RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         28 SEPTEMBER 2004
      DOCKET NUMBER:  AR2004101769


      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. Fred Eichorn                  |     |Chairperson          |
|     |Ms. Karen Fletcher                |     |Member               |
|     |Mr. Ronald Blakely                |     |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, in effect, that his 1969 separation from active
duty be corrected to show that he was discharged or retired by reason of
physical disability.

2.  The applicant states he was severely wounded in Vietnam in February
1968 and after being released from the hospital was discharged without
medical disability and he knows “that is against established policy.”    He
states that he has attempted to correct this injustice since 1969 but has
gotten nowhere to date.

3.  The applicant provides a copy of his separation document, a 1977
medical statement indicating that he had retained shrapnel in his heart, a
1994 statement from a physician supporting his petition to increase his
Department of Veterans Affairs (VA) rating, and a June 2003 VA statement
indicating that he currently has a service connected disability rating of
100 percent.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 23 January 1969.  The application submitted in this case
is dated
11 November 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.  The applicant’s military personnel file was not available to the Board.
 However, documents contained in his VA records, including copies of his
service medical records were sufficient to adequately reconstruct the
applicant’s file.

4.  The applicant initially entered active duty on 30 August 1965 as an
enlisted Soldier.  He was discharge for the purpose of accepting an
appointment as a United States Army Reserve (USAR) warrant officer on 31
July 1967.  He was ordered to active duty as a warrant officer on 1 August
1967.

5.  According to his service medical records, the applicant, a helicopter
pilot, sustained multiple fragment wounds to his chest, thigh, and calf
when he “was hit by a rocket while diving his chopper” on 11 February 1968,
in Vietnam.

6.  The applicant was initially hospitalized in Vietnam and subsequently
evacuated to Japan.  It appears that he was ultimately assigned to the
Medical Holding Company at Fort Devens, Massachusetts in March 1968.  A
subsequent medical document, dated 29 July 1968 notes that the applicant’s
“wounds healed without difficulty and he remained essentially asymptomatic,
following which he was transferred to CONUS [Continental United States].
He arrived at Fort Devens without any difficulties whatsoever.”  On 19 June
1968 he was issued a temporary physical profile prohibiting prolonged or
strenuous marching, drilling or field duty.

7.  A 17 July 1968 clinical record indicates that the applicant was on
convalescent leave between 11 March and 17 April 1968 and that he was
permitted to subsist elsewhere between 23 May and 19 June 1968.  He was
ultimately restored to duty and on 17 July 1968 he was reassigned from the
Medical Holding Company at Fort Devens to the United States Army Garrison
at Fort Devens.

8.  The applicant underwent a flight evaluation physical on 27 August 1968.
 He noted at that time that his health was good.  However, the evaluating
physician concluded that the applicant was not eligible for flight status.
In January 1969 the applicant underwent a separation physical examination
that determined that he was medically qualified for separation with a
physical profile of 1-1-1-1-1-1 and a physical category of “A” indicating
that he had no medically disqualifying defects that required referral for
disability processing.  On 23 January 1969 the applicant certified that
there had been no change in his physical condition.

9.  On 23 January 1969 the applicant was released from active duty.  His
separation document indicates that he was voluntarily released from active
duty under the provisions of Section XX, Army Regulation 135-173.

10.  Army Regulation 135-173, in effect at the time, established the
policies and provisions for the relief of Reserve Component officers and
warrant officer from active duty.  Section XX of that regulation stated
that any officer serving on active duty may, if eligible, submit an
application for relief from active duty whenever he considers such action
appropriate.

11.  In March 1969 the applicant was granted a combined service connected
disability rating of 30 percent by the VA.  His “penetrating GSWs [gunshot
wounds] right middle and lower lobes and diaphragm with thoracotomy and
RFBs [?]” was independently rated at 20 percent while his “laceration right
atrium of heart” was rated at 10 percent.  Over time the VA rating has
increased to his current rating of 100 percent, but has been expanded to
include other disabilities determined by the VA to have been service
connected.

12.  Documents in the applicant’s VA file indicate that following his
separation from active duty, he was employed as a professional pilot/chief
pilot between 1970 and 1976, as a crew chief for the Colorado State Forest
Service between 1976 and 1977, as a vice president of sales with a stock
brokerage firm between 1979 and 1986, and as vice president of sales and an
executive recruiter with an executive recruiting firm between 1985 and
1990.

13.  Army Regulation 635-40 states that disability compensation 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 incurred or aggravated in service.  When a Soldier is being
processed for separation for reasons other than physical disability,
continued performance of assigned duty commensurate with his or her rank or
grade until the Soldier is scheduled for separation, is an indication that
the applicant is fit.

14.  Title 38, United States Code, sections 1110 and 1131, permits the
Department of Veterans Affairs to award compensation for a medical
condition which was incurred in or aggravated by active military service.
An individual'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 the individual for VA
benefits based on an evaluation by that agency.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that because he was wounded in Vietnam,
received medical treatment, and was assigned to various military hospitals
he should have been medically retired or separated is without foundation.
The evidence of record indicates that in spite of the applicant’s wounds,
the applicant was assigned to a garrison unit at the time he voluntarily
requested release from active duty.  The applicant himself indicated, in
his final physical examination, that his physical condition at the time of
his separation was good.  Had any of the medical treatment officials
believed that his wounds rendered him unfit for continued service, they
would have referred him for disability processing.  The fact that none of
them did, supports the conclusion that the applicant’s conditions did not
warrant such referral.

2.  There is no evidence, and the applicant has not provided any, which
confirms that he was physically unfit to at the time of his separation even
though he may have been precluded from flying.

3.  The evidence of record indicates he did not have any medically
unfitting disability which required physical disability processing.
Therefore, there is no basis for physical disability retirement or
separation.

4.  The fact that the applicant subsequently received a disability rating
from the Department of Veterans Affairs for his service incurred
disabilities, is not evidence that he should have been medically retired or
separated from active duty in 1969, rather than being voluntarily released
from active duty at his request.  A rating action by the VA does not
necessarily demonstrate any error or injustice by the Army.  The VA,
operating under its own policies and regulations, assigns disability
ratings as it sees fit.  Any rating action by the VA does not compel the
Army to modify its reason or authority for separation.

5.  In order to justify correction of a military record the applicant must
show, or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy that requirement.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 23 January 1969; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
22 January 1972.  However, 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

___FE __  ___KF___  ___RB __  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.




                                  ______Fred Eichorn_________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR2004101769                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040928                                |
|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.                      |                                        |


-----------------------
[pic]