IN THE CASE OF:	  

	BOARD DATE:	  10 July 2008

	DOCKET NUMBER:  AR20080007385 


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:

	a.  his 40 percent disability rating be increased to 70 percent;

	b.  item 13a (Character of Service) of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) be corrected to show he was retired medically [Note:  This is construed to mean that he also requests correction of Item 11a (Type of Transfer or Discharge) as well];  

	c.  item 15 (Reenlistment Code) of his DD Form 214 be corrected; and

	d.  his DD Form 214 corrected to show all awards to which he is entitled, including the Purple Heart and the Air Medal with "V" Device.

2.  The applicant states, in effect, that his DD Form 214 contains errors which require correcting.  He also contends that he should have been rated 70 percent disabled. 

3.  The applicant provides copies of his Purple Heart and Air Medal with "V" Device orders; and a letter from the Department of Veterans Affairs (DVA) Regional Office, Muskogee, Oklahoma.




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.  On 20 October 1965, the applicant enlisted in the Regular Army for a period of 3 years.  He was trained in, awarded, and served in military occupational specialty (MOS) 11B (Light Weapons Infantryman).  He attained the grade of specialist five/E-5.  On 28 February 1968, his primary MOS was changed to 67N (Crew Chief).

3.  The applicant served in the Republic of Vietnam (RVN) from 3 May 1966 through 17 May 1968.  He performed duties as a security guard with the 14th Security Platoon; as a door gunner with the 161st Aviation Company; and as a machine gunner with both the 161st Aviation Company and Company A, 
123rd Aviation Battalion.

4.  General Orders Number 5, Department of the Army, Headquarters (HQ),
27th Surgical Hospital, dated 18 April 1968, awarded the applicant the Purple Heart for wounds received in action on 17 April 1968.  The applicant was a door gunner when his helicopter was shot down.  He received burns and other injuries in the incident.  The Purple Heart is not shown on his DD Form 214.

5.  On 16 August 1968, the applicant was honorably released from active duty under the provisions of Section VII, Chapter 5, Army Regulation 635-200 (Enlisted Personnel Separations), under the early overseas returnee program.  He was credited with 2 years, 9 months, and 27 days of active Federal service.  He was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement).  His DD Form 214 shows he was awarded the Air Medal; however, a review of his General Orders Number 5734, HQ, 1st Aviation Brigade, dated 29 November 1967, shows he was awarded the Air Medal with "V" Device. 

6.  On 27 May 1970, he was notified that he was medically disqualified for retention in the USAR based on his medical records from the Department of Veterans Affairs (DVA) and that he could request discharge or transfer to the Retired Reserve.  The DVA diagnosed him with burn scars and skin grafts, left upper extremity, disability slight; drug withdrawal, acute symptoms of nausea and vomiting after withdrawal from Valium, Talwin and Darvon; cervical spina bifida occulta, congenital; conversion reaction; and a premorbid personality, emotionally unstable personality.  The DVA indicated that his degree of capacity was minimal and temporary and that his diagnoses were rendered for treatment purposes and not as determinative as a basis for compensation or pension purposes.  The applicant did not respond to this notification.

7.  On 2 September 1970, the applicant made application to the ABCMR for disability retirement.  In support of his request he submitted a letter from The Surgeon General, who opined the applicant was medically fit at the time of his discharge.  He submitted DVA rating decisions with a combined 70 percent disability rating for traumatic arthritis of the cervical spine; chronic intermittent subluxation of the left sternal clavicular joint; split thickness of skin graft left arm, third degree burns; and conversion reaction.  He sustained full thickness burns over the left upper arm and scattered areas of superficial partial thickness burns over his fact after being shot down in a helicopter.  He also sustained a contusion or strain of his cervical spine with localized pain and tenderness, but with no neurological abnormalities and no loss of motion.  

