IN THE CASE OF:	  

	BOARD DATE:	  29 JULY 2008

	DOCKET NUMBER:  AR20080007352 


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, in effect, that his release from active duty on 
20 September 1971 be changed to a retirement due to permanent physical disability, and that he be entitled to retirement pay. 

2.  The applicant essentially states that he was released from the hospital at Fort Knox, Kentucky by an Air Force doctor, and had to report to Fort Campbell, Kentucky with a permanent profile to complete 11 months of service.  He also believes that he should have been put before a medical board to be considered for retirement due to disability. 

3.  The applicant provides a VA Form 21-6782 (Original Disability Compensation), his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), a letter, dated 9 April 2008, from a Franklin County, Ohio veterans service officer addressed to an employee of The American Legion with copies of the veterans service officer's credentials, a VA Form 21-22 (Appointment of Veterans Service Organization as Claimant's Representative), dated 9 April 2008, his 2008 American Legion membership card, a letter, dated 15 April 2008, and statement, dated 11 June 2008, from a military review boards representative from the American Legion in support of this 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 military records show that he enlisted in the Regular Army on 19 August 1968.  After completing initial entry training, he departed for the Republic of Vietnam on 11 January 1969, and was assigned to the 102nd Engineer Company.  He was wounded in action on 21 May 1970, and was ultimately reassigned to the Medical Holding Company, Ireland Army Hospital at Fort Knox, Kentucky on or about 9 June 1970.  In September 1970, he was released from the Medical Holding Company, and was reassigned to Company D, 51st Engineer Battalion at Fort Campbell, Kentucky in October 1970.  On 
20 September 1971, the applicant was honorably released from active duty and transferred to the United States Army Reserve Control Group.  On 1 August 1974, he was honorably discharged.  

3.  The applicant’s military records show that he was issued a profile for a healed fragmentation wound to his left knee.  However, the DD Form 3349 (Medical Condition – Physical Profile Record) clearly shows that his medical profile was only temporary in nature, and that he was to report to a medical facility 90 days from the date of his profile for further physical profile evaluation or medical treatment or disposition.  It should be noted that 90 days after this profile was issued, the applicant had been dropped from the rolls of the Army and classified a deserter, for which he was later court-martialed for.  

4.  The applicant's separation physical which was completed in July 1971 essentially shows that he had a physical profile in the lower extremities portion of his profile.  However, it does not show that he was ever awarded a permanent physical profile which would have warranted medical board proceedings.  Additionally, an orthopedic consultation essentially cleared him for separation, and the applicant was cleared by competent medical authority for separation.  It should be noted that the last evaluation report on the applicant, which covered the period April 1970 through February 1971 effectively shows that he was capable of performing his duties despite his medical profile.

5.  The applicant essentially stated that he was released from the hospital at Fort Knox, Kentucky by an Air Force doctor, and had to report to Fort Campbell, Kentucky with a permanent profile to complete 11 months of service.  He also believes that he should have been put before a medical board to be considered for retirement due to disability. 

6.  The applicant provided a VA Form 21-6782 which essentially shows that he was awarded a combined disability rating of 50 percent by what is now called the Department of Veterans Affairs (DVA).  He also provided, in pertinent part, a statement from a military review boards representative from The American Legion.  This representative opined that the issues raised on the applicant's 
DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552) amply advance his contentions and substantially reflect the probative facts needed for an equitable review of his case and, accordingly, rested the applicant's case on the evidence of record.

7.  Chapter 4 of Army Regulation 635-200 (Enlisted Personnel), in effect at the time, provided that a member will be separated upon expiration of enlistment or fulfillment of their service obligation.

8.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides, in pertinent part, 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.  This regulation also provides, in pertinent part, 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.  The presumption of fitness may be overcome if the evidence establishes that an acute, grave illness or injury or other significant deterioration of the Soldier's physical condition occurred immediately prior to, or coincident with processing for separation or retirement for reasons other than physical disability and which rendered the Soldier unfit for further duty.

9.  Title 38, United States Code, sections 1110 and 1131, permit the Department of Veterans Affairs (DVA) to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a DVA rating does not establish error or injustice in whether or not an Army rating is given, or in an Army rating that is given.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The DVA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual’s civilian employability.  Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at different positions.  Furthermore, unlike the Army, the DVA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings. The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while the DVA may rate any service connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.

10.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his release from active duty on 20 September 1971 should be changed to a retirement due to permanent physical disability, and that he be entitled to retirement pay. 

2.  The fact that the applicant was wounded in action during his service in Vietnam is not questioned, nor was the fact that he possessed a physical profile as a result of his wounds.  However, there is no evidence in the applicant's military records, and the applicant failed to provide any evidence which proves, by a preponderance of the evidence, that he was ever issued a permanent physical profile which would have warranted medical board proceedings.  Additionally, the applicant's military records appear to show that he continued performing duties commensurate with his rank or grade until he was released from active duty, which created a presumption that he was fit.  As a result, the fact that he now, more than 36 years after the fact, contends that his release from active duty on 20 September 1971 should be changed to a retirement due to permanent physical disability, and that he be entitled to retirement pay does not begin to approach the threshold of proving, by a preponderance of the evidence, that an error or injustice occurred.  In view of the foregoing, there is no basis for granting relief to the applicant in this case.




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.




      ___        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)                                         AR20080007352



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ABCMR Record of Proceedings (cont)                                         AR20080007352



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