RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        17 October 2006
      DOCKET NUMBER:  AR20060003422


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John T. Meixell               |     |Chairperson          |
|     |Mr. Peter B. Fisher               |     |Member               |
|     |Mr. Rowland C. Heflin             |     |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 that his DA Form 199 (Physical Evaluation Board
Proceedings) be corrected to show his disability was a direct result of
armed conflict and/or was caused by an instrumentality of war.  He also
requests, in effect, that his records be corrected to show he was
additionally found to be unfit for duty due to a back injury (with a 10
percent disability rating) and that this disability was a direct result of
armed conflict and/or was caused by an instrumentality of war.  He further
requests, in effect, that his records be corrected to show that he was also
found to be unfit for duty due to post-traumatic stress disorder (PTSD) and
that this disability was a direct result of armed conflict and/or was
caused by an instrumentality of war.

2.  The applicant states that he believes an error was made during his
formal Physical Evaluation Board (PEB) hearing in that his back injury and
PTSD were not coded on the DA Form 199.

3.  The applicant states that, in March 1966, he injured his back in
Vietnam helping several Soldiers lift an ammunition trailer to connect it
to an ammunition truck.  They were in knee-deep mud and heavy rain.  The
truck backed into the trailer, causing them to all fall down with the
weight of the trailer tongue being supported by him.  At that time, he felt
an excruciating pain in his lower back and immediately went to the field
dispensary.  After leaving Vietnam, he had recurring back problems and was
injected with medication several times to relieve the pain in his lower
back.  After his medical retirement, he was instructed to go to the
Veterans Administration (VA) for evaluation.  The VA gave him a 10 percent
disability rating for his back injury.  The VA later raised his disability
rating to     30 percent, and then to 60 percent, and he had to have
surgery on his back.

4.  The applicant states that his Medical Evaluation Board (MEB) diagnosed
him with severe secondary stress reactions and adjustment disorder with
psycho-social stress disorder.  He feels that should have coded as PTSD.
The VA found him to be suffering from severe PTSD and gave his condition a
30 percent disability rating.  The PTSD should have been diagnosed back in
1980.  Anyone looking at his records would see PTSD everywhere.  He had
constant problems with his stomach and nerves.

5.  The applicant provides his retirement orders; permanent change of
station orders dated 13 August 1980; his DA Form 199 dated 12 August 1980;
his MEB Narrative Summary; extracts from his service medical records; and
an x-ray of his lower spine.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 14 October 1980.  The application submitted in this case
is dated   27 February 2006.

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.  After having had prior service, the applicant enlisted in the Regular
Army on   8 January 1964.  He served in Vietnam from on or about 17 August
1965 to on or about 23 July 1966 as an Aircraft Rotor and Propeller
Repairman.  He provides medical records to show he was treated on 2 March
1966 for a strained back.

4.  The applicant provided medical records to show he was treated for low
back pain on 28 November 1967 and in September 1971 (with an impression of
mild lumbosacral strain in 1971).

5.  The applicant served in Vietnam again from on or about 24 July 1971 to
on or about 15 April 1972 as an Aircraft Rotor and Propeller Quality
Control Inspector.

6.  The applicant provided medical records to show he was treated for back
pain in February 1973 and on 30 April 1974.  On 12 May 1978, while being
evaluated for a complaint concerning his kidneys, it was noted that he had
tender mild lumbar paraspinal muscles with no spasms or deformation.  He
was evaluated again in 1979 preparatory to his MEB.

7.  The applicant completed an MEB evaluation on 21 March 1980.  The
Standard Form 88 (Report of Medical Examination) shows that x-rays of his
lower back were within normal limits.

8.  The applicant’s MEB Narrative Summary shows he was being evaluated for
chronic diarrhea and crampy abdominal pain.  His past medical history
revealed a long history of gastro-intestinal problems documented since
1974.  (The history of present illness section indicated that he was
apparently well and free of symptoms until 1964 (sic) when, after returning
from Vietnam the first time, he experienced the onset of his
gastrointestinal symptomatology manifested as burning indigestion and mid-
epigastric pain.)  A physical examination also revealed a normal spine with
some tenderness to palpation in the sacral area.  Psychiatry Service stated
the applicant did not have a conversion disorder but there was a definite
psychological factor affecting his physical disorder.  He was diagnosed as
having an adjustment disorder in response to psycho-social stress thought
to be a sequelae of his multiple surgeries (apparently in attempts to
correct his gastrointestinal problems).  Orthopedic Service reported him to
have a lumbosacral strain and recommended follow up at the Orthopedic VA
Clinic after separation.

