MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 24 January 2002
         DOCKET NUMBER: AR2001065105

         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. George D. Paxson		Chairperson
Mr. Walter T. Morrison		Member
Mr. Richard T. Dunbar		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 a medical discharge.

APPLICANT STATES: He completed his separation physical on 8 February 1972. He was involved in a car accident on 2 April 1972. He sustained a concussion and severe head, neck, shoulder, and back injuries. His front teeth were chipped and cut through his upper lip. Broken glass cut his eye and glass was imbedded in the back of his head and his lower back. Some of the glass is still in his body to this day. After reviewing his medical records he noticed that he was not given thorough treatment for his injuries nor was he re-evaluated prior to his separating nor was he rated for his service-connected injuries prior to his separation. He feels his injuries at the time were serious enough to warrant a medical discharge. Because he was not rated prior to leaving the service he has been denied his service-connected benefits. He has yet to be compensated for his many years of pain and suffering caused by the injuries he sustained in the line of duty. There was an error made by the Army in his social security number (SSN). Some of his records, including his Report of Transfer or Discharge, DD Form 214, show his SSN as ___-83-____ instead of his correct ___-82-____.

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

He was inducted into the Army on 23 September 1969. His Record of Induction, DD Form 47, showed his SSN as ___-83-____. He was honorably discharged on 28 September 1969 for the purpose of immediately enlisting in the
Regular Army on 29 September 1969 for 3 years. His DD Form 214 for this period shows his SSN as ___-83-____. His Enlistment Contract, DD Form 4, showed his SSN as ___-83-____.

Most documents in the applicant’s Military Personnel Records Jacket show his SSN as ___-82-____ except for his DD Form 47 and DD Form 4, his enlistment orders, his release from active duty orders, and one set of attachment orders with amendment, which show his SSN as ___-83-____

The applicant apparently received an approved early release from the Army and apparently completed his separation physical in February 1972.

On 2 April 1972, the applicant was involved in an automobile accident and was treated for multiple abrasions with back pain. Extracts from his Outpatient Medical Record shows that he was walking when he was treated. A physical examination revealed abrasions with glass imbedded in his back and head. His back was within normal limits but sore. An abrasion was found on his right cornea. Glass was removed from his back, his wounds were cleaned and dressed, and his eye was protected and treated with a topical antibiotic.

The applicant was evaluated by ophthalmology for a corneal abrasion and possible glass fragment in the eye. His eye was dilated and found to be normal.
The applicant had his back lacerations dressing changed on 4 April 1972. He had palpable spasms in the back and neck at that time. His dressing was changed on 6 April 1972. No spasms or other abnormalities were noted at that time. On 11 April 1972 he was given a painkiller.

On 29 April 1972, the applicant was released from active duty. His DD Form 214 for this period showed his SSN as ___-83-____. This DD Form 214 was corrected on 26 July 1999 to show his SSN as ___-82-____.

The applicant stated in a 26 October 2001 claim with the Department of Veterans Affairs (VA) that he was treated by the VA Medical Center in May 1972 for his back, eye, head and shoulder injuries and on a continuous basis from 1972 until 1990. The only VA medical documents from this period provided were a 9 January 1980 certificate indicating the applicant had sinus problems; a 3 January 1979 certificate indicating he had a sore throat and rhinitis; a 5 April 1980 certificate indicating he had been treated for a trauma to his left finger and pain in the shoulder after falling against a table; a 23 May 1980 certificate indicating he had sutures removed from his finger; a 21 July 1975 certificate indicating he was treated for chest pain; a 12 May 1975 certificate indicating he had been diagnosed with bronchitis; an 8 January 1979 certificate indicating he had been treated for a respiratory illness; and a 24 September 1981 certificate indicating he had been treated for intermittent abdominal pain similar to “stress pain.”

On 21 August 1998, the applicant was examined by the Veterans Administration (VA) and he was diagnosed with degenerative joint disease in his knees, minimal degenerative changes in his lumbosacral spine, degenerative changes in his cervical spine, and no acute disease of the chest. He was apparently denied service connection for these conditions as he filed an appeal on 9 October 1998.

On 30 October 1998, the Social Security Administration found the applicant disabled from 12 February 1997 through 11 August 1998 after he developed pain and stiffness in his left shoulder and neck on 6 January 1997 while working on an assembly belt for Federal Express with a re-injury on 12 February 1997 when he fell on a patch of ice.

On 11 February 1999, the applicant was evaluated by St. John’s Mercy Medical Center for a complaint of shortness of breath, chest tightness, and cough. It was noted at this time that he had no visual problems in his eyes.

On 13 October 1999, the Social Security Administration found the applicant disabled since 14 December 1998 due to shortness of breath and injuries to his right wrist and hand, left shoulder, lower back, left knee, and left foot. It was established that he had past relevant work experience as an equipment operator, clothier, and senior customer service technician but he was unable to perform his past relevant work since 14 December 1998.

Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability. The regulation defines “physically unfit” as unfitness due to physical disability. The unfitness is of such a degree that a soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty. It states that disability 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.

The mission of the Veterans Benefits Administration is to provide benefits and services to veterans and their families in a responsive, timely and compassionate manner in recognition of their service to the nation. 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.

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. Any 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 regulations, 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 not be found to be unfitting by the Army and yet rated by the VA as disabling. Further, any action by the Social Security Administration concerning a determination of disability does not demonstrate an error on injustice on the part of the Army.

3. The Board notes the conditions for which the applicant was treated after his automobile accident. He was walking when he was treated. The abrasions on his back and head and cornea caused by broken glass were cleaned, the glass was removed where possible, and dressed. He later developed some back spasms and pain. There is no evidence to show he was incapacitated by these injuries and no evidence to show he was hospitalized either then or later by the VA to treat these injuries. The provided evidence shows that he was not treated for any conditions (degenerative changes in his spine) even remotely related to these injuries until more than 20 years later. On 11 February 1999, it was noted that he had no visual problems with his eyes.

4. There is no evidence to show that the applicant’s injuries rendered him unfit for duty or eligible for processing in the physical disability system.

5. The applicant’s SSN on his DD Form 214 for the period ending 29 April 1972 was corrected on 26 July 1999. His SSN on his DD For 214 for the period ending 28 September 1969 still needs to be corrected.

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.

NOTE: The Army Review Boards Agency, Support Division will be directed to administratively correct the applicant’s SSN on his DD Form 214 for the period ending 28 September 1969 to read ___-82-___.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__gdp___ __wtm___ __rtd___ DENY APPLICATION

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

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INDEX

CASE ID	AR2001065105
SUFFIX
RECON
DATE BOARDED	20020124
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	108.00
2.
3.
4.
5.
6.