MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 5 March 2002
         DOCKET NUMBER: AR2001064938

         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
Mrs. Nancy Amos		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. Thomas B. Redfern, III		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: That his discharge be changed to a disability retirement.

APPLICANT STATES: That at the time of his separation he met the criteria for a disability retirement – medically unfit to continue military service due to combat injuries, manifested to a degree greater than 20 percent. He should have been afforded a Physical Evaluation Board (PEB).

EVIDENCE OF RECORD: The applicant's military records show:

He initially enlisted in the Regular Army on 8 July 1966. He completed basic combat training and advanced individual training and was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman). He completed basic airborne training. He was assigned to Co F, 52d Infantry, 1^st Infantry Division, Vietnam on 9 June 1968 as a senior scout observer. Apparently, the unit was redesignated as Company I (Rangers) 75^th Infantry, 1^st Infantry Division on 1 February 1969. There is no entry in item 40 of his Enlisted Qualification Record, DA Form 20, for this period but it appears he was wounded in action on 5 May 1969. General Orders 125, Headquarters, 93d Evacuation Hospital dated 6 May 1969 awarded him the Purple Heart for wounds received on this date. On 19 May 1969, he was assigned to the Medical Hold Detachment, 106^th General Hospital. He was assigned to the Medical Hold Company, Womack Army Hospital, Fort Bragg, NC on 2 June 1969 after being credited with four Vietnam campaigns. He was released from active duty on 21 August 1969 after completing 3 years, 1 month, and 13 days of creditable active duty. His DA Form 20, item 38 shows that his conduct and efficiency were rated as excellent throughout his enlistment. His Report of Transfer or Discharge, DD Form 214, shows he was awarded the National Defense Service Medal, the Parachutist Badge, the Vietnam Service Medal, and the Republic of Vietnam Campaign Medal.

On 2 August 1971, the applicant received a waiver for a medical disqualification (his separation Report of Medical Examination, SF 88, had listed diagnoses of postoperative colostomy closure, gunshot wound with multiple visceral injuries, and fractured teeth) and reenlisted.

On 18 September 1971, the applicant was assigned to Company C, 3d Battalion, 21^st Infantry, 196^th Infantry Brigade, Vietnam as an 11B20, automatic rifleman. He was reassigned to Company E, this unit on 1 October 1971. Special Orders 62, Headquarters, 196^th Infantry Brigade dated 2 March 1972 awarded him the Combat Infantryman Badge. On 28 March 1972, he was assigned to Company D, this unit. General Orders 60, Headquarters, 95^th Evacuation Hospital dated 4 May 1972 awarded him the Purple Heart 1^st oak leaf cluster after he stepped on a mine and incurred multiple fragment wounds to both legs and back and a fracture of the left os calcis (heel bone). General Orders 02050, Headquarters, 196^th Infantry Brigade dated 11 May 1972 awarded him the Bronze Star Medal with “V” device. On 13 May 1972, he was assigned to the Medical Hold Detachment, U. S. Army Hospital, Ryukyus after being credited with three Vietnam campaigns. He was medically evacuated to the Medical Hold Company, Womack Army Hospital, Fort Bragg, NC on 10 June 1972.

On 7 September 1972, the applicant was assigned to Company C, 1^st Battalion, 505^th Infantry, Fort Bragg, NC. His Enlisted Efficiency Report (EER) for the period May – November 1972 shows he was rated as an 11B4P, Assistant Armorer. He received four outstanding and two excellent ratings. Comments noted that his duty performance and efficiency were of the highest caliber and that he set high standards for himself and fulfilled them with ease.

On 13 March 1973, the applicant was approved for reclassification into MOS 54E (Chemical Staff Specialist) because his physical profile restrictions prohibited him from performing the duties of MOS 11B. A Primary MOS Reclassification Board had recommended him for reclassification into MOS 54E because the applicant had stated that he could perform the duties of this MOS worldwide and in a combat environment and the board felt that he was qualified to perform the duties of this MOS worldwide and in a combat environment.

