MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 13 November 2003
         DOCKET NUMBER: AR2003087505

         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 L. Amos		Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Ms. Eloise C. Prendergast		Member
Mr. Ronald E. Blakely		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)

APPLICANT REQUESTS: Reconsideration of his request to correct item 10 on his DA Form 199 (Physical Evaluation Board Proceedings) to show that his disability resulted from an injury or disease received in the line of duty as a direct result of armed conflict.

APPLICANT STATES: That evidence has just been released this year that exposure to Agent Orange is linked to veterans who served in Vietnam who have been diagnosed with chronic lymphocytic leukemia (CLL). He has been diagnosed with this illness since 1977 when the Army separated him.

NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's original consideration of his case on 7 October 1998 (AC98-07741).

As supporting evidence, the applicant provides a copy of a 24 January 2003 internet site Associated Press news article which indicates the Department of Veterans Affairs (VA) will extend benefits to Vietnam veterans diagnosed with CLL. The VA Secretary stated that rules must be drafted and published in the Federal Register before increased benefits for these veterans could take effect. He expected the process to take effect in about a year. This article is new evidence which will be considered by the Board.

The applicant initially served in the Regular Army from 15 April 1965 through 28 March 1969 during which time he served in Vietnam from 31 July 1966 through 30 July 1967. He reenlisted on 17 July 1969 and had continuous service until his placement on the Temporary Disability Retired List (TDRL). He served in Vietnam a second time from 23 July 1969 through 20 July 1970.

On 1 June 1977, a medical evaluation board (MEB) found the applicant to be unfit for duty with a diagnosis of lymphoproliferative disorder characterized by persistent lymphocytes and diffuse lymphadenopathy both above and below the diaphragm with symptoms of 10 percent body weight loss, fevers, and night sweats.

On 17 August 1977, a physical evaluation board (PEB) found the applicant to be unfit for duty by reason of neoplastic disease of the lymphatic tissues. His disability was described on the DA Form 199 as stated in the MEB diagnosis and rated as 100 percent disabling under VA Schedule of Rating Disabilities (VASRD) code 7703.

Item 10 of the DA Form 199 dated 17 August 1977 indicated that the applicant's "retirement was not based on disability resulting from injury or disease received in line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurred in line of duty during a period of war as defined by law."
On 2 August 1979, a TDRL re-evaluation found the applicant to be fit for duty. The applicant disagreed with the findings and demanded a formal hearing.

On 5 September 1979, a formal PEB found the applicant to be physically unfit due to poor appetite, nausea from eating or thinking of eating, difficulty in maintaining weight, pain in the abdomen, feeling of distension of the stomach and fatigue, considered to be a result of intensive chemotherapy treatments, under VASRD code 7301, with a 10 percent disability rating.

Item 10a of the DA Form 199 dated 5 September 1979 indicated that the applicant's "retirement was not based on disability resulting from injury or disease received in line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurred in line of duty during a period of war as defined by law." Item 10c of this DA Form 199 indicated that the applicant's disability did not result from a combat related injury as defined in Title 16, U. S. Code, section 104.

On 30 September 1979, the applicant was removed from the TDRL and discharged with severance pay by reason of permanent physical disability.

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. It states in pertinent part that a member whose retirement from the service is based on disability resulting from injury or disease received in line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurred in line of duty during a period of war is entitled to certain special considerations if he subsequently goes to work for the Federal Government. The disability must have resulted from injury or disease received in line of duty as a direct result of armed conflict and which itself renders the soldier unfit. A disability may be considered a direct result of armed conflict if it was incurred while the soldier was engaged in armed conflict or in an operation or incident involving armed conflict or the likelihood of armed conflict; if a direct causal relationship exists between the armed conflict or the incident or operation and the disability; or if the disability which is unfitting was caused by an instrumentality of war and was incurred in line of duty during a period of war. A determination that a disability was caused by an instrumentality of war and incurred in line of duty will be appropriate only when it is also determined that the disability so incurred in itself renders the member physically unfit and was incurred during one of the periods of war as defined by law.

Army Regulation 635-40 also states that prior to the enactment of the Tax Reform Act of 1976, military disability retired pay or disability severance pay was excluded from gross income for Federal tax purposes. With the passage of the Act, one of two conditions must be satisfied for military disability retired or severance pay to be exempt from Federal taxation. One of the conditions is that, on 24 September 1975, the individual was a member of the armed forces or was under binding written agreement to become such a member.

The VASRD is the standard under which percentage rating decisions are to be made for disabled military personnel. The VASRD is primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. Currently, leukemia is given VASRD code 7703; Non-Hodgkins lymphoma is given VASRD code 7715. (VASRD code 7715 may not have existed in 1977; it did not exist in the 1957 version of the VASRD.)

Disability compensation is paid by the VA to veterans who are disabled by injury or disease incurred or aggravated during active military service. The benefits are not subject to Federal or state income tax.

The 10 July 1973 version of the VA Presumptions/Approved Codes listing for use in administering the Combat-Related Special Compensation (CRSC) program lists VASRD code 7715 (but not code 7703) as a VASRD code most likely used with certain VA presumptive disability ratings related to use of herbicide agents in Vietnam. This listing also states that, under recent guidelines, the VA is not always using the formal statutory and regulatory cites and terminology that they have in the past. In these instances, the combat related reviewers will have to review the language and listed disabilities more closely to ascertain if they can be presumed combat related under the VA descriptions and disease function they prescribe.

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. For historical purposes, the Army has an interest in maintaining the accuracy of its records. The data and information contained in those records should actually reflect the conditions and circumstances that existed at the time the records were created.

2. The Board notes that the applicant may be eligible for a presumptive finding by the VA that his medical condition was the result of herbicide use while he was assigned to Vietnam. However, the decision to add Non-Hodgkin's lymphoma and/or CLL to the presumptive findings list was not made until more than 25 years after the applicant was placed on the TDRL. At the time he was placed on the TDRL, his DA Form 199 was not in error when it stated that his disability did not result from disease incurred as a direct result of armed conflict.

3. In the absence of a showing of material error or injustice, this Board is reluctant to recommend that the applicant's records be changed.
4. The applicant has failed to show how the failure to change his DA Form 199 has been/would be detrimental to any benefits to which he is entitled. Since he was on active duty on 24 September 1975, his disability retired pay or disability severance pay was excluded from gross income for Federal tax purposes. Neither the VA nor the Department of Defense is limited by any entry on his DA Form 199 concerning whether or not his disability resulted from a disease incurred as a direct result of armed conflict in awarding him additional compensation under the CRSC.

5. The overall merits of the case, including the latest submissions and arguments, are insufficient as a basis for the Board to reverse its previous decision. However, this Board action will be filed in the applicant's military records so the fact that his medical condition has now been presumed by the VA to be the result of disease incurred as a direct result of armed conflict will be on hand.

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___ __ecp___ __reb___ DENY APPLICATION

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

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INDEX

CASE ID	AR2003087505
SUFFIX
RECON
DATE BOARDED	20031113
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY	Mr. Chun
ISSUES 1.	108.00
2.
3.
4.
5.
6.