RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         7 JULY 2005
      DOCKET NUMBER:  AR20040008934


      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             |
|     |Mr. Kenneth H. Aucock             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Melvin Meyer                  |     |Chairperson          |
|     |Mr. Eric Andersen                 |     |Member               |
|     |Ms. Carol Kornhoff                |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests physical disability retirement.

2.  The applicant states that the Department of Veterans Affairs (VA)
awarded him a 60 percent service connected disability rating within 6
months after his discharge.  He is now rated as 100 percent disabled.  He
states that being medically retired entitles him to TRICARE benefits.

3.  The applicant provides copies of VA documents, and a copy of his
       DD Form 214 (Report of Transfer or Discharge), with a copy of a DD
Form 215 correcting that form.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 12 October 1968.  The application submitted in this case
is dated     11 October 2004.

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 limitations 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.  The applicant was inducted into the Army on 6 October 1966, trained as
an infantryman and completed airborne training.  He was assigned to Fort
Bragg, North Carolina and then to Fort Campbell, Kentucky.  In December
1967 he  transferred to Vietnam with his unit, Company D, 3d Battalion
(Airborne),        187th Infantry Brigade.

4.  The applicant was wounded in action on 18 June 1968, sustaining a
fragmentation wound to his right thigh while engaged in a firefight.

5.  A 27 January 1969 clinical record prepared at Ireland Army Hospital at
Fort Knox, Kentucky, shows that the applicant was admitted to the hospital
on            4 August 1968 and discharged on 2 October 1968.  The report
shows that the applicant sustained fragment wounds to both thighs and glans
penis on 18 June 1968, that he had delayed primary closure on 22 June 1968
with a resultant wound infection sustained mainly to the right thigh.  The
penile injury resulted in a 90 percent loss of the glans.  He was on
Urological Service and received dilation of the tip of the remaining glans
to prevent strictures.  The applicant had developed left scrotal pain en
route to the hospital via air evacuation.  The report shows that the
Urological Service noted that the applicant had an epididymitis and
recommended elevation of the scrotum with antibiotics given to the
applicant.  By 22 August 1968 the applicant’s epididymitis was sufficiently
healed that the applicant could have a scrotal support and be sent on
convalescent leave.  He returned from convalescent leave on 26 September
1968 and it was felt that his wounds had healed sufficiently that he could
be discharged after a GU and orthopedic consult.  They noted that there was
a stricture at the entrance of what was left of the glans and indicated
that the applicant should receive dilation approximately every three to
four months in order to prevent stricture.  He was counseled by Urological
Service and indication was that he was fit for retention in the service.
The Orthopedic Service indicated that the applicant had gunshot wounds to
both legs, that he had right weakness in his leg with an anesthesis pattern
compatible to the injury.  There was a 1.5 centimeter atrophy about two
inches of bone.  The knees were stable without any infusion.  There was a
decreased power secondary to muscle loss right greater than the left
aggravated by hyperesthesis.  They suggested that the applicant be on
physical training with isometric quad exercises, ambulation and pull, and
to stop using a cane.  After completion of the consultations, the applicant
was discharged from the hospital to medical holding.

6.  On 5 October 1968 the applicant agreed to remain on active duty beyond
his ETS (expiration of term of service) in order to receive continued
medical treatment or hospitalization.

7.  An 8 October 1968 report of medical examination shows that the
applicant was medically qualified for separation with a physical profile of
1 1 3T 1 1 1.  In the report of medical history that the applicant
furnished for the examination, he stated that his health was fair.

8.  The applicant was released from active duty at Fort Knox on 12 October
1968 and transferred to the Army Reserve Control Group (Annual Training) at
St. Louis.

9.  On 31 March 1969 the VA notified the applicant that he was awarded
$136.00 month in benefits beginning on 13 October 1968, and $147.00 a month
beginning on 1 January 1969.

10.  A hospital summary prepared by a doctor at the VA Center in Wood,
Wisconsin, shows that the applicant was admitted on 23 June 1969 and
discharged on 27 June 1969.  The examining physician provided a history of
his past treatment the applicant’s injuries, noted that he had epididymitis
on both sides, that he had no hematuria, urethral discharge or symptoms or
urinary tract infection or prostatitis other than the epididymitis.  The
doctor stated that the applicant probably did not need dilations, but
should be closely followed to see if at any time he would need dilations.
He stated that he felt that the applicant was doing quite well and would
not require three month dilations at that time; however, he should be
closely watched and followed to see if he developed any difficulty and did
eventually require dilations or revision of his urethra.

11.  A progress report, dated 18 March 1971, shows that the applicant was
followed up for the trauma to his glans, and that he was asymptomatic.  He
had occasional recurrent epididymitis.  There was no dilation required at
that time.