On 27 March 1973, the applicant underwent a psychiatric evaluation. The applicant was found to know right from wrong and to adhere to the right and to possess no psychiatric disease or disorder which would warrant disposition under the physical disability system. He was found to have a severe characterological disorder resulting in extreme interpersonal discomfort, a problem he had been struggling with chronically. He had a low tolerance level for stress and frustration but was not incapable of recovering from the same.

On 5 November 1973, court-martial charges were preferred against the applicant charging him with being absent without leave (AWOL) for the periods 19 April to on or about 17 May 1973 and 22 May 1973 to on or about 5 November 1973.

On 5 December 1973, the applicant completed a separation physical examination. He was cleared by orthopedics, it was noted he had a permanent L-3 physical profile, and he was found qualified for separation. On his Report of Medical History, SF 93, the applicant noted his health as “good.”

On 29 November 1973, after consulting with legal counsel, the applicant voluntarily requested a discharge under the provisions of Army Regulation 635-200, chapter 10 for the good of the service in lieu of trial by court-martial. The applicant was advised of the effects of a discharge under other than honorable conditions and that he might be deprived of many or all Army and Veterans Administration benefits. He elected not to submit a statement in his own behalf. In the first endorsement, the applicant’s battalion-level commander noted that in the applicant’s particular case a chapter 13 separation for unsuitability would have been more appropriate but to expedite this case it would be in the best interest of the service to recommend approval of a chapter 10 discharge with a general discharge. In the second endorsement, the applicant’s brigade-level commander noted that the applicant’s unit had been preparing a chapter 13, unsuitability discharge but the recommendation was delayed due to the unit participating in a field training exercise. In the meanwhile, the applicant had departed AWOL. Because of the applicant’s emotional problems and his service in Vietnam, that commander recommended the applicant receive a general discharge.

On 14 January 1974, the appropriate authority approved the request and directed the applicant receive a general discharge.

On 24 January 1974, the applicant was discharged with a general discharge, in pay grade E-5, under the provisions of Army Regulation 635-200, chapter 10, discharge in lieu of trial by court-martial. He had completed a total of 5 years and 21 days of creditable active service and had 195 days of lost time.

Around January 1975, the Veterans Administration (VA) awarded the applicant a 90 percent combined disability rating for a nervous condition (30 percent); residuals, shell fragment wound, left and right lower leg (20 percent each); nerve damage, left and right lower leg (10 percent each); residuals, shell fragment wound right thigh and left os calcis (10 percent each) residuals, shell fragment wound left foot with muscle damage (10 percent); residuals, shell fragment wound, left thigh (30 percent); residuals, shell fragment wound, left shoulder (20 percent); and shell fragment wound, left buttock (0 percent).

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt. A discharge under other than honorable conditions is normally considered appropriate.

Army Regulation 635-40 governs the evaluation for physical fitness of soldiers who may be unfit to perform their military duties because of physical disability. It states that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the soldier reasonably may be expected to perform because of his or her office, grade, or rank. It states 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. When a soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the soldier is scheduled for separation or retirement, creates a presumption that a soldier is fit. Application of the Presumption of Fitness Rule does not mandate a finding of fit. The presumption is rebuttable and is overcome when the preponderance of evidence establishes the soldier was physically unable to perform adequately the duties of his or her office, grade or rank.

After a soldier has been enlisted, the soldier will not be declared physically unfit for military service because of disabilities known to exist at the time of the soldier’s acceptance for military service that have remained essentially the same in degree since acceptance and have not interfered with the soldier’s performance of effective military service. An enlisted soldier may not be referred for, or continue, physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service of under other than honorable conditions unless the general court-martial convening authority finds that the disability is the cause or a substantial contributing cause of the misconduct that might result in a discharge under other than honorable conditions.

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.

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.

Army Regulation 600-8-22 is the current regulation that prescribes Army policy and criteria concerning individual military awards. In pertinent part, it states that a bronze service star is worn on service ribbons (in this case, the Vietnam Service Medal), to denote each campaign credited. A silver service star is worn instead of five bronze service stars.

Department of the Army Pamphlet 672-3 shows that Company F, 52d Infantry was awarded the Republic of Vietnam Civil Actions Honor Medal, First Class Unit Citation for the period 20 December 1967 – July 1968. Company I, 75^th Infantry (Rangers) was awarded the Republic of Vietnam Civil Actions Honor Medal, First Class Unit Citation for the period February 1969 – 7 April 1970. The 3d Battalion, 21^st Infantry was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation for the period 1 March – 9 October 1971.

