MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 6 February 2003
         DOCKET NUMBER: AR2002073561

         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. Eloise C. Prendergast		Member
Mr. James E. Anderholm		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 retirement by reason of permanent disability be changed to show that he received an active duty (AD) retirement.

APPLICANT STATES: In effect, that his time served as a Prisoner of War (POW) should be included in his AD retirement. He also states that his records should reflect an AD retirement for length of service instead of retirement by reason of permanent disability. He further states that his letter order retirement orders show that he received an AD retirement and also lists "Enlisted Disability Retirement."

COUNSEL CONTENDS: The Veterans of Foreign Wars (VFW), as counsel for the applicant, contends that the applicant's retirement by reason of permanent
disability should be changed to show an AD retirement of 20 years.

EVIDENCE OF RECORD: The applicant's military records show he initially enlisted in the Oklahoma Army National Guard (OKARNG) on 1 September 1950. He continued to serve until he was honorably released from the
OKARNG on 24 November 1950.

He enlisted in the Regular Army (RA) on 7 April 1951.

The applicant 's records contain medical evidence which shows that the applicant was diagnosed as having a wound, missile, penetrating, chest and back, without major artery or nerve involvement, due to an enemy grenade on 1 September 1951. He received a complete physical and was found to be in good health. He
was transferred to Fort Hood, Texas for further observation, treatment, and disposition.

He continued to serve until he was honorably discharged on 23 April 1954.

The applicant's records contain a copy of a DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty) dated 13 September 1999, which shows that item 27 (Decorations and Awards) was corrected to show the award of the POW Medal and item 38 (Remarks) of his DD Form 214 dated 23 April 1954, to show that he was a POW from 27 August 1951 to 23 August 1953. His period of service as a POW is included in item 22 (Net Service Completed for Pay Purposes this Period) of his DD Form 214, dated 23 April 1954.

After a break in service, he reenlisted in the RA on 5 April 1956 by obtaining a waiver for his wounds. He continued to serve through a series of continuous reenlistments.

The applicant's records contain additional medical evidence which shows that he was administered several medical examinations and was found qualified for enlistment.

On 22 February 1972, the applicant underwent a Medical Evaluation Board (MEB) medical evaluation. He was diagnosed as having: a status post gunshot wound involving right mandible (horse-shoe-shaped bone forming the lower jaw),
right thorax and right upper extremity and fragment wounds involving the left lower extremity; fracture of right mandible, healed with some hypersensitivity; right humerus (the bone that extends from the shoulder to the elbow) healed with moderate soft tissue loss of triceps and minimal soft tissue loss of posterior deltoid (of a triangular outline) fibers in right arms; mild weakness right upper extremity with loss of soft tissue; and possible torn medial meniscus (crescentic [shaped liked crescent or new moon] interarticular [situated between articular surfaces] fibrocartilage [the matrix of which contains a considerable amount of fibrous tissue]), left. He was found not qualified for retention with a physical profile of 343111 with a recommendation that his case be presented to a Physical Evaluation Board.

On 25 February 1972, the applicant's case was considered by an MEB. The applicant was not present and did not present any views on his behalf. The MEB stated that the applicant underwent a previous MEB and PEB for retention with a U-4 profile. The recommendations of and finding of those boards found the applicant physically fit for duty with a U-4 profile on his right upper extremity. The MEB would be an evaluation of his physical condition and any changes therein from the date of the last board in December 1970 until the present date. The history of the applicant's illness was unchanged from that time.

The MEB unanimously found the applicant unfit. The finding and recommendations were approved, and the applicant was referred to a PEB. The applicant did not desire to continue on active duty and concurred with the MEB's finding and recommendations.

On 3 May 1972, the applicant's case was considered by an informal PEB which convened at Fitzsimmons General Hospital in Denver, Colorado. The PEB found the applicant unfit and recommended a combined rating of 70 percent, and that he be permanently retired from the service. The applicant concurred and waived a formal hearing of his case. In its remarks the PEB stated that the applicant was considered unfit under the provisions of Army Regulation 40-501, paragraph
3-36c.

On 7 June 1972, the applicant was retired by reason of physical disability with a combined rating of 70 percent with an effective date of 8 June 1972. He had a total of 19 years, 4 months, and 26 days of creditable service.
The applicant's records contain a copy of his Data for Retired Pay which shows that he was credited with 19 years, 4 months, and 26 days of active federal service for disability retirement.

The applicant's records contain a copy of Letter Orders Number D 5-1585, dated 25 May 1972, published by the Office of the Adjutant General (AG), Subject: Enlisted Disability Retirement. The letter stated that the applicant was determined to be permanently unfit for duty by reason of physical disability, was relieved from assignment and duty, and was placed on the Retired List effective 7 June 1972. He was placed on the Retired List in the rank of master sergeant with a 70 percent disability rating.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 12 of that regulation sets policies and procedures for voluntary retirement of soldiers because of length of service.

Paragraph 12-4, implements Title 10, United States (US) Code, section 3914 which governs 20-year retirement by a soldier of the Regular Army, the Army National Guard of the United States and the U.S. Army Reserve. In pertinent part, the regulation provides that a request for retirement may be submitted by a soldier who has completed 20 years, but less than 30 years, of active Federal service in the U.S. Armed Forces. Approval of the request for retirement will be at the discretion of the Secretary of the Army.

Title 10, US Code, chapter 61, provides for the disability retirement or separation of 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 10, US Code, section 1201, provides for the physical disability retirement of an unfit member who has at least 20 years of service or a disability rating of at least 30 percent.

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 medical evidence contained in the applicant's record clearly shows that he was wounded on 1 September 1951, was a POW from 27 August 1951 to 23 August 1953, and was honorably discharged. He was administered a waiver for his wounds, reenlisted, and continued to serve through a series of continuous reenlistments.




2. The applicant was administered several medical examinations which show that he was found qualified for enlistment. He later underwent an MEB medical evaluation and was found not qualified for retention with a physical profile of 343111 and was referred to a PEB.

3. The applicant's case appeared before an informal MEB. The MEB stated that the applicant had appeared before a previous MEB and PEB for retention with a U-4 profile. The recommendations and findings of the previous boards found the applicant physically fit for duty with a U-4 profile on his right upper extremity. This MEB was a reevaluation of his present physical condition and any changes thereof from the previous boards.

4. The applicant's condition was unchanged from that time and the MEB found the applicant unfit for duty and was referred to a PEB. The PEB found the applicant unfit, recommended a combined rating of 70 percent, and that the applicant be permanently retired from the service.

5. The applicant concurred with the findings and waived a formal hearing of his case. He was retired by reason of physical disability with a combined rating of
70 percent.

6. The applicant's record shows that he had completed 19 years, 4 months, and 26 days of total service. His time served as a POW was included in his total active service for disability retirement. Therefore, he is not entitled to any additional time served as a POW toward an AD retirement.

7. The Board notes that the applicant was not entitled to an AD retirement for length of service in accordance with Army Regulation 635-200, chapter 12. The evidence of record shows that he failed to complete 20 years of active Federal service. The evidence clearly shows that he was undergoing physical disability processing and was retired by reason of physical disability approximately
7 months and 4 days short of completing 20 years of active Federal service.

8. The letter order published by the AG on 25 May 1972 clearly shows that he received a disability retirement. Therefore, this letter order is correct as currently constituted.

9. 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.




10. 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___ __ep___ __ja____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002073561
SUFFIX
RECON
DATE BOARDED	20030206
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	19720607
DISCHARGE AUTHORITY	AR .635-40
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	338
2.
3.
4.
5.
6.