IN THE CASE OF:	  

	BOARD DATE:	  19 June 2008

	DOCKET NUMBER:  AR20080004001 


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 reconsideration of his earlier request to expunge a DA Form 1059 (Academic Report) for the period 24 January through 30 June 1972 and an Officer Evaluation Report (OER) for the period 11 October 1968 through 28 February 1969 from his records; and that the Physical Evaluation Board (PEB), dated 10 October 1973, be corrected to show that he was found to be unfit for duty and that he was retired due to disability effective 3 December 1973 with all retroactive benefits and monies due to him.

2.  The applicant states that in January 2008 he petitioned the University of Massachusetts to retroactively have his name added to the list of University of Massachusetts graduates in the Class of 1975 or as an alternative, 1973, due to health reasons.  He was originally scheduled to graduate in May 1975.  Spring 1978 was his last period of attendance at the University of Massachusetts.  On 30 January 2008, the Committee on Admissions and Records of the University of Massachusetts took extraordinary action and approved his petition and backdated the date of his degree to 31 May 1978.  Again, the University of Massachusetts agreed that his academic performance was severely impacted by health issues related to post-traumatic stress disorder (PTSD) and mild traumatic brain injury with residuals of post-concussive trauma.

3.  The applicant provides a letter, dated 15 January 2008, to the University of Massachusetts; and a letter, dated 30 January 2008, from the Office of the Registrar, University of Massachusetts.


CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20070011022 on 12 February 2008.

2.  The applicant provides new evidence that will be considered by the Board.

3.  The applicant was commissioned a second lieutenant, Corps of Engineers, out of Officer Candidate School on 16 June 1967.  He arrived in Vietnam on or about 15 November 1968.  He was promoted to captain on 16 June 1969.  He departed Vietnam on or about 13 April 1971.

4.  On 13 October 1971, the applicant was assigned to the Student Detachment, Headquarters, First U. S. Army, Fort George G. Meade, MD to pursue a course of instruction in civil engineering.  The original ABCMR case indicated he attended courses at the University of Maryland, College Park, MD, but that appears to have been an error and he actually attended the courses at the University of Massachusetts.  The University of Massachusetts will be referred   to hereafter.  His course of instruction was to last from January 1972 through January 1974. 

5.  On 21 December 1971, the applicant was notified of an adverse OER for the period 11 October 1968 through 28 February 1969.  The rater signed the OER on 21 April 1969, and the indorser signed it on 30 August 1969.  The applicant acknowledged receipt of the adverse OER and indicated that the duty position was incorrect, that he was not a platoon leader, and that he was excess to authorized strength of the unit and detailed as the motor officer.  He also indicated that the delay in receiving the OER created an even greater adverse affect because he had already been promoted to captain, that his rater had also been a first lieutenant, and that he did not learn of the OER until June 1972, during a visit to the Engineer Branch.

6.  The rater made several derogatory comments on the contested OER, including, “…overall performance was characterized by mediocre organization and response to missions” and “He reacted poorly when ordered to do certain tasks; although he understood instructions, he often argued points uncooperatively.”  The rater also indicated that the applicant displayed an unwillingness to learn new duties, had a negative attitude toward learning 

material, which was job-oriented, whether it was from his own or others’ experience, or through study of appropriate literature.  New or difficult tasks, particularly those which required a special learning effort on his part, seldom received more than cursory attention.  

7.  The indorser also made several derogatory comments, stating, “[The applicant’s] performance of duty during this rating period was characterized with a lack of cooperation, continuous complaining, and an unwillingness to accomplish directed missions.”

8.  By letter dated 1 August 1972, the Engineer Branch advised the applicant that his withdrawal from the University of Massachusetts was extremely serious and raised questions as to his technical capability, maturity, and motivation.  Coupled with his poor performance while serving in Vietnam in 1968 to 1969, it placed his potential for a successful military career in doubt.  He was advised to apply himself diligently to his newly-assigned duties in Okinawa, as well as to develop a plan to complete his undergraduate education and the Advanced Course as soon as possible.