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. 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 Board notes that the applicant had a permanent L3 physical profile as a result of his second set of injuries received in combat. However, as late as November 1972 his EER showed that he was able to perform his military duties in an outstanding manner. In March 1973 he was reclassified out of MOS 11 into MOS 54E because his physical profile restrictions prohibited him from performing the duties of MOS 11B; however, a Primary MOS Reclassification Board and the applicant felt he could perform the duties of 54E worldwide and in a combat environment. He departed AWOL in April 1973 before this could be disproved. Since there is no evidence to show that he was medically unfit to perform his military duties, the Presumption of Fitness Rule has not been overcome.

3. In addition, the applicant could not be referred for physical disability processing once his chapter 10 action was started. Although he eventually separated with a general discharge, this regulatory provision authorizes a characterization of service of under other than honorable conditions. The Board presumes that the applicant’s orthopedic injuries were not the cause or a substantial contributing cause, of his departing AWOL. The Board notes that the applicant’s psychiatric evaluation diagnosed him as having a characterological disorder; however, he was found to know right from wrong and to adhere to the right and to possess no psychiatric disease or disorder which would warrant disposition under the physical disability system.

4. The applicant would not have been eligible for the injuries he received the first time he was wounded. Those disabilities were known to exist at the time he was accepted for reenlistment in August 1971 and there is not evidence to show they did not remain essentially the same in degree since his reenlistment and did not interfere with his performance of effective military service.

5. 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 in awarding a disability rating, only 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 considered insufficient to render him medically unfit for duty and yet be rated by the VA.

6. The applicant’s DD Form 214 for the period ending 21 August 1969 contains administrative errors/omissions with regards to his awards and decorations. He served during four campaigns his first tour in Vietnam and his DD Form 214 should have reflected he was authorized to wear four bronze service stars on his Vietnam Service Medal. He was awarded the Purple Heart during this period of service. He met the eligibility criteria for award of the Army Good Conduct Medal. He was assigned to two units during a period of time those units were awarded the Republic of Vietnam Civil Actions Honor Medal, First Class Unit Citation and his DD Form 214 should reflect these awards.

7. The applicant’s DD Form 214 for the period ending 24 January 1974 contains administrative errors/omissions with regards to his awards and decorations. He served during three campaigns during his second tour in Vietnam, for a total of seven campaigns, and his DD Form 214 should reflect he was authorized to wear one silver service star and two bronze service stars on his Vietnam Service Medal. He was awarded the Purple Heart 1^st oak leaf cluster. He was awarded the Bronze Star Medal with “V” device. He was assigned to a unit during a period of time that unit was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation and his DD Form 214 should reflect this award. In addition, his awards from his first DD Form 214 should be entered on this DD Form 214.

8. 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.

NOTE: The Army Review Boards Agency, Support Division will be directed to administratively correct the applicant’s records by awarding the applicant the Army Good Conduct Medal for the period 8 July 1966 – 7 July 1969; by amending his DD Form 214 for the period ending 21 August 1969 to delete the Vietnam Service Medal and to add the Vietnam Service Medal with four bronze service stars, the Purple Heart, the Army Good Conduct Medal, and two awards of the Republic of Vietnam Civil Actions Honor Medal, First Class Unit Citation; and by amending his DD Form 214 for the period ending 24 January 1974 to delete the Vietnam Service Medal, the Purple Heart, and the Bronze Star Medal and to add the Vietnam Service Medal with one silver and two bronze service stars, the Purple Heart 1^st oak leaf cluster, the Bronze Star Medal with “V” device, the Republic of Vietnam Gallantry Cross with Palm Unit Citation, the Army Good Conduct Medal, and two awards of the Republic of Vietnam Civil Actions Honor Medal, First Class Unit Citation.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__fne___ __tbr___ __dph___ DENY APPLICATION

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

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INDEX

CASE ID	AR2001064938
SUFFIX
RECON
DATE BOARDED	20020305
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	108.00
2.
3.
4.
5.
6.