MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 16 May 2002
         DOCKET NUMBER: AR2001063539

         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:

Mr. Fred N. Eichorn		Chairperson
Ms. Paula Mokulis		Member
Mr. Roger W. Able		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: That his honorable discharge be changed to show that he was retired by reason of physical disability.

APPLICANT STATES: That his Physical Evaluation Board (PEB) voted 2 to 1 for a medical retirement; however, the reviewing authority supported the dissenting vote, a medical officer, who claimed that his disabilities were only associated with his right hand and that would improve to the point that no disability would exist. In support of his application, he submits copies of: three letters pertaining to the
reevaluation of his Veterans Administration (VA) claim; a letter from his physician; a letter from the VA Adjudication Officer; a copy of his DD Form 214 (Report of Separation from the Armed Forces of the United States); and a copy of his PEB Proceedings.

EVIDENCE OF RECORD: The applicant’s military records were lost or destroyed in the National Personnel Records Center fire of 1973. Records available to the Board were obtained from alternate sources and show he was appointed as a second lieutenant in the USAR on 9 June 1951, and was ordered to active duty on 20 August 1951. He served in Korea for 4 months and 26 days.

The applicant’s records contain several copies of Surgeon General’s Office (SGO) Hospital Listings which show that the applicant was diagnosed as
having: a fractured, compound, comminuted (divided into small parts), with nerve involvement on his metacarpal (part of the hand between wrist and fingers) bones and phalanges (any bone of a finger or toe); diseases of muscle, tendon (the fibrous cord of connective tissue in which the fibers of a muscle end and by which a muscle is attached to a bone or other structure) and fascia (a sheet or band of fibrous tissue which covers the body under the skin and invests the muscles and certain organs) on his hands and fingers; a head wound, lacerated, missile with no nerve or artery involvement; and a thigh wound, penetrating, missile with no nerve or artery involvement.

The applicant’s medical records are unavailable for review by this Board. The applicant appeared before a Medical Evaluation Board (MEB) on 15 June 1953, at the Valley Forge Army Hospital (VFAH) in Phoenixville, Pennsylvania; however, his MEB proceedings are unavailable for review by this Board.

The applicant was notified on 17 June 1953, that his case would be reviewed by a PEB on 19 June 1953, at VFAH.

On 19 June 1953, the applicant appeared before the PEB and was represented by counsel. The PEB considered the applicant’s condition of limitation of motion of ring and little fingers of the right (major) hand and mild paralysis of the ulnar



(the inner and larger bone of the forearm, on the side opposite that of the thumb) digital nerves. The PEB stated that the applicant’s unfitness was not the result of intentional misconduct or willful neglect, was not incurred during a period of unauthorized absence, and that his condition was 20 percent disabling. The PEB determined that the applicant’s condition was permanent, that his unfitness was the proximate result of the individual’s performance of active duty, and that the applicant became physically unfit to perform his duties on 25 November 1952.

The President, a medical member of the Board, dissented and believed that the applicant was fit for duty. He stated that the applicant’s entire disability was limited to his right hand and that the injury was actually through the metacarpals of the 4th and 5th fingers. He also stated that, in his opinion, the applicant’s condition would improve to a point where no disability existed and recommended that the applicant be found fit for duty.

On 22 June 1953, the applicant submitted a rebuttal to the findings and recommendations of the PEB. He stated that he disagreed specifically with the recommendations of the PEB, which stated that he was physically unfit by virtue of a disability of less than 30 percent. He also disagreed wholly and entirely with the dissenting opinion of the President, a member of the PEB, who announced in his opinion that he was physically fit for further service. He had continuous hospitalization due to his wounds and two separate operations for his injury to his hand. He had pursued extensive physical therapy for rehabilitation of his hand impairment. In the opinion of his Ward Officer and MEB, who met on his case on 15 June 1953, he had a partial permanent disability that did not warrant his retention on active duty. He was in complete agreement with this opinion and did not feel that he could perform further duty by virtue of his physical impairment.