8.  On 20 January 1971, the ABCMR considered the applicant's request for disability retirement.  The ABCMR determined that the applicant was physically unfit to perform the duties of his office, rank or grade by reason of (1) traumatic arthritis, 20 percent disabling, (2) chronic intermittent subluxation of left sternal clavicular joint, 10 percent disabling, (3) split-thickness skin graft, left arm, third degree burns, 10 percent disabling, and (4) conversion reaction, 10 percent disabling; that the disabilities may be permanent with a combined rating of 40 percent under the Veterans Administration Schedule for Rating Disabilities (VASRD); that the disabilities were incurred while he was entitled to receive basic pay as a member of the Regular component of active duty; that the approximate date of origin or inception was prior to 16 August 1968; that they were incurred during a time of war or national emergency; that they did not result from misconduct or willful neglect; that they were not incurred during a period of unauthorized absence; and that they were the proximate result of the performance of duty and in line of duty; and that he was relieved from active duty on 16 August 1968 by reason of physical disability and placed on the Temporary Disability Retired List (TDRL) Retired List of the Army effective 17 August 1968 
under the provisions of Title 10 U.S. Code, Section 1202, with entitlement to retired pay of the highest grade satisfactorily held within the meaning of Title 10, U.S. Code, Section 1371.

9.  On 10 September 1971, the applicant was issued a DD Form 215 (Correction to DD Form 214, Armed Forces of the United States Report of Transfer or Discharge) showing that he was retired under the provisions of Title 10, U.S. Code, Section 1552.  His type of discharge was changed in Item 11a to "Retired" and the narrative authority (Item 11c) was changed to “UP 10 USC 1552” (Title 10, U.S. code, Section 1552).  His reenlistment code of RE-1 was not changed.

10.  On 14 October 1971, the applicant underwent a periodic TDRL examination. It was recommended that he remain on TDRL status and be reevaluated in
12 months.  It was also recommended that he receive psychotherapy for neuropsychiatric problem.  

11.  On 1 February 1972, a Physical Evaluation Board (PEB) met and recommended that the applicant be retained on the TDRL with reexamination during February 1973.  On 14 February 1972, the applicant concurred with the PEB's findings and recommendations and waived a formal hearing of his case.  

12.  On 1 March 1972, the applicant was notified by the U.S. Army Physical Review Council that his PEB recommendations had been modified.  This modification evaluated the applicant's disabilities as follows: (1)  split thickness skin graft, scars, burns, 3rd degree, left arm, rated as 20 percent disabling, (2) conversion reaction, moderate, rated as 10 percent disabling, and (3) chronic intermittent subluxation of left sternal clavicular joint, without loss of motion, rated as 10 percent disabling.  It retained the applicant's combined rating of 40 percent, and recommended permanent disability retirement.    

13.  On 10 March 1972, the applicant concurred with the findings of the U.S. Army Physical Disability Review Council.  

14.  On 30 April 1972, the applicant was removed from the TDRL and permanently retired as a specialist five/E-5, with a 40 percent disability rating.

15.  The applicant provided an undated letter from the DVA Regional Office showing that he is 70 percent disabled due to a conversion reaction (50 percent); advanced arthritis, traumatic, cervical spine (30 percent); sterno-clavicular subluxation, left (10 percent); burns, 3rd degree, left arm with grafting
(10 percent); fracture, 8th and 9th ribs, left (0 percent); and an indirect inguinal hernia (0 percent).  

16.  The applicant did not submit any new or substantive medical evidence to show that he was erroneously rated as 40 percent disabled at the time of his retirement or that shows he should have been rated as 70 percent disabled.

17.  Review of the applicant's record indicates entitlement to additional awards and decorations that are not shown on his DD Form 214.

18.  The applicant's records show that he received ratings of excellent in conduct and efficiency.  There is no evidence the applicant was disqualified for award of the Army Good Conduct Medal (AGCM).