12.  On 18 June 1971 the applicant was determined to be not qualified for
retention in the Army Reserve by a Physical Review Board at the Army
Administration Center in St. Louis.  His physical profile serial was 4 1 2
1 1 1.  The Physical Review Board proceedings are not available.

13.  The applicant was discharged from the Army Reserve Control Group
(Annual Training) on 24 June 1971 because of his physical disqualification.


14.  Title 10, United States Code, chapter 61, provides disability
retirement or separation for a member who is physically unfit to perform
the duties of his office, rank, grade or rating because of disability
incurred while entitled to basic pay.

15.  Army Regulation 40-501, then in effect, 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.
Performance of duty despite an impairment would be considered presumptive
evidence of physical fitness.

16.  Army Regulation 635-40, then in effect, provides that when a member is
being separated by reason other than physical disability, his continued
performance of duty creates a presumption of fitness which can be overcome
only by clear and convincing evidence that he was unable to perform his
duties or that acute grave illness or injury or other deterioration of
physical condition, occurring immediately prior to or coincident with
separation, rendered the member unfit.

17.  Army Regulation 635-40 establishes the Army physical disability
evaluation system and sets forth policies, responsibilities, and procedures
that apply in determining whether a Soldier is unfit because of physical
disability to reasonably perform the duties of his office, grade, rank, or
rating.  It provides for medical evaluation boards, which are convened to
document a Soldier’s medical status and duty limitations insofar as duty is
affected by the Soldier’s status.  A decision is made as to the Soldier’s
medical qualifications for retention based on the criteria in AR 40-501,
chapter 3.  If the Medical Evaluation Board (MEB) determines the Soldier
does not meet retention standards, the board will recommend referral of the
Soldier to a Physical Evaluation Board (PEB).

18.  Physical evaluation boards are established to evaluate all cases of
physical disability equitability for the Soldier and the Army.  It is a
fact finding board to investigate the nature, cause, degree of severity,
and probable permanency of the disability of Soldiers who are referred to
the board; to evaluate the physical condition of the Soldier against the
physical requirements of the Soldier’s particular office, grade, rank or
rating; to provide a full and fair hearing for the Soldier; and to make
findings and recommendation to establish eligibility of a Soldier to be
separated or retired because of physical disability.

19.  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.  A common misconception is that veterans can receive both a
military retirement for physical unfitness and a VA disability pension.  By
law, a veteran can normally be compensated only once for a disability.  If
a veteran is receiving a VA disability pension and the ABCMR corrects the
records to show that a veteran was retired for physical unfitness, the
veteran would have to choose between the VA pension and military
retirement.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that the applicant was treated for two months at
Ireland Army Hospital at Fort Knox, after which medical personnel felt that
his condition was such that he could be discharged from the hospital.  At
the time of the separation physical examination, competent medical
authority determined that the applicant was then medically fit for
retention or appropriate separation.  Accordingly, the applicant was
separated from active duty for reasons other than physical disability.  He
was, in fact, transferred to the Army Reserve in order to complete his
military service obligation.

2.  The fact that the VA, in its discretion, has awarded the applicant a
disability rating is a prerogative exercised within the policies of that
agency.  It does not, in itself, establish physical unfitness for
Department of the Army purposes.

3.  The award of VA compensation does not mandate disability retirement or
separation from the Army.  The VA, operating under its own policies and
regulations, may make a determination that a medical condition warrants
compensation.  The VA, 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.
Furthermore, the VA can evaluate a veteran throughout his lifetime,
adjusting the percentage of disability based upon that agency's
examinations and findings.  Consequently, due to the two concepts involved,
the applicant's medical condition, although not considered medically
unfitting for military service at the time of processing for separation,
discharge or retirement, may be sufficient to qualify him for VA benefits
based on an evaluation by that agency.  The VA is not required to determine
fitness for duty at the time of separation.  The Army must find a member
physically unfit before he can be medically retired or separated.

4.  The applicant was discharged from the Army Reserve in 1971 because he
was physically disqualified for retention by that component.  It could be
assumed that he was disqualified because of the wounds that he received
while on active duty – that is his condition had worsened since his release
from active duty in October 1968.  Thus, as the applicant himself has
stated, he is now being compensated by the VA, which is the proper agency
to deal with any disabilities that he incurred while in the military
service.

5.  The applicant has submitted neither probative medical evidence nor a
convincing argument in support of his request.  There is no basis for
physical disability retirement.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 12 October 1968; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 11 October 1971.  The applicant did not file within
the 3-year statute of limitations and has not provided a compelling
explanation or evidence to show that it would be in the interest of justice
to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___MM__  ___EA __  ___CK  __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate
the existence of a probable error or injustice.  Therefore, the Board
determined that the overall merits of this case are insufficient as a basis
for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                  ______Melvin Meyer________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040008934                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050707                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |108.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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