PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 29 January 2002
         DOCKET NUMBER: AR2001061530


         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
Mr. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Mr. Melvin H. Meyer		Member
Ms. Karen A. Heinz		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 the records of her deceased husband, a former service member (FSM), be corrected to show that the cause of his death is service connected and that he be issued the Bronze Star Medal that he was awarded.

3. The applicant states, in effect, that the FSM was wounded in the right leg in 1944 by a machine gun bullet while serving on the Metz line in Germany. The bullet was not removed from his leg until 1994. As a result, he had lead poisoning of his body. She also states that the FSM was also involved in the A-Bomb testing at Eniwetok in 1958 and immediately began to experience health problems. She also states that the FSM had a hernia and nothing was done about it and that the FSM was awarded a BSM and never received it. In support of her application she submits a copy of the FSM’s death certificate, copies of his reports of separation (WD AGO Form 53-55 and DD Form 214).

4. The FSM’s military records show that he was inducted in Chicago, Illinois on 8 March 1943 and entered active duty on 15 March 1943. He departed for the European Theater of Operations (ETO) on 24 August 1944 and was wounded in the leg in France on 8 November 1944 while participating in the Northern France Campaign. He returned to the United States on 9 January 1945 and was assigned to Wakeman Convalescent Hospital, Camp Atterbury, Indiana.

5. He was discharged in the rank of private first class (PFC) on 18 September 1945, with a Certificate of Disability for Discharge. His records show that he was awarded the Combat Infantryman Badge, the European-African-Middle Eastern Campaign Ribbon and the Good Conduct Ribbon.

6. He enlisted in the Regular Army on 13 May 1948 at Fort Knox, Kentucky, served all of his service in the Continental United States and was honorably discharged in the rank of sergeant on 12 May 1951. His DD Form 214 shows that he was awarded the BSM for his World War II service.

7. He reenlisted the following day, remained on active duty through a series of continuous reenlistments and was honorably released from active duty in the rank of master sergeant (E-7) on 30 April 1966. He was placed on the Retired List effective 1 May 1966 and had served 20 years, 5 months and 22 days of total active service.

8. A review of his records also shows that he was awarded the Purple Heart for his wound of 8 November 1944; however, there is no indication that it was ever entered on any of his separation documents. His records also show that at the time of separation the FSM underwent a medical and physical examination and was deemed qualified for separation. The only defect noted at the time was stiffness to the right ankle, secondary to trauma.
The FSM died on 2 February 1997 at the age of 72. The cause of death was determined to be chronic obstructive lung disease.

9. The medical documents submitted by the applicant date back to as early as 1991, when the FSM began seeking treatment from civilian physicians for a long-standing history of chronic obstructive pulmonary disease. While the physicians indicate in 1992 that he had stopped smoking and was breathing easier, they make no mention of the resultant cause of his disease or make any reference to its origin date.

10. Title 38, Unites States Code, sections 310 and 331, permits the Department of Veterans Affairs (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.

11. Army Regulation 635-40, Physical Evaluation for Retention, Retirement or Separation, provides, in pertinent part, that 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 they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. Such determination are made prior to separation and determine the method by which individuals will be separated.

CONCLUSIONS:

1. The Board has noted the applicant’s request that the cause of her husband’s death be changed to reflect that it was service-connected; however, it is not within the Board’s purview to make such a determination at this point. At the time of the FSM’s death, he had been retired by reason of length of service for over 30 years. Accordingly, any determination as to whether his death was service-connected, would not be a military record, but in all likelihood a VA determination. This Board does not have jurisdiction over VA records.

2. In any event, the applicant has failed to show through the evidence of record or the evidence submitted with her application, that the cause of the FSM’s death was in fact service-connected. Notwithstanding the lack of jurisdiction of the Board to make such a correction, there appears to be no basis for such a determination because he was not on active duty at the time of his death nor is there a military record to that effect.

3. However, the Board does find that the FSM was awarded the Purple Heart and that his records should be corrected accordingly.

4. The Board also finds that he was awarded the Bronze Star Medal for meritorious service during World War II and that it would be in the interest of justice to issue him (next of kin) that medal at this time.

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 showing that the individual concerned was awarded the Purple Heart and by issuing him (via next of kin) a Bronze Star Medal Set.

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

BOARD VOTE:

___mm__ __ao____ __kah___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ____Arthur A. Omartian____
                  CHAIRPERSON

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INDEX

CASE ID	AR2001061530
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/01/29
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1. 177	108.0000/PD
2. 60	107.0014/BSM
3. 61	107.0015/PH
4.
5.
6.