RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  15 November 2007
	DOCKET NUMBER:  AR20070011889 


	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:


Ms. Margaret K. Patterson

Chairperson

Mr. Larry C. Bergquist

Member

Mr. Dale E. DeBruler

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 his physical disability retirement rating be adjusted to 80 percent and the associated adjustment to his retired pay be made.

2.  The applicant states that he was retired for physical disability at the rating of 60 percent in July 1972 before anything was known of or a relationship was established between "Agent Orange" and Type II diabetes and diabetic nephropathy.  He concludes that he went to the Department of Veterans Affairs (DVA) in September 2006 and that after several attempts, his DVA rating increased to 80 percent.

3.  The applicant provided a self-authored letter, dated 7 June 2007; copies of his DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 31 July 1972 and 8 May 1967; and a copy of the DVA Rating Decision, dated 21 May 2007, 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.  With prior enlisted service from 1 February 1966 to 8 May 1967, the applicant was commissioned as an infantry officer 2nd lieutenant (2LT) in the U.S. Army Reserve (USAR) on 9 May 1967 and served at different locations as a platoon leader, staff officer, and instructor.  He was promoted to 1st lieutenant (1LT) on 9 May 1968 and to captain (CPT) on 9 May 1969. 

3.  The applicant's records show that he served two tours in the Republic of Vietnam.  He served as a platoon leader during the period 4 May 1968 through 29 December 1968 and was assigned to Company B, 3rd Battalion, 39th Infantry, 9th Infantry Division.  He then served as a staff officer during the period 7 July 1970 through 16 April 1972 and was assigned to Headquarters and Headquarters Company, 11th Infantry Brigade, 23rd Infantry Division. 

4.  The applicant's records show that he was awarded the National Defense Service Medal, the Army Good Conduct Medal, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal with 1960 Device, the Bronze Star Medal with "V" Device (2nd Oak Leaf Cluster), the Army Commendation Medal (2nd Oak Leaf Cluster), the Air Medal, the Purple Heart (1st Oak Leaf Cluster), the Parachutist Badge, the Air Assault Badge, the Combat Infantryman Badge, and two Overseas Bars.

5.  The applicant's records show that he was wounded in the Republic of Vietnam on two occasions:

	a.  On 11 December 1968, he received multiple fragment wounds resulting in the loss of feeling in the left foot, lower right leg, and left forearm.  He was evacuated for treatment to Camp Zama, Japan on 20 December 1968 and ultimately to Walter Reed Army Medical Center on 29 December 1968 where he remained until 17 February 1969.  
	
	b.  On 2 April 1972, he received shrapnel wounds resulting in a traumatic retinal detachment with dislocated lens and an iridocyclitis, with severe vitreoretinal adhesions.  He was evacuated for treatment to Camp Zama, Japan, on 6 April 1971 and ultimately to Fort Gordon, Georgia on 15 April 1971. 

6.  On 14 February 1972, the applicant underwent a medical examination where it was determined that he suffered from total retinal detachment in the right eye, left radial neuropathy, and left posterior tibial neuropathy.  The attending physician noted that the applicant was sent to the Neurology department for evaluation of his neurology, secondary to shrapnel wounds received on 20 December 1968, also in the Republic of Vietnam.  The physician also noted that the applicant's neurological examination was within normal limits with the exception of the multiple shrapnel wounds, minimal weakness of the left radial nerve, minimal weakness of the left posterior tibial nerve, hypalgesias, and absent right and left knee jerk.  The attending physician further recommended that the applicant's medical condition did not meet the standards for retention in accordance with Army Regulation 40-501 (Standards of Medical Fitness) and referred the applicant to a Physical Evaluation Board (PEB).

7.  On 28 February 1972, a Medical Evaluation Board (MEB) convened at Fort Benning, Georgia, and determined that the applicant was medically unfit for duty due to total retinal detachment in his right eye, left radial neuropathy, and left posterior tibial neuropathy.  The MEB concluded that the applicant had a loss of sight in his right eye and recommended the applicant be referred to a PEB. 

8.  On 9 March 1972, an informal PEB convened at Fort Gordon, Georgia, and found the applicant's condition prevented him from performing his duties and determined that he was physically unfit due to blindness in one eye.  The applicant was rated under the DVA Schedule for Rating Disabilities (VASRD) code 6070 and granted a 30 percent disability rating.  The PEB also recommended the applicant be permanently retired from the service.   The applicant did not concur with the PEB's findings and recommendations and requested a formal hearing.

9.  On 14 March 1972, the applicant submitted a rebuttal statement disagreeing with the PEB findings and recommendations.  He requested a 40 percent rating for the loss of his eye.  Additionally, he requested a disability rating for the wounds in his arm and legs.  