The applicant had further noted that his clinical abstract stated, “Initial wounds consisted of compound fractures of the proximal (nearest, closer to any point of reference) phalanx of the long finger, etc” and further stated, “there was slight limitation of flexion (the act of bending or condition of being bent) of the long finger.” With reference to his long finger, he was unable to activate the first joint of his finger and experienced sharp pains whenever he endeavored to activate the finger at the middle joint and he was unable to place the tip of his finger against the midpalmer crease. As a result, he felt that his impairment was considered on the basis of his impairment of his two fingers rather than three fingers. He requested that the PEB give full consideration to his letter of rebuttal and to stated facts. With the disability allowed for his paralysis of his ulnar digital nerve which produces a 40 percent loss of sensation to the area of his small finger, he requested that his hand impairment be considered on the basis of limitation of motion to three fingers of his right (major) hand, and that he be found physically unfit for further service by a disability percentage of 30 percent or more.

On 29 June 1953, the Adjutant General (AG) responded to the applicant’s
rebuttal. He stated that the Army Physical Review Council, (a board appointed by the Secretary of the Army), reviewed the applicant’s case. The AG stated that the evidence of record failed to establish a sufficient degree of disability upon which a finding of physical unfitness could be made. The applicant was considered fit for duty. The AG also stated that prior to final action on the applicant’s case, that the applicant may desire to render a rebuttal based on the response, and that a written statement must be prepared within 7 days after receipt of this communication. If the applicant did not desire to exercise his right of rebuttal, that a statement must be made to that effect by endorsement thereon. If a written statement was not received by 15 July 1953, final action would be taken by the Secretary of the Army on the PEB proceedings in his case.

On 7 July 1953, the applicant submitted a rebuttal to the AG’s letter. He stated that he disagreed with the findings that he was physically fit for further duty and contended that he was physically unfit for service. He based his contentions on his personal knowledge of his impairment and the limitations that arose
therefrom, as well as the decision of the three medical officers, who constituted a Medical Board on his case, and on the recommendations of the PEB, which convened in his case at VFAH. He also stated that he failed to understand the reasoning for the finding of physical fitness in his case and that he had shown evidence in his case that he had an impairment of the right (major) hand. He had a 50 percent loss of grip due to extreme limitation of motion in his little, ring, and long finger, an inability to make a clenched fist, and an over-all “clumsy” hand. He requested a reexamination of his impairment, by the Chief, Hand Sub-Section at VFAH, which further clarified his impairment. He further stated that he fully understood the present finding that he was considered fit for duty; however, it was not his desire to continue on active duty with his present impairment. His Ward Officer informed him that he could not expect any more than further minimal improvement for his impairment. He desired to be separated upon completion of the finding of his case and stated that his commitment would expire in August 1953. He concluded by stating that inasmuch as he now had an impairment as a result of line of duty injuries suffered in Korea, which was not present prior to his entry on active duty, he respectfully requested that consideration be given to his disability for his conditions and that findings be finalized at that time.

On 16 July 1953, after review of the PEB proceedings, the AG determined that the applicant was physically fit for active military service and that disposition of the officer would be made in accordance with the provisions of paragraph 38a(1), Special Regulations 600-450-5.

The applicant was honorably discharged on 25 July 1953, prior to the expiration of his obligation.
The applicant provided a copy of a letter from the VA, dated 31 December 1953, which made reference to his reopened disability compensation claim, under which payments were discontinued on 31 October 1953. Based on his recent
physical examination, it was determined that an increase combined rating of 40 percent was warranted for his disabilities, retroactive to the initial date of his award of 26 July 1953.

The applicant provided a copy of a letter from his physician dated 24 May 2001, who reviewed his files concerning his disabilities sustained during active duty. The applicant requested that his physician provide his professional opinion on several questions. His physician responded by stating that: his significant injuries were sustained to the right hand/fingers, left groin and scalp, and only the scalp wound had healed without residual sequela (any lesion or affection following or caused by an attack of disease); both right finger and left groin injuries were still clearly evident which left the applicant with long term disabilities; that his right hand finger and left groin had worsened through the years and there were major flexion contractures (a shortening or distortion) in his fingers which have resulted in difficulty with several important tasks. He also stated that over the years the applicant had developed episodes of left wrist tendonitis and left shoulder bursitis (a sac or saclike cavity filled with viscid fluid and situated at places in the tissues at which friction would otherwise develop) and that he had developed documented, progressive, bilateral sensorineural (any sensory nerve center) hearing loss of moderate degree.