19.  Army Regulation 672-5-1 (Military Awards), in effect at the time, provides that the AGCM is awarded to individuals who have completed a qualified period of active duty enlisted service.  This period is 3 years except in those cases when the period for the first award ends with the termination of a period of Federal military service.  The enlisted person must have had all “excellent” conduct and efficiency ratings and no convictions by a court-martial.  Ratings of "Unknown" for portions of the period under consideration are not disqualifying.  Service and efficiency ratings based upon academic proficiency of at least "Good" rendered subsequent to 22 November 1955 are not disqualifying.

20.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows the applicant is entitled to award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation based on Department of the Army General Orders Number 22, dated 1968. 

21.  The applicant's records show he was awarded the Vietnam Service Medal.  However, his DD Form 214 does not show any bronze service stars indicating campaign credit.  His records indicate he participated in 4 campaigns, the Vietnam Counteroffensive Phase II, the Vietnam Counteroffensive Phase III, and the TET Counteroffensive, and the Vietnam Counteroffensive Phase IV campaigns.   

22.  Appendix B of Army Regulation 600-8-22 lists all approved Army campaigns, including campaigns of the Vietnam War.  This same regulation states that a bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each campaign.

23.  Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) according to the provisions of Title 10, United States Code (USC) , Chapter 61, (10 USC 61) and Department of Defense Directive (DODD) 1332.18.  It 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.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.

24.  Army Regulation 635-5 (Separation Documents), then in effect, prescribed policies and procedures regarding separation documents (DD Form 214/215).  Items 11c and 13a, and 14 of the DD Form 214 are completed in accordance with Army Regulation 635-5-1.

25.  Army Regulation 635-5-1 (SPD Codes) provided the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPN [now called the SPD (Separation Program Designator) Codes] codes to be entered on the DD Form 214.  The regulation in effect at the time of the applicant's discharge directed that "SPN code 270 -placed on temporary disability retired list" would be entered as the narrative reason for chapter 4-24b(2) of Army Regulation 635-40. 

26.  Additionally, Table 2-3 (SPD/RE Code Cross Reference Table), AR 635-5-1 (Separation Documents) establishes RE Codes to be assigned for each SPD.  Currently, a separation code of "SFK" applied to persons who are separated under the provisions of chapter 4-24b(2) of Army Regulation 635-40.  The SPD/RE Code Cross Reference Table shows that an RE code of 4 is the applicable RE code assigned for individuals separated under the provisions of Army Regulation 635-40, chapter 4-24b(2).  An RE code of RE-4 means the applicant was separated from his last period of service with a disqualification which cannot be waived and he ineligible for reenlistment. 

27.  Paragraph 3-1 of Army Regulation 635-40 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.

28.  Congress established the VASRD as the standard under which percentage rating decisions are to be made for disabled military personnel.  Percentage ratings in the VASRD represent the average loss in earning capacity resulting from diseases and injuries.  The ratings also represent the residual effects of these health impairments on civilian occupations.  Part 4, paragraph 4.1 of the VASRD states that the rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such disease and injuries and their residual conditions in civil occupations.

29.  Title 38, United States Code, sections 1110 and 1131, permit the DVA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher DVA rating does not establish error or injustice in the Army rating.  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 the 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 a different disability rating based on the same impairment.

30.  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.  A common misconception is that veterans can receive both a military retirement for physical unfitness and a DVA disability pension.  By law, a veteran can normally be compensated only once for a disability.  If a veteran is receiving a DVA disability pension and the ABCMR corrects the records to show that a veteran was retired for physical unfitness, the veteran would have to choose between the DVA pension and military retirement

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant was placed on the TDRL and temporarily retired under the provisions of Army Regulation 635-40, chapter 4-24b(2)  and Title 10, U.S. Code Section 1552 for his disabilities of (1) split thickness skin graft, scars, burns, 3rd degree, left arm, rated as 20 percent disabling, (2) conversion reaction, moderate, rated as 10 percent disabling, and (3) chronic intermittent subluxation of left sternal clavicular joint, without loss of motion, rated as 10 percent disabling.  His overall combined rating was
40 percent.  The applicant concurred with the PEB's findings and did not request a formal hearing of his case.  On 30 April 1970, he was removed from the TDRL and permanently retired due to his disabilities.

