MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 29 January 2002
         DOCKET NUMBER: AR2001062894

         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
Mr. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Mr. Melvin H. Meyer		Member
Ms. Karen A. Heinz		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 the separation document (DD Form 214) of her deceased husband, a former service member (FSM), be corrected to coincide with the FSM’s Department of Veterans Affairs (VA) disability claim file.

APPLICANT STATES: In effect, that the separation document of the FSM should be corrected as follows: item 11 (Type of Transfer or Discharge), should be corrected to read, “retired-100% disabled service connected; item 28
(VA Claim Number), should be corrected to add the Department of Veterans Affairs (VA) disability claim number; and the disability entry in item 30 (Remarks), should be corrected to read, “service connected disability-100% rate.” In addition, the applicant requests that the FSM’s DD Form 214 be reviewed and any corrections be made in order for the separation document to correspond to the FSM’s VA disability claim records. The following documents were provided in support of the application: the FSM’s death certificate, confirming he died on
23 May 2000; a VA letter, dated 1 February 1985, indicating that the FSM began receiving VA benefits at the 100 percent rate on 19 March 1971; and a copy of a VA letter, dated 5 January 1989, certifying that VA records indicated that the FSM was rated 100 percent disabled due to service connected conditions.

EVIDENCE OF RECORD: The FSM’s military records show:

On 26 June 1969, he was inducted into the Army of the United States for 2 years. He successfully completed training and was awarded military occupational specialty 11B (Infantryman) and the highest rank he held while serving on active duty was specialist four/E-4 (SP4).

The record also shows that the FSM was assigned to the Republic of Vietnam (RVN) and arrived there for duty on 26 November 1969. On 10 December 1969, he was further assigned to Company C, 2^nd Battalion, 327^th Infantry Regiment, for duty as a rifleman.

Item 40 of the FSM’s Enlisted Qualification Record (DA Form 20) confirms that on 25 March 1970, he was wounded in action and received multiple fragmentation wounds to his left hip and right chest and abdomen, which resulted in loss of liver and hemoneumotmorax.

On 7 April 1970, as a result of being wounded, he was medically evacuated to the 249^th General Hospital, Japan, and on 4 May 1970, he was further medically evacuated to Madigan General Hospital, Washington.

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On 11 February 1971, a Physical Evaluation Board (PEB) was convened at San Francisco, California, to consider the applicant’s case. The PEB proceedings indicated that the applicant was determined to be physically unfit with a recommended combined disability rating of 50 percent and it recommended that he be permanently retired.

On 17 February 1971, the FSM concurred with the findings and recommendations of the PEB and confirmed that he had received a full explanation of the results of the findings and recommendations and of his legal rights pertaining thereto and he waived a formal hearing of his case.

On 12 March 1971, The Adjutant General (TAG) of the Army approved the retirement of the FSM. Having determined that the FSM was permanently disabled, the TAG also published Letter Orders Number D 3-342, which authorized the FSM’s release from assignment and duty, and directed his placement on the Retired List, in the rank and pay grade of specialist four/E-4 (SP4/E-4), with a percentage of disability of 50 percent.

A Data for Retired Pay (AGPZ Form 977), dated 12 March 1971, that was prepared on the FSM during his retirement processing, confirms that he was being placed on the Retired List on 19 March 1971, in the rank and pay grade of SP4/E-4, and that his percentage of disability was 50 percent.

A DD Form 214, issued to and authenticated by the FSM with his signature on the date of his separation, confirms that on 18 March 1971, he was honorably released from active duty under the provisions of Title 10 of the United States Code, section 1201 (10 USC 1201), by reason of permanent disability. This document also verifies that on the date of his separation, the FSM had completed a total of 1 year, 9 months, and 1 day of active military service and held the rank and pay grade of SP4/E-4. Item 30 (Remarks) contains an entry “Disability 50%,” which confirms this was the disability rating granted the FSM upon his release from active duty for the purpose of being placed on the Retired List.

Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for members upon retirement, discharge, release from active duty, or control of the active Army. It also establishes standardized policy for the preparation and distribution of the DD Form 214. It states, in effect, that the information entered in the DD Form 214 will be an accurate portrayal of the member’s most recent period of active duty service and reflect the information as it is at the completion of that period of service.

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 office, rank, grade or rating because of disability incurred while entitled to basic pay.

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 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, the disability rating granted through the PEB process may differ from that awarded later by the VA.

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 Board notes the applicant’s request for the correction of the FSM’s separation document to reflect the information currently contained in the FSM’s VA claim file record. However, while the Board wishes to acknowledge the outstanding service and contributions of the FSM and to express its sympathy to the applicant on the loss of her husband, it finds an insufficient evidentiary basis to grant this requested relief.

2. 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.

3. The evidence of record confirms that the DD Form 214 issued to the FSM at the time of his release from active duty for the purpose of retirement was prepared and issued in accordance with the applicable regulation. Further, it confirms that the disability rating information contained in the FSM’s separation document accurately reflects the PEB findings and recommendations pertaining to him, with which he concurred at the time.

4. In addition, the Board finds no reason to conclude that not changing the information contained in the DD Form 214 of the FSM to coincide with the information contained in the VA claim file record would result in an injustice being served upon the applicant. Thus, the Board concludes that no effective relief or benefit to the applicant would result from the requested changes.

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5. For historical purposes, the Army has an interest in maintaining the accuracy of its separation documents. The information contained in those documents should reflect the conditions and circumstances that existed at the time it was created. Therefore, lacking evidence of a material error or injustice, the Board concludes it is neither necessary or appropriate to change the information contained in the DD Form 214 of the FSM at this time.

6. 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

__AAO__ _ _MHM__ __KAH DENY APPLICATION

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

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INDEX

CASE ID	AR2001062894
SUFFIX
RECON
DATE BOARDED	2002/01/29
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	1971/03/18
DISCHARGE AUTHORITY	10 USC 1201
DISCHARGE REASON	Disability
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 1021	100.0000
2.
3.
4.
5.
6.