9.  The MEB Narrative Summary noted that the applicant’s final diagnoses
were (1) functional bowel syndrome, manifested as chronic diarrhea and left
mid-epigasric abdominal pain; (2) history of peptic ulcer disease, with no
active bleeding currently; (3) history of lumbosacral back strain, stable;
(4) history of adjustment disorder secondary to psycho-social stress; (5)
status post Nissen fundoplication secondary to reflux esophagitis; (6)
status post Belsey-Mark IV hiatal hernia repair; (7) history of left
phrenic nerve paralysis manifested as an elevated left hemidiaphragm; and
(8) history of thoracotomy scar (incisional) pain.

10.  The MEB Narrative Summary‘s recommendation noted it was the opinion of
the MEB that the applicant was unfit for further military duty because of
irritable bowel syndrome with cramps and diarrhea which interrupted his
normal work schedule.

11.  On 30 May 1980, the MEB referred the applicant to a PEB for the eight
diagnoses listed in the Narrative Summary.  Item 21 (Brief Summary of
Medical Conditions and Physical Defects in Nontechnical Language) of the DA
Form        8-118 (Medical Board Proceedings) stated, “36 year old male
with chronic diarrhea and crampy abdominal pain that prohibits him from
participating in field activities; also, complains of low back pain.”

12.  On 20 June 1980, an informal PEB found the applicant to be physically
unfit due to recurrent gastrointestinal problems (30 percent) (diagnoses 1,
2, 4, 5, and 6).  Diagnoses 3, 7, and 8 were found to be neither unfitting
nor ratable.

13.  On 24 June 1980, the applicant did not concur in the findings of the
informal PEB and requested a formal hearing.  He indicated that, due to the
severe pain in his side and diaphragm which was not related to his
gastrointestinal problems, he requested the PEB reconsider diagnoses 7 and
8.

14.  On 12 August 1980, the applicant testified at a formal PEB.  In eight
pages of transcripts, the applicant’s back condition was mentioned in two
paragraphs.  The members noted that his health records indicated some back
pain and requested he tell them about it.  He related how he was hurt in
Vietnam, and that ever since he could be lifting something (as recently he
lifted a six-pack of cola) and something would go wrong with his back and
he would have severe pain in his back.  He stated that if he took care of
himself (such as not moving in certain directions, like from one side to
the other), it usually did not bother him that much.

15.  On 12 August 1980, the formal PEB found the applicant to be physically
unfit due to recurrent gastrointestinal problems (30 percent) and tender
painful thoracic scar (10 percent) and recommended he be permanently
retired with a  40 percent disability rating.  Diagnoses 3 and 7 were found
to be neither unfitting nor ratable.

16.  Item 10a of the applicant’s DA Form 199 dated 12 August 1980 indicated
his retirement was not based on a 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 indicated his disability did not
result from a combat-related injury as defined in Title 26, U. S. Code,
section 104.

17.  On 12 August 1980, the applicant agreed with the findings of the
formal PEB.

18.  On 14 October 1980, the applicant was released from active duty by
reason of physical disability after completing 19 years, 9 months, and 2
days of creditable active service.  He was placed on the retired list the
following day.

19.  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.

20.  Army Regulation 635-40 states 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.

21.  Army Regulation 635-40 states the phrase “instrumentality of war”
refers to a device primarily designed for military service and intended for
use in such service at the time of the occurrence of the injury.  It may
also be a device not designed primarily for military service if use of or
occurrence involving such a device subjects the individual to a hazard
peculiar to military service.  This use or occurrence differs from the use
or occurrence under similar circumstances in civilian pursuits.

22.  Army Regulation 40-501, the version in effect at the time, stated that
situational maladjustments due to acute or special stress did not render an
individual unfit because of physical disability.

