IN THE CASE OF:	  

	BOARD DATE:	  12 June 2008

	DOCKET NUMBER:  AR20070017243 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his physical disabilities incurred in combat in Vietnam be reevaluated and that he be assigned a higher percentage of disability for his injuries. 

2.  The applicant states, in effect, that he was not properly evaluated for all of his disabilities by the Physical Evaluation Board (PEB) at the time he was permanently retired and that the same disabilities that existed then are still present.  He goes on to state that he should have been evaluated for traumatic Encephalopathy with partial amnesia, latent anxiety, Ataxia, right ankle clonus, Post-Traumatic Stress Disorder (PTSD), Brain and nervous system damage, segmental Dystonia with Torticollis, amputation of his little left finger, residuals of fracture of the left middle finger with deformity, gall bladder failure and removal, defective hearing and vision and scars on his forehead, left knee and wrist.  He further states that the Department of Veterans Affairs (VA) rated him for these injuries and the Army should have done likewise.  

3.  The applicant provides a one-page explanation of his application, copies of documents from his personnel records relating to his retirement, a copy of a duty officer’s log, copies of clinical records, award orders from the Bronze Star Medal and the Purple Heart, a statement in support of claims to the VA, a copy of his PEB Proceedings, his permanent retirement orders, a copy of his DD Form 214 and DD Form 215, a list of his current disabilities rated by the VA, copies of his VA Rating Decisions showing that he is currently rated as 100% disabled by the VA.    

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 was born on 4 September 1945 and enlisted in the United States Army Reserve (USAR) under the delayed entry program on 22 April 1966. He enlisted in the Regular Army on 16 May 1966 for a period of 2 years under the warrant officer flight training program.  He completed his basic training at Fort Polk, Louisiana and his rotary wing flight training at Fort Wolters, Texas and Fort Rucker, Alabama and was commissioned as an USAR aviation branch warrant officer one (WO1) on 9 May 1967, with a concurrent call to active duty.

3.  He was transferred to Vietnam on 15 June 1967 and was assigned to Company A, 4th Aviation Battalion, 4th Infantry Division for duty as a helicopter pilot.  

4.  On 4 December 1967, the applicant was involved in a helicopter crash in which he sustained lacerations of the face, left knee, traumatic amputation of left fifth finger, and a cerebral concussion.  He was initially treated in Vietnam at the 71st Evacuation Hospital and was subsequently evacuated to the 249th General Hospital in Japan on 26 December 1967.  On 11 January 1968, he was medically evacuated to Fitzsimmons General Hospital in Denver, Colorado.    

5.  On 24 April 1968, a Medical Evaluation Board diagnosed the applicant as having Encephalopathy due to trauma, manifested by impaired memory, difficulty concentrating, latent anxiety and abnormal EEG (Unfitting), amputation of middle and distant phalanx, left 5th finger (not unfitting), Fracture of middle phalanx, left fourth finger, with residual posterior angulation (not Unfitting), High frequency hearing loss, bilateral (not unfitting), and Cicatrix, skin of knee (Not unfitting).  The applicant was present during the proceedings and did not present matters in his own behalf.  The MEB determined that the applicant was unfit for further military service and the applicant indicated that he did not desire to continue on active duty.  The MEB recommended that the applicant be referred to a Physical Evaluation Board (PEB).  The findings and recommendations of the MEB were approved on 9 May 1968.  The applicant was also promoted to the rank of Chief Warrant Officer Two (CW2) on 9 May 1968. 
 
6.  On 16 May 1968, an informal PEB was conducted at Fitzsimmons General Hospital which determined that the applicant’s diagnosis of Encephalopathy due to trauma and amputation of middle and distal phalanx, left 5th finger made the applicant unfit to perform the duties of his office, rank or grade.  The PEB recommended that the applicant be transferred to the Temporary Disability Retired List (TDRL) with recurring examinations.  

7.  On 6 August 1968, the applicant was honorably released from active duty and was transferred to the TDRL in the rank of CW2.  He had served 2 years, 3 months and 15 days of total active service.

8.  On 14 September 1972, the applicant was again reevaluated by a MEB at Fitzsimmons General Hospital.  The MEB determined that the applicant had the medical conditions and physical defects of Encephalopathy, post-traumatic, mild, improved, manifested by alleged memory deficit, Heterochromic iridocyclitis, Amputation, traumatic. Of middle and distal phalanx, left fifth finger, Post-fracture, left fourth finger, middle phalanx, with residual angulation and limitation of flexion, Hearing loss, high frequency, bilateral, Cicatrix, skin, left knee.  The MEB again determined that he was unfit for further military service and recommended that he be referred to a PEB.

