RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  19 September 2007
	DOCKET NUMBER:  AR20070005987 


	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.


Ms. Catherine C. Mitrano

Director

Mr. Mohammed R. Elhaj

Analyst

The following members, a quorum, were present:


Mr. James E. Vick

Chairperson

Mr. Ronald D. Gant

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 correction of his rated percentage of disability from 60 percent to 70 percent. 

2.  The applicant states, in effect, that when he was placed on the permanent disability retired list (PDRL), the percentages were added incorrectly resulting in the wrong overall percentage of disability. 

3.  The applicant provided a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) dated 23 September 1968 and a copy of his DA Form 199 (Physical Evaluation Board Proceedings) in support of his application. 

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's records show that he enlisted in the Regular Army on 4 April 1964 and was honorably discharged on 30 June 1966 for the purpose of accepting a commission.  He was later appointed as an Infantry officer in the grade of second lieutenant, effective 1 July 1966.

3.  The applicant's records show that he served in the Republic of Vietnam as an Infantry officer during the period 27 March 1967 through 6 February 1968.  He was assigned to Company A, 3rd Battalion, 1st Infantry, 11th Infantry Brigade.

4.  The applicant's records show that he was wounded in action in the Republic of Vietnam on 19 January 1968 as a result of shrapnel wounds to the right upper extremity and the right lower extremity.  He was initially admitted to the 66th Medical Evacuation Hospital in the Republic of Vietnam and was later transferred to an Army Hospital in Okinawa, Japan, where he underwent treatment.  He was ultimately transferred to the U.S. Air Force Hospital at Carswell Air Force Base (AFB), Texas. 

5.  On 13 June 1968, a Medical Evaluation Board (MEB) convened to evaluate the applicant's clinical records, laboratory findings, health records, and medical examinations.  The MEB found the applicant medically unfit for further military service and recommended a Physical Evaluation Board (PEB) for medical discharge from the service.

6.  On 21 June 1968, a PEB convened at Fort Sam Houston, Texas, and found the applicant unfit because of physical disabilities to perform the duties of his office, rank, or grade.  The PEB determined that the applicant had the following disabilities:

	a.  Right leg, limitation of extension to 20 degrees; net rating of percentage of disability 30 percent, disability code 5261. 

	b.  Right ankle, marked limited motion associated with muscle injury; net rating of percentage of disability 10 percent, disability code 5271.

	c.  Severe internal saphenous nerve, paralysis of, right, incomplete; net rating of percentage of disability 20 percent, disability code 8527.

	d.  Scar, superficial, right lower extremity; tender and painful on objective demonstration; net rating of percentage of disability 10 percent, disability code 7804.

7.  The PEB concluded that the applicant was found medically unfit for further military service under the provisions of paragraph 3-13d(2b) of Army Regulation 40-501 (Standards of Medical Fitness) and granted him a combined rating of 60 percent disability.  Accordingly, the applicant was honorably separated on 23 September 1968 and placed on the PDRL.  The DD Form 214 he was issued shows that he completed 4 years, 5 months, and 18 days of active service.

8.  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.  Chapter 3, provides standards for medical retention.  Basically, members with conditions as severe as listed in this chapter are considered medically unfit for retention on active duty.

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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 or her office, grade, rank, or rating.  Appendix B (Army Application for Department of Veterans Affairs Schedule for Rating Disabilities or 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.  Because of differences between Army and Veterans Affairs (VA) applications of rating policies, differences in ratings may result.  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.  These percentages are applied based on the severity of the condition.

10.  Appendix B-12 states that when a Soldier has more than one compensable disability, the percentages are combined rather than added.  This results from the consideration of the individual's efficiency, as affected by the most disabling condition, then by the less disabling conditions in the order of their severity.  Thus, a person having a 60 percent disability is considered to have a remaining efficiency of 40 percent.  If he has a second disability rated at 20 percent, then he is considered to have lost 20 percent of that remaining 40 percent, thus reducing his remaining efficiency to 32 percent.  Hence, a 60 percent disability combined with a 20 percent disability results in a combined rating of 68 percent.  The combined rating for any combination of disabilities can be determined by first arranging the disabilities in their exact order of severity and then determining the percentage of each disability determine the combined ratings.  After all percentages have been combined, the resulting combined value is converted to the nearest number divisible by 10.  Combined value ending in 10 will be adjusted upward.  If the combined value included a decimal fraction of 0.5 or more as a result of applying the bilateral factor, the fraction is converted to the next higher whole number; otherwise, the decimal fraction is disregarded. (Example:  If the combined value is 64.5, first round off the fraction to make the combined value 65, which in turn is rounded to 70.  If the combined value is 64.4, the decimal fraction is disregarded and the combined value of 64 is rounded off to 60.)






DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he is entitled to 70 percent disability rating instead of the 60 percent awarded.

2.  The applicant's combined disability percentage rating is the result of the consideration of his efficiency, as affected by the most disabling condition, then by the less disabling conditions in the order of their severity.  Based on the PEB findings, the applicant's disabling factors are listed in the order of their severity.  The combined disability rating is determined as follows:

	a.  Disability 1 rated at 30 percent.

	b.  Disability 2 is rated 20 percent of the remaining 70 percent or 14 percent.

	c.  Disability 3 is rated 10 percent of the remaining 56 percent or 5.6 percent.

	d.  Disability 4 is 10 percent is the remaining 50.4 percent or 5.04 percent.

The combined total is the sum of 30 plus 14 plus 5.6 plus 5.04 equal 54.64 percent when rounded up equals 60 percent. 

3.  The evidence confirms that the applicant’s disability percentage rating was assigned based on the fact that he was physically evaluated and separated for medical disability retirement.  He received the appropriate combined rating of 60 percent after calculating the severity of each disabling condition. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__jev___  __rdg___  __rch___  DENY APPLICATION




BOARD DETERMINATION/RECOMMENDATION:

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.



						James E. Vick
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20070005987
SUFFIX

RECON

DATE BOARDED
20070919
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
108.0200
2.

3.

4.

5.

6.