9.  On 18 December 1972, the applicant was issued a DA Form 1059 showing that he had withdrawn from school and been reassigned after he failed 4 of         5 courses for which he was enrolled during the Spring Semester 1972.  The report stated:  "His definite lack of motivation and drive was evidenced by his requesting to be reassigned at midterm."  

10.  A review of the applicant’s OER for the period 30 June 1972 through            1 November 1972 shows that the rater indicated that the applicant performed most of his assigned duties in an outstanding manner; that he was highly energetic; and that he had been selected as officer-in-charge of a Civic Action Mission to enhance his mission experience.

11.  On 31 May 1973, the U.S. Army Military Personnel Center notified the applicant that after a comprehensive and impartial review of his official military personnel records, to include OERs, civilian and military schooling, commendations, types and variety of assignments, and future potential, the Department of the Army (DA) Active Duty Board selected him for release from active duty.

12.  On 12 June 1973, the applicant underwent a separation physical.  It was found that the vision in his right eye did not meet the standards set by Army regulations.  He was reassigned to Fort Devens, MA, for processing by a Medical Evaluation Board (MEB).

13.  The applicant's OER for the period 2 November 1972 through 24 July 1973 shows he was rated as a battalion engineer officer.  His rater indicated he was responsible for preparing plans for and supervising the construction of a suspension bridge in Taiwan.  Due to the bridge’s location and numerous technical problems, it was a difficult project.  However, the applicant was very successful in the completion of the project, demonstrating not only his technical competence but also his leadership ability and his ability to get along with foreign nationals.  Because of his frequent temporary duty assignments he could not attend off-duty college courses.  He was recommended for promotion along with his contemporaries.  

14.  On 14 September 1973, the applicant underwent an MEB.  He was found medically unfit and referred to a PEB for right eye cataract with vision less than 20/800, secondary to old trauma to the right eye; malunion of the right fibular and tibia with 1 inch shortening; traumatic arthritis secondary to an old injury of the right ankle with resultant limitation of motion; bilateral high frequency hearing loss; and right anterior tibial tendonitis with crepitation.

15.  The MEB Narrative Summary (NARSUM) indicated that the applicant had numerous broken bones in the past including a fracture of the right ankle in 1959, a 1961 fracture of the left ankle, a 1962 repeat fracture of the left ankle, a 1960 nasal fracture, a 1965 left shoulder separation, and a March 1968 fracture of the right tibia and fibula suffered in a parachute jump.  In addition, he received a shrapnel wound to the right knee in November 1969, a shrapnel wound to the left knee in June 1970, and an April 1971 shrapnel injury to the right eye which resulted in his being medically evacuated from Vietnam.  

16.  On 10 October 1973, a PEB found that in accordance with paragraph          4-25a(5) of Army Regulation 635-40, because the applicant's service was soon to be terminated for reasons other than disability, his continued performance of duty gave rise to the "presumption of fitness."  As such, his normally medically unfitting condition did not constitute an acute grave illness or deterioration occurring immediately prior to or coincidentally with his separation.  The PEB determined that he did not overcome the presumption of fitness by a preponderance of the evidence.

17.  On 1 November 1973, the applicant concurred with the PEB and waived a formal hearing of his case.

18.  On 3 December 1973, the applicant was honorably released from active duty and transferred to the U. S. Army Reserve (USAR) Control Group by reason of reduction in strength.  He completed 6 years, 5 months, and 18 days of creditable active service during the period of his commissioned service.
19.  The applicant subsequently served in a USAR Troop Program Unit (TPU).  His OERs show the following:

	a.  15 March through 6 October 1974, Motor Officer:  The rater indicated the applicant had imagination, stamina, the courage of his convictions, and exceptional leadership qualities.  He was well-spoken and got his meaning across without any misinterpretation, and he influenced his subordinates in accomplishing the mission enthusiastically.  He attended all 35 scheduled assemblies.

	b.  7 October 1974 through 1 May 1975, Battalion S-4:  His rater and indorser indicated the applicant was an energetic officer who spent considerable effort in opening new approaches to battalion supply and maintenance functions. While tact was not his strongest asset, he put forth a consistency of effort which contributed to the unit.  

	c.  2 May 1975 through 1 May 1976, Logistics Officer S-4:  The rater and indorser indicated the applicant was reliable; he developed a sound plan for total logistics improvement, giving countless hours of extra duty; he had a positive attitude, very high standards, and a willingness to work hard.  He attended           57 assemblies.  