Special Regulations 600-450-5, in effect at that time, prescribed the procedures for evaluation and determination of medical fitness, and disposition of members affected. Medical fitness as used therein included both physical and mental fitness as distinguished from administrative fitness. The medical evaluation of members to determine their medical fitness for retention on active duty was accomplished by means of appropriate medical authority and/or physical evaluation board. This regulation applied to members of the Regular Army, Organized Reserve Corps, and National Guard of the United States.

Paragraph 38a (1) pertained to disposition alternatives. It stated, in pertinent part, that those members who were determined to be both medically and administratively fit to perform the duties of their office, rank, grade, or rating based upon findings of the PEB would be returned to 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.

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

An award from the VA 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 Board notes that the applicant was recommended for a PEB by an MEB; however, his MEB proceedings are unavailable for review by this Board. He
appeared before a PEB and was represented by counsel. The PEB considered the applicant’s condition of limitation of motion ring and little fingers of his right hand and the mild paralysis of ulnar digital nerves. The PEB determined that the applicant’s condition was permanent, that his unfitness was the proximate result of the individual’s performance of active duty, and that he became physically unfit to perform his duties on 25 November 1952.

2. The President, a member of the PEB, dissented in a 2 to 1 vote and believed that the applicant was fit for duty, that his entire disability was limited to his right hand and that the injury was actually through the metacarpals of his 4th and 5th fingers. He also stated that, in his opinion, that the applicant’s condition would improve to a point where no disability existed and recommended that the applicant be found fit for duty.

3. The applicant submitted a rebuttal to the PEB’s findings and recommendations. He stated that he disagreed specifically with the recommendations of the PEB, which stated that he was physically unfit by virtue of a disability of less than 30 percent and that he disagreed entirely with the dissenting opinion of the President. He also stated that in the opinion of his Ward Officer and MEB, that he had a partial disability that did not warrant his retention on active duty and felt that he could not perform further duty by virtue of his physical disability. The applicant stated that his case should be given consideration based on the facts contained in his rebuttal.

4. The AG responded to the applicant’s rebuttal and stated that the evidence of record failed to establish a sufficient degree of disability upon which a finding of physical unfitness could be made. The AG stated that the applicant was considered fit for duty and that prior to final action on the applicant’s case, that he may desire to render a rebuttal based on this response.

5. The applicant responded to the AG’s letter and stated that he disagreed with the finding that he was physically fit for further duty and contended that he was physically unfit for service. He failed to understand the reasoning for the finding of physical fitness in his case and that he had shown evidence in his case that he had an impairment of his right hand, which was also clarified by a reexamination.

6. The applicant desired to be separated upon completion of the findings of his case and stated that his commitment would expire in August 1953, and requested that consideration be given to a disability for his condition.

7. The AG reviewed the PEB proceedings and determined that the applicant was physically fit for active military service and recommended that the applicant be returned to duty. The applicant was honorably discharged prior to the expiration of his service obligation. Based on the evidence provided; the applicant is not entitled to a change of his discharge to show that he was retired by reason of
physical disability.

8. The applicant applied to the VA after his discharge and was granted an increase combined rating of 40 percent for his service-connected disabilities.

9. The rating action by the VA does not necessarily demonstrate any error or injustice on the part of the Army. The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit. Any rating action by the DVA does not necessarily constitute an error or injustice on the part of the Army.

10. The Board notes the letter provided by the applicant’s personal physician, dated 24 May 2001, which provided an opinion on several questions pertaining to his disabilities sustained during active duty. However, his opinion does not show error or injustice which would warrant a change in his honorable discharge to retirement by reason of physical disability.

11. 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.




12. 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

__fe___ ___pm___ ___ra__ DENY APPLICATION

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

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INDEX

CASE ID	AR2001063539
SUFFIX
RECON
DATE BOARDED	20020516
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	19530725
DISCHARGE AUTHORITY	SR 600-450-5
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 177
2.
3.
4.
5.
6.