RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         07 OCTOBER 2004
      DOCKET NUMBER:  AR2004102352


      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. Walter Morrison               |     |Chairperson          |
|     |Mr. Paul Smith                    |     |Member               |
|     |Mr. Patrick McGann                |     |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 he was assigned to a desk rather than a drill
instructor school.  He was discharged from the hospital following surgery.
He received 100 percent disability rating from the Department of Veterans
Affairs (VA) after his discharge, and a 50 percent rating thereafter.
Posttraumatic stress disorder (PTSD) was not considered at that time.  He
is now rated at 70 percent disabled because of PTSD, for a total disability
rating of 100 percent.  He states that his physical and mental conditions
were improperly reviewed at the time of his discharge.

3.  The applicant provides a copy of his DD Form 214 (Report of Transfer or
Discharge), a copy of a correction to that form, and a copy of a VA rating
decision.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 21 April 1969.  The application submitted in this case is
dated          5 January 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 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 was inducted into the Army on 15 June 1967, trained as an
infantryman, and in November 1967 was assigned to an infantry company in
Vietnam.  On 27 May 1968 he was wounded in action, sustaining multiple
fragment wounds to his cheek, arm, and legs.  He was treated at the
     27th Surgical Hospital in Vietnam, and on 29 May 1968 transferred to
the 106th General Hospital.  On 7 June 1968 he was transferred to Irwin
Army Hospital at Fort Riley, Kansas.

4.  A 21 September 1968 medical report at Irwin Army Hospital shows that he
was diagnosed with multiple fragment wounds, penetrating, to his right
anterior thigh, calf, lateral aspect of his right hand, cheek and wrist,
left calf and hand, with no artery, nerve, or bone involvement.  The report
shows that initial treatment consisted of debridement of all wounds and
that all wounds had been permitted to remain open.  The report shows that
he had a skin graft on 11 June 1968, and that he went on convalescent leave
on 1 July 1968, retuning to the hospital on 31 July 1968.  In August 1968
assignment orders were requested and he was transferred to an infantry unit
at Fort Lewis, Washington for duty as a drill sergeant.

5.  In April 1969 he was seen at Madigan General Hospital in Tacoma,
Washington because of left leg pain.  An 18 April 1969 medical report shows
that he was diagnosed as having a left femoral arteriogram showing an
arteriovenous (AV) fistula (an abnormal communication between an artery and
a vein) involving the left posterior artery and vein.  On 1 April 1969 he
underwent surgery, where the AV fistula was resected and the artery
reconnected end to end.  The vein was oversewn.  The report indicates that
he had no complications, continued to have good distal pulses around the
area of repair, and at the time of his discharge [from the hospital] was
well healed.  He was discharged with an          L-3 temporary profile for
30 days.

6.  A 7 March 1969 report of medical examination indicates that the
applicant was medically qualified for separation with a physical profile
serial of 1 1 1 1 1 1. That report shows that the applicant was sent to the
surgical clinic at Madigan on 11 April 1969 for evaluation, and that he was
separated on 21 April 1969.  In the report of medical history that he
furnished for the examination, the applicant stated that his health was
fair.

7.  The applicant was released from active duty on 21 April 1969.

8.  On 24 July 2001 the VA informed the applicant of its decision regarding
his claim for increased service-connected disability compensation.  The
information provided indicates that the applicant had a 10 percent
disability rating for fragment wounds to his right thigh, a 10 percent
rating for a fragment wound to his right lower leg, and a 10 percent rating
for a fragment wound to his right wrist and hand, all effective 22 April
1969.  He had a combined evaluation of 100 percent from 22 April 1969
because of required convalescence for his left lower leg AV fistula repair,
50 percent from June 1969, and 60 percent from                 14 September
2000.  His rating as to entitlement for service connection for degenerative
joint disease, degenerative disc disease of the lower back, PTSD, and left
hip bursitis was deferred.  His zero percent rating for evaluation of a
scar to his right thigh and a 20 percent rating for evaluation of fragment
wounds to his left lower leg, with herniation and peripheral neuropathy and
postoperative AV fistula repair, was continued.
9.  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.

10.  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.

11.  Army Regulation 40-501, then in effect, provides, in pertinent part,
that performance of duty despite an impairment would be considered
presumptive evidence of physical fitness.

12.  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 his injuries at
Fort Riley in June 1968, and in August 1968 was returned to duty at Fort
Lewis.  On 1 April 1969 he underwent surgery to his left leg at Madigan
General Hospital .  He had no complications from the surgery and his leg
was well healed.  On 14 April 1969 he was discharged from the hospital.
Although he did have surgery some three weeks prior to his release from
active duty, he was apparently medically fit at the time that of his
release from active duty.  The applicant has submitted no evidence to the
contrary.

2.   The VA records provided by the applicant indicate that he has been
awarded compensation for medical conditions which that agency has
determined to be related to military service; however, 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.
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.

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.  This is apparent in the applicant's case, as
his disability ratings have been adjusted on at least two occasions since
he was released from active duty.

4.  The applicant did not have any medically unfitting disability which
required physical disability processing.  Therefore, there is no basis for
physical disability retirement or separation.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 21 April 1969; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on         20 April 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

___WM__  __PS ___  __PM ___  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.




                                  _____Walter Morrison  ____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR2004102352                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20041007                                |
|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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