20.  The applicant's initial Department of Veterans Affairs (DVA) Rating Decision was rendered on 15 July 1975 and granted service-connection for a right eye wound; residuals of a fracture to the right tibia and fibula; irritable colon; scars, gunshot wounds, left wrist and knees; high-tone deafness; and seborrheic dermatitis.  He was granted special monthly compensation for loss of the use     of one eye, having only light perception, effective 4 December 1973.  

21.  The applicant’s OER for the period 2 May 1976 through 1 May 1977 shows he performed duties as an Operations and Training Officer.  The rater and the indorser indicated the applicant was superior to any officer of like grade and experience with whom they had served; he displayed exceptional leadership and resourcefulness in transforming a poorly-coordinated, under-trained section into one composed of highly-motivated and effective individuals; he enhanced recruiting and retention by insisting on excellent training and proper consideration of the welfare of his men; and his outstanding performance and exemplary personal qualities indicated significant potential for future service in positions of increasing responsibility.  He attended all 57 scheduled assemblies.


22.  On 11 June 1976, the applicant completed the Infantry Officer Advanced Correspondence Course.  

23.  On 15 December 1977, the applicant was promoted to major in the USAR.  

24.  On 5 September 1979, the applicant's branch transfer request from the Corps of Engineers to Infantry was approved, effective 29 August 1979.

25.  On 8 June 1981, the applicant was retroactively awarded the Silver Star for actions on 23 November 1969.  

26.  On 6 March 1985, the applicant was notified of his second nonselection for promotion and that he was eligible for transfer to the Retired Reserve or discharge.  He was advised that if he did not respond and indicate his choice by 18 April 1985, action would be taken to discharge him.  The applicant did not respond to this notification.  On 21 April 1985, he was honorably discharged from the USAR.  

27.  On 13 December 2006, the applicant petitioned the University of Massachusetts for a retroactive withdrawal of all "Incompletes" and "Fs" on his transcript due to health reasons (PTSD).  The University of Massachusetts granted his request and issued him a new transcript showing he withdrew from classes in the Spring 1971, Fall 1971, Spring 1972, and Fall 1973.  His transcript shows that he made several attempts to complete his degree during and after active duty, but withdrew on several occasions.  He changed his major to history and received his Bachelor of Arts degree on 1 February 2007.

28.  On 10 May 2007, the applicant underwent a DVA psychiatric and compensation examination.  The examiner noted that the applicant buried his PTSD symptoms for many years while he became embroiled in raising his family and running his business which was very successful until he closed it in 2002.  In March 2003, he experienced depression and sought and received treatment with a social worker.  He noted the applicant graduated from high school and went to Holy Cross College for a year before dropping out and joining the Army.  He   was diagnosed with severe PTSD.  The examiner stated that the applicant’s condition had significantly interfered with his ability to function socially, emotionally/psychologically, and especially occupationally over the last couple of years and certainly within the last year or so.  


29.  On 18 June 2007, a DVA Rating Decision granted service-connection for PTSD. 

30.  On 15 October 2007, the applicant was also diagnosed with mild traumatic brain injury due to head and concussive traumas resulting from multiple exposures to explosions and blasts while in Vietnam.  

31.  On 30 January 2008, the Committee on Admissions and Records, University of Massachusetts, backdated the applicant’s degree from 1 February 2007 to    31 May 1978.

32.  Army Regulation 623-105 (Officer Efficiency Reports), then in effect, prescribed the officer efficiency reporting system of the U.S. Army.  It included detailed instructions for the preparation, processing, and use of the U.S. Army OER.  

33.  Paragraph 1-2b of Army Regulation 635-105 stated each report was intended to report manner of performance of specific duties and for specific periods in a form which was readily usable by boards appointed for various personnel activities, such as promotions, and in the assignment of officers.  A single report provided an estimate of the officer's personal qualities, manner of performance, professional qualifications, and potential as demonstrated during a specific period and in a particular duty assignment.  Normally, no single report would be used as the sole basis of any personnel action.  The information produced by a series of reports submitted by different rating officials in a variety of duty situations became an indication of each officer's progressive development and a basis for measuring his value compared to his contemporaries.  

