002
         DOCKET NUMBER: AR2001061137

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

Mr. Carl W. S. Chun		Director
Ms. Joyce A. Wright		Analyst

The following members, a quorum, were present:

Ms. Irene N. Wheelwright		Chairperson
Mr. Hubert O. Fry, Jr.		Member
Mr. Donald P. Hupman, Jr.		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

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

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APPLICANT REQUESTS: In effect, that his honorable discharge be changed to show that he was separated by reason of physical disability due to wounds received in combat.

APPLICANT STATES: That after receiving wounds in combat on 20 February 1968, he remained hospitalized at Walter Reed General Hospital in Washington, DC, and was discharged without counseling. He also states that he was approved for a 70 percent disability from the Veterans Administration (VA) effective 23 July 1968. In support of his application, he submits a copy of his DD Form 214 (Report of Transfer or Discharge) and a copy of his Veterans Benefit Award, dated 11 March 1969.

EVIDENCE OF RECORD: The applicant's military records show he enlisted on 25 August 1966. He served in Vietnam from 28 February 1967 to 28 February 1968.

His authorized awards include the Purple Heart and Combat Infantryman Badge.

The applicant underwent a separation medical examination on 15 July 1968, and was provided with a 131111 physical profile. The doctor did not recommend the applicant for a Medical Evaluation Board (MEB) or any form of physical disability processing. He was recommended for orthopedic and physical medicine follow-up.

The applicant’s records contain a copy of a SG Form 84-R (Clinical Record Cover Sheet), dated 22 July 1968, which shows that the applicant was admitted to Walter Reed General Hospital in Washington, DC on 8 March 1968, and was discharged on 22 July 1968. He was diagnosed as having “wounds, fragment, multiple, of chest and both upper extremities with median nerve injury incurred while in action against the enemy on 20 February 1968.” He was also diagnosed as having a “hematoma (tumor containing effused blood), subcutaneous (situated or occurring below the skin), incurred in treatment of multiple fragment wounds
of chest”, and palsy (paralysis), median nerve secondary to neuroma
(a tumor or new growth largely made up of nerve cells and nerve fibers) incontinuity of left median nerve following trauma as in the first diagnosis. This form also shows that the applicant was discharged with a physical profile of 131111.

The applicant was honorably discharged on 22 July 1968, and was transferred to the USAR.

The applicant’s records contain a copy of a VA Rating Decision, dated 24 September 1968, which shows that he was granted a 10 percent disability rating for residuals of a shell fragment wound (SFW) to his left arm.

The applicant’s records also contain a copy of a VA Rating Decision, dated 3 January 1969, which shows that the applicant was granted a 70 percent disability rating for loss of use of his left hand and a 10 percent disability rating for a tender scar, right axilla (armpit), for a combined rating of 70 percent disability for his service connected conditions.

The applicant provided a copy of his Veterans Benefit Award, dated 11 March 1969, which shows dates of monetary changes in his monthly benefits.

Army Regulation 40-501, chapter 7, physical profiling, provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted. Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES): P-physical capacity or stamina, U-upper extremities, L-lower extremities, H-hearing and ears, E-eyes, and S-psychiatric. Numerical designator "1" under all factors indicates that an individual is considered to
possess a high level of medical fitness and, consequently, is medically fit for any military assignment. Numerical designators "2" and "3" indicate that an individual has a medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military duty.

Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his/her office, rank, grade, or rating because of a disability incurred while entitled to basic pay.

Army Regulation 635-40, paragraph 2-2b, as amended, provides that when a member is being separated by reasons other than physical disability, his/her continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he/she was unable to perform his/her 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.

Title 38, United States Code, section 310 and 331, permits the VA to award compensation for disabilities which were incurred in or aggravated by active service.





An award of a VA rating does not establish entitlement to medical retirement or separation from the Army. Operating under its own policies and regulations, the VA, which has neither the authority nor the responsibility for determining medical unfitness for military duty, awards ratings because a medical condition is related to service ("service-connected") and affects the individual's civilian employability. Furthermore, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.

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

1. The evidence of record clearly shows that the applicant received wounds on 20 February 1968, and remained hospitalized at Walter Reed General Hospital.
However, the applicant has failed to show, or provide evidence which shows,
that he was not counseled prior to his discharge.

2. The evidence of record shows that the applicant was administered a separation medical examination with no disqualifying defects noted and a
131111 profile. The evidence of record also shows that on 22 July 1968, the date of his discharge from Walter Reed Army General Hospital, competent medical authorities determined that he was qualified for separation. There is no evidence in the applicant’s record to show that a MEB was considered or requested by competent medical authorities prior to his discharge.

3. The applicant’s service records do not indicate any medical condition incurred while entitled to receive basic pay which was so severe as to render the applicant medically unfit for retention on active duty.

4. 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.









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

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

_inw___ __dph____ _hof___ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2001061137
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020115
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	19680722
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 177
2.
3.
4.
5.
6.