IN THE CASE OF:	  

		BOARD DATE:	  	 18 November 2008

		DOCKET NUMBER:  AR20080014467 


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, correction of his records to show he was retired based on permanent disability.

2.  The applicant states, in effect, had he been given a medical examination prior to his separation, he believes he would have qualified for medical retirement.

     a.  The applicant states he was inducted into the Army on 21 September 1967 at Spokane, Washington.  He also states that he was a conscientious objector, attended basic combat training at Fort Sam Houston, Texas, and graduated at the top of his class.  He then attended truck driver training for 2 weeks and the medical corpsman course.

     b.  The applicant states he arrived overseas in Vietnam on 15 March 1968 and was assigned to Headquarters, 3rd Battalion, 34th Artillery, 9th Infantry Division.  On 30 April 1968, he was assigned to Battery C, 3rd Battalion,
34th Artillery, 9th Infantry Division.  He also states the unit’s personnel stayed on barges for several months and the first of his many combat experiences were on the barges, frequently taking sniper and rocket fire.  He adds that he was the only medic for the entire unit.

     c.  The applicant states the unit eventually moved from the barges to land, and the casualties increased dramatically.  He also states he was wounded in action on 13 November 1968, spent several weeks mending, and returned to his unit on 8 December 1968.  He adds that he saved several lives in the heat of battle and was awarded the Silver Star, Bronze Star Medal with “V” Device for heroism, and the Purple Heart.

     d.  The applicant states there were no mental or physical examinations upon arrival or departure from the theater of operations or at Fort Sam Houston, Texas, which was his last duty station.  The applicant also states he strongly believes that if a mental and physical examination had been performed the results would have revealed severe Post Traumatic Stress Disorder (PTSD), major hearing loss, minor skin problems, exposure to Agent Orange, and a shrapnel wound of his right arm.

     e.  The applicant states upon leaving the U.S. Army he attended Registered Nurse (RN) school and received his 4-year Bachelors degree.  He adds that his civilian career has been filled with “failure to meet standards and eventually stopped due to PTSD.”  He also states that “right now [he does] legal nurse consulting and cannot do patient care due to PTSD issues.”

3.  The applicant provides, in support of his application, a self-authored statement, dated 14 August 2008; an Ankle and Foot Clinic of Renton, P.S. Renton, Washington, letter, dated 10 June 2008; and a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), with an effective date of19 September 1969.


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 service records show he was inducted into the Army of the United States and entered active duty on 21 September 1967.


3.  The applicant’s military service records contain a statement on Headquarters, U.S. Army Reception Station, U.S. Army Training Center, Infantry, Fort Lewis, Washington, letterhead, dated 29 September 1967.  This document shows the applicant was counseled concerning designation as a conscientious objector and, based on his religious training and belief, the applicant considered himself to be a conscientious objector and conscientiously opposed to participation in combatant training and service.  This document also shows that the applicant placed his signature below the statement.

4.  On 2 October 1967, the applicant was assigned to the U.S. Army Medical Training Center, Fort Sam Houston, Texas.  Upon completion of modified basic combat, driver, and advanced individual training, he was awarded military occupational specialty (MOS) 91A (Medical Corpsman).  On 1 October 1968, upon promotion to the grade of specialist four (SP4)/pay grade E-4, the applicant’s MOS was designated MOS 91B (Medical Specialist).  The applicant was promoted to the grade of specialist five (SP5)/pay grade E-5 on
1 January 1969.

5.  The applicant's military service records contain a DA Form 20 (Enlisted Qualification Record).

     a.  Item 31 (Foreign Service) shows he was assigned to U.S. Army Pacific Command (USARPAC) in the Republic of Vietnam (RVN) from 13 March 1968 through 12 March 1969.

     b.  Item 38 (Record of Assignments), in pertinent part, shows he was assigned to Headquarters and Company A, 9th Medical Battalion, 9th Infantry Division (RVN) from 18 March 1968 through 25 April 1968.  He was then assigned to Headquarters Support Battery, 3rd Battalion, 34th Artillery,
9th Infantry Division (RVN) from 26 April 1968 through 7 March 1969.

     c.  Item 40 (Wounds) shows the applicant received a fragment wound to his right arm on 13 November 1968.

     d.  Item 41 (Awards and Decorations) shows he was awarded the Silver Star, Bronze Star Medal with “V” Device, Army Commendation Medal, National Defense Service Medal, Vietnam Service Medal, Combat Medical Badge, Republic of Vietnam Campaign Medal with Device (1960), and the Republic of Vietnam Gallantry Cross with Palm Unit Citation.

6.  A review of The Adjutant General Office, Casualty Division's Vietnam Casualty Roster shows the applicant’s name is listed on page 1917 confirming he was wounded in action in Vietnam on 13 November 1968.
7.  The applicant's military service records contain a DA Form 3082-R (Statement of Medical Condition), dated 12 September 1969.  This document shows that the applicant’s last separation examination was conducted on 15 July 1969 at
Station 2, Brooke General Hospital, Fort Sam Houston.  This document contains the statement “I underwent a separation medical examination more than three working days prior to my departure from place of separation.  TO THE BEST OF MY KNOWLEDGE, SINCE MY LAST SEPARATION EXAMINATION:” and shows the applicant placed an “X” in the block indicating “There has been no change in my medical condition.”  The applicant also placed his signature on the document.