34.  Paragraph 1-2e of Army Regulation 623-105 stated an officer could appeal any report should he feel that it violated the intent of the regulation.  A reclama was advisable only if he could provide substantial evidence in support of his belief.  A request that merely alleged an unjust rating was not substantial evidence.  

35.  Paragraph 1-3j of Army Regulation 623-105 stated adverse reports must have been referred to the rated officer by the indorser for comment after the indorser completed his portion of the report.  If the rated officer had departed the organization, the report would be forwarded through normal rating channels to the Adjutant General, Department of the Army, who would then refer the report to the rated officer for comment.


36.  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 MEBs, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  

37.  Army Regulation 635-40 states 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 reasonably may be expected to perform because of his or her office, rank, grade or rating.  It states 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.

38.  Army Regulation 635-40, the version in effect at the time, further stated that when a member was being separated by reason other than physical disability, his or her continued performance of assigned duty commensurate with his or her rank or grade until he or she was scheduled for separation or retirement created a presumption that he or she was fit.  That presumption could be overcome only by clear and convincing evidence that he or she was unable to perform his or her duties for a period of time 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.

39.  Title 38, U. S Code, sections 1110 and 1131, permit the DVA to award compensation for disabilities which were incurred in or aggravated by active military service.  The DVA, however, is not required by law to determine medical unfitness for further military service. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant requested that his DA Form 1059 for the period 24 January through 30 June 1972 be expunged from his records.  He contended, in effect, that the DA Form 1059, which he received after he had withdrawn from his Army-paid-for civilian school after failing 4 of 5 courses, should be expunged because he was suffering from PTSD and the effects of a traumatic brain injury.  He contended, in effect, that it should be expunged because the University of 

Massachusetts later backdated the date of his degree to 31 May 1978, basically agreeing that his academic performance was severely impacted by his PTSD and mild traumatic brain injury.

2.  As noted in the previous consideration of his case, the applicant’s academic history showed that he quit college to join the Army and that a major finding by his rater in the adverse OER was that he had a negative attitude toward learning material, whether it was from his own or others’ experience or through study of appropriate literature.  The University of Massachusetts was free to be as generous in their interpretation of the circumstances of the applicant’s withdrawal as they pleased.  However, the fact that in 2008 the University backdated his degree to 31 May 1978 is insufficient evidence to show that his withdrawal from the University in 1972 was due to any reason other than a continuation of behavior that began before he joined the Army.

3.  The applicant requested that his OER for the period 11 October 1968 through 28 February 1969 be expunged from his records.  He makes no contentions concerning this OER with his current application; however, in his original application he contended that his traumatic brain injury and his PTSD caused his inadequate duty performance while on active duty. 

4.  It appears the applicant received one adverse OER while on active duty, the contested OER for the period 11 October 1968 through 28 February 1969.

5.  The applicant received two subsequent OERs while on active duty, one for the period ending 1 November 1972 and one for the period ending 24 July 1973. Both OERs were very favorable, which tends to indicate that neither a traumatic brain injury nor PTSD was the cause of the inadequate duty performance that resulted in the contested OER.  In any case, he provides no evidence to show that the inadequate duty performance that resulted in the contested OER was the result of a traumatic brain injury or PTSD.

6.  The applicant also requested that the PEB, dated 10 October 1973, be corrected to show that he was found to be unfit for duty and that he was retired due to disability effective 3 December 1973 with all retroactive benefits and monies due to him.

7.  The mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  Disability compensation is not an entitlement acquired by reason of service-incurred illness or injury.  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.
8.  The applicant’s subsequent successful military career for an additional           12 years despite his disabilities, even his eye condition, clearly indicates that he did not meet the criteria for a disability retirement in 1973.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___xx___  ___xx___  ___xx___  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 to amend the decision of the ABCMR set forth in Docket Number AR20070011022 dated 12 February 2008.



	_________xxxx_________
      	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)                                         AR20080004001



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ABCMR Record of Proceedings (cont)                                         AR20080004001



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