23.  The VA Schedule for Rating Disabilities (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.  Unlike the VA, the Army
must first determine whether or not a Soldier is fit to reasonably perform
the duties of his office, grade, rank or rating.  Once a Soldier is
determined to be physically unfit for further military service, percentage
ratings are applied to the unfitting conditions from the VASRD.

24.  Title 38, U. S. Code, sections 1110 and 1131, permits the VA to award
compensation for a medical condition which was incurred in or aggravated by
active military service.  The VA, however, is not required by law to
determine medical unfitness for further military service.

DISCUSSION AND CONCLUSIONS:

1.  It is acknowledged that the applicant injured his back in March 1966
and was periodically treated for lower back pain.  However, in March 1980 x-
rays showed his lower back was within normal limits.  When he nonconcurred
in the findings of the informal PEB and requested a formal hearing, he
requested that the PEB reconsider only diagnoses 7 and 8.  He did not
request reconsideration of
diagnosis 3 (history of lumbosacral back strain, stable).  The bulk of his
testimony at his formal PEB concerned only diagnoses 7 and 8.  It appears
his back pain was brought up only because the PEB itself requested more
information on that condition.

2.  The rating action by the VA (concerning his back condition) does not
necessarily demonstrate an error or injustice on the part of the Army.  The
VA, operating under its own policies and regulations, assigns disability
ratings as it sees fit.  The VA is not required by law to determine medical
unfitness for further military service in awarding a disability rating,
only that a medical condition reduces or impairs the social or industrial
adaptability of the individual concerned. Consequently, due to the two
concepts involved (i.e., the more stringent standard by which a Soldier is
determined not to be medically fit for duty versus the standard by which a
civilian would be determined to be socially or industrially impaired), an
individual’s medical condition may be rated by the VA even though the Army
did not find the condition to be unfitting.

3.  The applicant’s back condition does not appear to have rendered him
physically unfit for service.  Since there is insufficient evidence to show
it was a rateable disability, it would not be appropriate to show that this
disability was a direct result of armed conflict and/or was caused by an
instrumentality of war.

4.  It is acknowledged that the MEB diagnosed the applicant with a history
of adjustment disorder secondary to psycho-social stress.  However, the MEB
Narrative Summary indicated that this condition was thought to be a
sequelae of his multiple surgeries (and therefore combined with his
recurrent gastrointestinal problems).  Since Army Regulation 40-501 stated
that situational maladjustments due to acute or special stress did not
render an individual unfit because of physical disability, this condition
was not a rateable condition by itself.  Therefore, it would also not be
appropriate to show that this condition was a direct result of armed
conflict and/or was caused by an instrumentality of war.

5.  There is insufficient evidence to show the applicant suffered from PTSD
at the time of his MEB/PEB, or that he was physically unfit for service at
the time of his MEB/PEB due to conditions that would now be considered
PTSD, or that his recurrent gastrointestinal problems were anything other
than a physical condition rather than the manifestation of a mental
disorder (i.e., PTSD).

6.  The applicant’s MEB Narrative Summary showed his past medical history
revealed a long history of gastrointestinal problems documented since 1974.
 His MEB Narrative Summary did indicate that he had some symptoms since
1964 (sic), after returning from Vietnam.  The applicant did not arrive in
Vietnam until 1965; presumably, “1964” was a typographical error.
7.  However, there is insufficient evidence to show either the applicant’s
recurrent gastrointestinal problems or his thoracic scar (which appears to
have resulted from surgeries to treat his gastrointestinal problems) were
incurred while he was engaged in armed conflict or in an operation or
incident involving armed conflict or the likelihood of armed conflict.  He
stated he injured his back while helping several Soldiers lift an
ammunition trailer to connect it to an ammunition truck, while they were in
knee-deep mud and heavy rain, but there is no indication that the incident
occurred in an operation involving armed conflict or in a likelihood of
armed conflict.  There is also no evidence to show these disabilities were
caused by an instrumentality of war (as defined by Army Regulation 635-40).

8.  Regrettably, there is insufficient evidence which would warrant
granting the relief requested.

9.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 14 October 1980; therefore, the time
for   the applicant to file a request for correction of any error or
injustice expired on   13 October 1983.  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

__jtm___  __pbf___  __rch___  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.




                                  __John T. Meixell_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060003422                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061020                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |108.08                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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