8.  The applicant's military service records are absent any evidence that he was referred to a Medical Evaluation Board (MEB) or Physical Evaluation Board (PEB).

9.  The applicant's military service records contain a DD Form 214 that shows he was inducted into the Army on 21 September 1967 and was honorably released from active duty on 19 September 1969 under the provisions of Army Regulation 635-200 based on expiration term of service.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) shows he was awarded the Silver Star, Bronze Star Medal with “V” Device, Purple Heart, Army Commendation Medal, National Defense Service Medal, Vietnam Service Medal, Combat Medical Badge, Republic of Vietnam Campaign Medal, and the Republic of Vietnam Gallantry Cross with Palm Unit Citation.  The applicant was credited with completing 1 year, 11 months, and
29 days net active service.  He was transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training), with a terminal date of Reserve obligation of 20 September 1973.

10.  The applicant's military service records contain a Standard Form 180 (Request Pertaining to Military Records) that shows the applicant requested a copy of his military health records.  His records also contain a copy of an Informal Information Reply from the National Personnel Records Center, Military Personnel Records, St. Louis, Missouri, dated 24 August 1983, that shows the applicant was informed the medical records he requested were transferred to the Department of Veterans Affairs [formerly the Veterans Administration] (VA) and that the records may be obtained from the VA Regional Office, Portland, Oregon.

11.  In support of his application, the applicant provides a self-authored statement, dated 14 August 2008 and DD Form 214, with an effective date of
19 September 1969.  These 2 documents were previously introduced and 
considered in this Record of Proceedings.  He also provides a letter from Gerald T. K_____, DPM, NMD, Ankle and Foot Clinic of Renton, P.S. Renton, Washington, dated 10 June 2008.  Doctor K_____ provides a brief summary of the circumstances when he met the applicant in January 1971 and their mutual employment as respiratory therapists.  He also describes the emotional personal matters that the applicant shared with him about his experiences in Vietnam.  Doctor K____ states he kept in touch and remained close friends with the applicant over the years, learned the applicant had been diagnosed with PTSD, and on certain days of the year the applicant disconnected from himself and became dysfunctional.  Doctor K_____ states he believes the applicant was suffering from PTSD at the time he was discharged, but Army doctors were unaware of this diagnosis.  He adds that the applicant struggled under the circumstances, has made remarkable strides in stabilizing his life, and got the care he needed after PTSD was recognized as a real problem and concern of returning war veterans.

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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.  Paragraph 4-10 (The Medical Evaluation Board) of this Army regulation provides that medical evaluation boards 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 qualification for retention based on the criteria in
Army Regulation 40-501 (Standards of Medical Fitness), Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement).  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

13.  Title 10, U.S. Code, Section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.  Section 1203, provides for the physical disability separation with severance pay of a member who has less than 20 years service and a disability rated at less than 30 percent.

14.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time of the applicant's separation from active duty, provided the authority for separation of enlisted Soldiers upon expiration term of service (ETS); authority and general provisions governing the separation of enlisted Soldiers prior to ETS to meet the needs of the Service and its members; procedures for implementation of laws and policies governing voluntary retirement of enlisted Soldiers of the Army by reason of length of service; and the 
criteria governing the issuance of honorable, general, and under other than honorable conditions discharge certificates.  Chapter 2 (Separation of Enlisted Personnel) provides that a Soldier enlisted or ordered to active duty normally will be discharged or released from active duty on the date upon which he completes the period for which enlisted or ordered to active duty.  

15.  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.  The 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.

16.  As a matter of information, Title 38, U.S. Code, sections 1110 and 1131, permits the Department of Veterans Affairs to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a VA rating does not establish error or injustice in the applicant’s separation from the Army.  In this regard, 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 VA, 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.  In addition, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings.   Moreover, the VA may rate any service connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his records should be corrected to show he was retired based on permanent disability because, if a mental and physical examination had been performed prior to his separation, the results would have revealed severe PTSD, major hearing loss, minor skin problems, exposure to Agent Orange, and a mortar shrapnel wound of his right arm.

2.  The evidence of record shows the applicant was wounded in action in Vietnam when he received a fragment wound to his right arm on 13 November 1968.  Thus, records confirm a fragment wound of the applicant’s right arm.

3.  The evidence of record shows the applicant acknowledged in a Statement of Medical Condition, dated 12 September 1969, that his last separation examination was conducted on 15 July 1969 at Brooke General Hospital, Fort Sam Houston.  The evidence of record also shows that just prior to his separation, the applicant confirmed that there had been no change in his medical condition.  Thus, the evidence of record refutes the applicant’s contention that he was not given a physical examination prior to his separation from active duty.

4.  The evidence of record shows that Title 10 U.S. Code, section 1201 provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.  There is no evidence of record that shows the applicant was found unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. 

5.  The evidence of records shows that the applicant’s release from active duty under the provisions of Army Regulation 635-200 based upon expiration term of service was administratively correct and in compliance with applicable regulations.  In addition, the evidence of record shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time and all requirements of law and regulations were met.

6.  There is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial creditable evidence to rebut the presumption.  The applicant fails to provide such evidence.  Therefore, the applicant is not entitled to correction of his records to show he was retired based on permanent disability.

7.  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

____X____  ____X____  ____X____  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 our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.



      _________X____________
               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)                                         AR20080014467



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ABCMR Record of Proceedings (cont)                                         AR20080014467



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