RECORD OF PROCEEDINGS


         IN THE CASE OF:


         BOARD DATE: 19 FEBRUARY 2004
         DOCKET NUMBER: AR2003089534


         I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Ms. Deborah L. Brantley		Senior Analyst

The following members, a quorum, were present:

Mr. Raymond L. Wagner		Chairperson
Mr. Melvin H. Meyer		Member
Mr. Robert L. Duecaster		Member

         The applicant and counsel if any, did not appear before the Board.

         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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THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant requests, in effect, disability retirement or separation.

2. The applicant also asks that his records be corrected to show that he is entitled to the Purple Heart, and any additional awards and decoration he may be entitled to as a result of his military service.

3. He requests that his service time in Vietnam be reflected on his separation document and, in effect, that he be paid any monies due him as a result of his separation document showing that he was separated in pay grade E-3.

4. The applicant states, in effect, that he was assigned to a medical company at the time of his separation and as such, he should have been medically discharged. He states that he had a seizure history and should never have been in the service and that he is now receiving disability compensation as a result of a seizure that he experienced on 22 December 1967. He states that his history of AWOL (absent without leave) was stress induced and that he was handcuffed and taken to Vietnam and is now living with all of those issues.

5. The applicant also states that his separation document indicates that he was separated in pay grade E-3 but contends that he was paid as an E-1 during his military service between 1965 and 1967.

6. The applicant provides his self-authored statement, extracts from his military personnel file showing his physical profile, service medical records confirming his combat wound and that he suffered from occasional seizures, and a 1969 statement from the Department of Veterans Affairs indicating receipt of disability compensation for a knee condition.

CONSIDERATION OF EVIDENCE:

1. The applicant is requesting correction of an error and an injustice which occurred on 15 December 1967. The application submitted in this case is
dated 3 April 2003.

2. Title 10, U.S. Code, Section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if





the ABCMR determines that it would be in the interest of justice to do so. In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3. Records available to the Board indicate the applicant was inducted and entered active duty on 19 October 1965. His entrance physical examination makes no mention of any seizure disorder, but does note a “marked hearing loss” in his right ear. He entered active duty with a P-2 profile for his hearing.

4. The applicant successfully completed basic combat training. He was promoted to pay grade E-2 in February 1966.

5. According to a May 1967 medical statement, the applicant suffered a grand mal seizure in April 1966 while undergoing advanced individual training at Fort Dix, New Jersey. The medical statement notes that the seizure was not in the line of duty because it was determined that the condition existed prior to his entry on active duty. The applicant’s records contain a 26 April 1966 temporary physical profile noting that the applicant “has occasional seizure with loss of consciousness” and that he should not be assigned to a unit where sudden loss of consciousness would be dangerous to the applicant or to others, and gave the example that he should avoid work on scaffolding, handling ammunition, vehicle driving, and work near moving machinery. The profile was temporary and expired on 24 May 1966.

6. There is no indication that the applicant’s training was delayed as a result of his seizure and he was awarded an infantry specialty (11B) in June 1966.

7. In July 1966 the applicant was assigned to Vietnam as an infantryman with the 4^th Battalion, 31^st Infantry, 196^th Infantry Brigade.

8. On 16 August 1966, after the applicant had already transferred to Vietnam with the 196^th Infantry Brigade as part of a unit move, he was issued a permanent profile for his seizure condition, which permanently precluded the assignments noted above. It is unclear if this physical profile ever reached the applicant’s unit in Vietnam.

9. However, in October 1966 the applicant assumed duties as a “litter bearer” with the 8^th Support Battalion of the 196^th Infantry Brigade and was promoted to pay grade E-3.






10. On 4 November 1966 the applicant sustained a shrapnel wound to his right leg as a result of an enemy mortar round. His award of the Purple Heart was confirmed in orders published by the 196^th Infantry Brigade but omitted from his separation document. As a result of the applicant’s combat wound, he was medically evacuated to Valley Forge General Hospital via Japan.

11. On 20 May 1967, while at Valley Forge General Hospital, the applicant’s August 1966 profile was made a permanent part of his records and entered in item 18 (assignment limitations) on his Department of the Army Form 20 (Enlisted Qualification Record).

12. In June 1967, while still assigned to Valley Forge General Hospital in a patient status, the applicant was convicted by a summary court-martial of failing to obey the order of his wardmaster and of two counts of AWOL (23 April-
21 May 1967, 26 May-31 May 1967). His sentence included 30 days of confinement and he was reduced to pay grade E-1.

13. In August 1967 the applicant was released from a patient status and assigned as a clerk to the Medical Company at Walson Army Hospital, Fort Dix, New Jersey. He was awarded specialty 71O (clerk) and promoted to pay grade E-2.