2.  The applicant did not provide any new of substantive medical evidence to rebut the PEB's findings.  He instead relies upon the 70 percent rating given to him by the DVA as evidence that he was at least 70 percent disabled at the time of his retirement.  In the absence of medical evidence to the contrary, administrative regularity is presumed in the applicant's disability processing.  His separation appears to have been in compliance with law and regulations, and his rights were fully protected during his discharge process.  

3.  The fact that the DVA, in its discretion, has awarded service connection for the applicant’s physical conditions is a prerogative exercised within the policies of that agency.  It does not, in itself, establish physical unfitness for Army purposes. Further, the applicant's initial rating by the DVA was not available for review; the rating decision furnished by the applicant appears to be his current rating and the effective date of the disability rating is unknown.

4.  The DVA rating decision provided by the applicant does not establish entitlement to medical retirement or disability separation from the Army.  Operating under different law and its own policies and regulations, the DVA, which has neither the authority, nor the responsibility for determining medical unfitness for military service, awards ratings because a medical condition is 
related to service; i.e., service-connected.  Furthermore, the DVA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.

5.  Given the above, the applicant has not furnished sufficient medical evidence to show that he was 70 percent disabled at the time of his retirement.

6.  The applicant's DD Form 215 issued on 10 September 1971 to correct his narrative reason for discharge did not show that he was temporarily placed on the TDRL under the provisions of Army Regulation 635-40, chapter 4-24b(2), and assigned an SPN of 270.  This addition will be directed below.  However, the DD Form 215 did correct Item 11a to "Retired" and "Honorable" is correctly shown in Item 13a.

7.  Regarding the applicant's RE code of RE-1.  Army regulations normally assign an RE code of RE-4 for individuals placed on the TDRL.  However, to effect the change the applicant is requesting, would result in an action less favorable to the applicant and it is a policy not to correct an administrative error if the correction would result in a less favorable action to the applicant.  Therefore, no action will be taken to change the applicant's RE code on his DD Form 214.

8.  General Orders awarded the applicant the Purple Heart.  Therefore, he is entitled to have his record corrected to show this award.

9.  General Orders awarded the applicant the Air Medal with "V" Device.  Therefore, he is entitled to have his record corrected to show he was awarded the Air Medal with "V" Device.

10.  The applicant completed a qualifying period of service for the first award of the AGCM.  There is no evidence in the available records which show the applicant was disqualified for this award.  Therefore, the applicant is entitled to award of the AGCM for the period 20 October 1965 through 16 August 1968 and to correction of his records to show the award of the AGCM (First Award).

11.  General Orders awarded the applicant's unit the Republic of Vietnam Gallantry Cross With Palm Unit Citation which is not shown on his DD Form 214. Therefore, he is entitled to have his records corrected to show this foreign unit award.

12.  Evidence of record shows that the applicant participated in 4 campaigns during his service in the RVN.  Therefore, he is eligible for award of 4 bronze service stars to be affixed on his already-awarded Vietnam Service Medal. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__XXX __  __XXX__  __XXX__   GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  adding "Army Regulation 635-40, chapter 4-24(b)(2), placed on the TDRL, SPN 270" in Item 11c of the applicant's DD Form 214;

	b.  adding the already-awarded Purple Heart;

	c.  deleting the Air Medal from his DD Form 214 and adding the Air Medal with "V" Device;

	d.  awarding the applicant the AGCM (First Award) for the qualifying period of 20 October 1965 through 16 August 1968 and correcting the record to show this award;

	e.  awarding the Republic of Vietnam Gallantry Cross with Palm Unit Citation and correcting the record to show this award; and

	f.  deleting the Vietnam Service Medal from his DD Form 214 and adding the Vietnam Service Medal with 4 bronze service stars.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to changing Item 13a to show the applicant was medically retired and changing the applicant's RE code.



      ___        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)                                         AR20080007385



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ABCMR Record of Proceedings (cont)                                         AR20080007385



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