10.  On 9 May 1972, a formal PEB convened at Fort Gordon, Georgia, with the applicant present.  The PEB found that the applicant's condition prevented him from performing his duties and determined that he was physically unfit.  The applicant was rated under the VASRD code 6070, blindness in one eye, and granted a 30 percent disability rating.  He was also rated under VASRD code 7800, slight disfiguring facial scars, but was granted zero percent disability rating. The PEB also recommended the applicant be permanently retired from the service.  The applicant, again, did not concur with the PEB's findings and recommendations and submitted a rebuttal letter.

11.  In his rebuttal letter, dated 18 May 1972, the applicant requested 40 percent disability rating for the loss of sight in his right eye, 10 percent disability rating for active pathology, and 10 percent disability rating to be combined with the visual loss of sight in his right eye. 

12.  On 22 May 1972, the formal PEB re-convened at Fort Gordon, Georgia.  The PEB found that the applicant's condition prevented him from performing his duties and determined that he was physically unfit.  The applicant was rated under VASRD code 6070, blindness in one eye, and granted a 30 percent disability rating and under VASRD code 7800, slight disfiguring facial scars, and granted 10 percent disability rating.   The PEB also recommended the applicant be permanently retired from the service.  The applicant did not concur with the PEB's findings and recommendations and submitted a rebuttal letter.


13.  On 1 June 1972, the applicant submitted a rebuttal letter stating that he agreed with the 30 percent disability rating for VASRD code 6070 and the 10 percent disability rating for VASRD code 7800. However, he requested an a 10 percent additional rating for to VASRD code 6070 due to painful infection in his right eye that required continuing medication and treatment.

14.  On 5 June 1972, the members of the formal PEB considered the applicant's 1 June 1972 rebuttal letter and issued a letter to the Chairman of the U.S. Army Physical Review Council adhering to their original findings of 23 May 1972.

15.  On 14 June 1972, the U.S. Army Physical Review Council recommended approval of a modified PEB Proceedings to show the applicant was also rated under VASRD code 8525, paralysis of posterior left tibial nerve, and granted a 10 percent disability rating; VASRD code 8514, paralysis of radial nerve, incomplete, and granted 20 percent disability rating; and recommended a combined disability rating of 60 percent.

16.  On 31 July 1972, the applicant was honorably retired from the Army in accordance with Title 10, USC, Section 1201, by reason of physical disability. The DD Form 214 he was issued confirms he completed a total of 6 years and 6 months of creditable active military service.

17.  In a self-authored letter, the applicant stated that he retired in 1972 before Agent Orange and/or Type II diabetes were known or considered.  He also adds that he has Type II diabetes and neuropathy associated with it.  The DVA has assigned him an 80 percent overall rating including his other injuries.   

18.  The DVA Rating Decision, dated 18 May 2007, shows that the applicant's DVA disability rating as well as his DVA monthly payments have increased.

19.  Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating at least 30 percent.  Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rating at less than 30 percent.  

20.  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 chapter 3 of Army Regulation 40-501.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

21.  Paragraph 3-1 provides that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade or rating.  The Army must find that a service member is physically unfit to reasonably perform their duties and assign an appropriate disability rating before they can be medically retired or separated

22.  Paragraph 3-2b provides for retirement or separation from active service.  This provision of regulation 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.  The regulation also states that, when a Soldier is being processed for separation or retirement 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 or retirement creates a presumption that the Soldier is fit. 

23.  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.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career.  The DVA does not have authority or responsibility for determining physical fitness for military service.  The DVA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. As a result, these two Government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment.  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. 


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he is entitled to an increase in his disability rating from 60 percent to 80 percent and adjustment of his retired pay accordingly.

2.  The applicant's medical records and physical examination were continually reviewed by the PEB and the U.S. Army Physical Review Council in 1972.  He was granted a formal hearing in which he appeared before the PEB to personally present his case and to be questioned by the board.  It appears that he was granted ample opportunity to present his case and that the PEB considered his medical condition and level of disability over a lengthy period of time and in much detail.  After a review of the entire case file, the U.S. Army Physical Review Council determined that the PEB's findings and recommendations were supported by substantial evidence and affirmed the decision of the formal PEB.

3.  There is no evidence of record that the MEB, the informal PEB, the formal PEB, or the Army Physical Review Council did not have access to all evidence and available medical records when considering the applicant's case.  The formal PEB states that all available medical records and sworn testimony by the soldier were considered in their decision.  The Army Review Council states the applicant's rebuttal to the formal PEB was reviewed, on three separate occasions, along with the entire case file.

4.  The disability rating assigned by the Army was based on the level of disability at the time of separation, 31 July 1972.  The Department of Veterans Affairs evaluates veterans throughout their lifetime, adjusting the percentage of disability based upon that Agency's examinations and findings.  Any changes in the severity of a disability should be referred to that Agency.

5.  In view of the foregoing, there is no evidence to grant a relief in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__mkp___  __lcb___  __ded___  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.




						Margaret K. Patterson
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20070011889
SUFFIX

RECON

DATE BOARDED
20071115
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
108.0200
2.

3.

4.

5.

6.