14. In September 1967, shortly after arriving at Fort Dix, New Jersey, the applicant underwent a separation physical examination. The applicant indicated that he was in poor health because of his “right leg and epilepsy.” On the copy of the applicant’s separation physical, which is contained in his military record, the examining physician’s portion is not completed. However, on 7 November 1967 the applicant was promoted to pay grade E-3 and on 15 December 1967, 1 day after his scheduled separation date, he was released from active duty with an honorable characterization of service. A statement signed by the applicant in conjunction with his separation notes that there has “been no change in [his] medical condition since [his] last medical examination on Sept. 12, 1967.”

15. The applicant’s separation document reflects entitlement to the National Defense Service Medal, the Vietnam Service Medal, and the Vietnam Campaign Medal. Item 22c (foreign and/or sea service) reflects his service in Vietnam (USARPAC – United States Army Pacific Command).

16. The applicant’s records indicate that in August 1968, subsequent to his separation, he performed 15 days of active duty for training with the United





States Army Reserve. Upon his release from active duty for training, the applicant signed a statement indicated that he believed he was “medically qualified to perform satisfactory military service.” The applicant was honorably discharged from the United States Army Reserve in October 1971 upon expiration of his statutory military service obligation.

17. In July 1969 the applicant was granted a 10 percent disability rating by the Department of Veterans Affairs for his “service connected knee condition.” By March 2000 the applicant was receiving a 100 percent disability rating from the Department of Veterans Affairs “due to individual unemployability.”

18. Army Regulation 40-501, paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.

19. Army Regulation 40-501, at paragraph 3-3a, indicated during the period in question, that performance of duty, despite an impairment, would be considered presumptive evidence of physical fitness.

20. Title 38, United States Code, sections 1110 and 1131, permit the Department of Veterans Affairs (VA) to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish error or injustice in the Army rating. An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service. The VA, which has neither the authority, nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual’s civilian employability. Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at a different disability rating based on the same impairment. Furthermore, unlike the Army, 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 rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while the VA may rate any service connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.

21. A review of Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) notes that an organization is given campaign participation credit if it actually engaged the enemy in combat, was stationed in the combat zone, or performed duties either in the air or on the ground in any part of the combat zone during the time limitations of the campaign. The pamphlet notes that the unit (196^th Infantry) the applicant was assigned to while in Vietnam was credited with participating in one campaign (Vietnam Counteroffensive Phase II) while the applicant was a member of the organization. His campaign participation should be reflected by one bronze service star on his Vietnam Service Medal.

22. Department of the Army Pamphlet 672-3 also notes that Headquarters, United States Army Vietnam and its subordinate units were awarded the Republic of Vietnam Gallantry Cross Unit Citation with Palm during the period
20 July 1962 through 28 March 1973. The unit the applicant was assigned to while in Vietnam would have qualified for an award of the Republic of Vietnam Gallantry Cross Unit Citation with Palm as a subordinate unit of Headquarters, United States Army Vietnam. There is no evidence that the applicant is entitled to any other unit awards based on his military service.

DISCUSSION AND CONCLUSIONS:

1. The evidence confirms the applicant was awarded the Purple Heart for wounds sustained as a result of hostile actions while in Vietnam.

2. The evidence also confirms that the applicant is entitled to one bronze service star on his Vietnam Service Medal and the Republic of Vietnam Gallantry Cross Unit Citation with Palm.

3. Although the applicant may have been assigned to a medical company at the time of his discharge, he was not assigned to the medical unit as a patient. Rather the evidence confirms that he was performing duties as a clerk and was in fact promoted less than 60 days prior to his separation from active duty. Such evidence supports a conclusion that the applicant was not suffering from any disabilities which would have warranted referral for disability processing.

4. The evidence also shows that a year after his separation from active duty he continued to perform his military duties as a member of the United States Army Reserve.

5. The fact that the applicant may have had a permanent profile and subsequently been awarded disability compensation by the Department of Veterans Affairs, is not evidence that he should have been medically discharged or retired from active duty.

6. The applicant’s contention that he was released in pay grade E-3, but only paid in the grade of E-1 is not supported by any evidence submitted by the applicant or contained in his file.

7. Additionally, the applicant’s contention that his seizure condition somehow excused his periods of AWOL is also not supported by any evidence in available records or provided by the applicant.

8. The applicant's service in Vietnam is reflected in item 22c of his separation document.

BOARD VOTE:

___RJW _ __MHM _ __RLD __ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION

1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief and to excuse failure to timely file. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

a. showing that he was awarded the Purple Heart; and

b. showing that he is entitled to one bronze service star on his Vietnam Service Medal and the Republic of Vietnam Gallantry Cross Unit Citation with Palm.

2. The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to disability retirement or separation, payment for funds he contends he did not receive as a result of being separated in pay grade E-3, excusing his AWOL periods, or adding his service in Vietnam to his separation document.





                  __Raymond J. Wagner____
                  CHAIRPERSON

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INDEX

CASE ID	AR2003089534
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20040219
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.	107.00
2.	108.00
3.
4.
5.
6.