9.  The applicant did not concur with the findings and recommendations of the MEB and submitted a statement in his own behalf whereas he asserted that he did not believe the MEB was giving proper consideration to the injuries he received in the helicopter crash, such as memory loss, loss of hearing and his loss of sight.  He further asserted that he deserved more consideration than was given him during the proceedings.

10.  On 30 October 1972, an informal PEB was conducted at Fitzsimmons General Hospital and recommended that the applicant be permanently retired with a disability rating of 30% based on diagnosis 1 and 2, which were chronic brain syndrome associated with brain trauma, slight; and Amputation, traumatic, middle and distal phalanx, left 5th finger with post-fracture left 4th finger, middle phalanx, with residual angulation and limitation of flexion; Rate as 2 digits of one hand, unfavorable ankylosis of minor, ring and little.  The PEB determined that diagnosis 3 through 5, Hearing loss, Heterochromic iridocyclitis, and Cholecystectomy were not unfitting and non-rated.  

11.  The applicant did not concur with the findings and recommendation of the PEB and demanded a formal hearing and appointment of counsel.  He also requested additional time to prepare his rebuttal and was granted an extension.

12.  On 4 December 1972, a formal PEB was convened with the applicant present and represented by counsel.  The PEB recommended that he be permanently retired with a disability rating of 60%.  It appears that the applicant did not agree with the findings of that board as well.

13.  On 16 January 1973, orders were published by the Office of the Adjutant General in Washington, D.C. that directed the removal of the applicant from the TDRL and that he be permanently retired by reason of physical disability with a 60% disability rating, effective 1 February 1973.

14.  On 13 February 1973, a letter was dispatched to the applicant from the Chief, Separation and Retired Affairs Division at the Office of the Adjutant General which informed the applicant that his entire case had been properly reviewed in accordance with the laws, policies and regulations governing disability retirement and that his only recourse was to apply to this Board if he believed that an error or injustice had occurred in his case.

15.  A review of the VA Rating Decisions provided by the applicant indicates that he is currently rated as 100% disabled by the Department of Veterans Affairs (DVA). 

16.  A review of the PEB Proceedings (DA Form 199) provided by the applicant clearly shows in block 11, the statement indicating that the board had considered each diagnosis recorded by the MEB and that any diagnosis not significant in adjudicating the member’s case was omitted from the PEB proceedings. 

17.  Army Regulation 635-40, Physical Evaluation for Retention, Retirement, or Separation, provides that the mere presence of an 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 may reasonably be expected to perform because of his or her office, rank, grade or rating.  

18.  Title 38, United States Code, sections 310 and 331, 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.  The VA, in accordance with its own policies and regulations, 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.  Consequently, due to the two concepts involved, 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.

19.  There is a difference between the Department of Veterans Affairs (VA) and the Army disability systems.  The Army’s determination of a Soldier’s physical fitness or unfitness is a factual finding based upon the individual’s ability to perform the duties of his or her grade, rank or rating.  The VA may find a Soldier unfit by reason of service-connected disability and may even initially assign a higher rating.  The VA’s ratings are based upon an individual’s ability to gain employment as a civilian and may fluctuate within a period of time depending on the changes in the disability.    
     
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that all of his disabilities were not properly evaluated at the time he was being considered for disability retirement has been noted and found to lack merit.  The evidence of record clearly shows that he was considered for all of the disabilities he had at the time; however, not all disabilities were considered unfitting at the time and as such were not rated by the PEB at the time. 

2.  Neither the sincerity of the applicant’s claim in regards to his physical condition nor the validity of the disability rating granted him by the VA are in question.  However, the VA assigns disability ratings and awards compensation in accordance with its own policies and regulations solely on the basis that a medical condition exists and that the said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.   

3.  Consequently, the VA rating decision pertaining to the applicant does not impact the determination made by the PEB, which was accomplished in accordance with Army regulations based on the medical evidence at the time.

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




BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Vietnam War.  The applicant and all Americans should be justifiably proud of his service in arms.





      ___        XXX                ___
                CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20070017243



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ABCMR Record of Proceedings (cont)                                         AR20070017243



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