IN THE CASE OF:	  

		BOARD DATE:	        29 January 2009

		DOCKET NUMBER:  AR20080015503


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 correction of his 16 December 1971 (1 November 1969 edition) AGPZ Form (Data for Retired Pay) to show in Item 29 (Physical Disability Information Pertinent to the Dual Compensation Act of 1964) that he was “retired for disability caused by an instrumentality of war and incurred in line of duty during a period of war.”  In effect, the applicant seeks to qualify for Combat-Related Special Compensation (CRSC).

2.  The applicant states he received gunshot wounds to his upper right arm and chest in October 1968 while serving as an infantry platoon leader with Charlie Company, 6th Battalion, 31st Infantry, 9th Infantry Division, Republic of Vietnam.  He was placed on the Temporary Disability Retired List (TDRL) in February 1970 and permanently retired in January 1972 as a direct result of his wounds.

3.  The applicant provides:

	a.  A copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period 5 October 1967 through 11 February 1970. It shows he was honorably released from active duty and transferred to the U.S. Army Reserve (USAR) Control Group (Retired) by reason of temporary disability; that he served as a USAR First Lieutenant, Infantry; that he had service in Vietnam from 29 September 1968 - 26 October 1968; and that, among other decorations, he was awarded the Silver Star, the Purple Heart, and the Combat Infantryman Badge.



	b.  A copy of a DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 17 December 1969, showing the following disabilities:  "Lower radicular groups, right, paralysis of, incomplete, with limitation of extension of elbow"; and "Malunion of right humerus with 2 inches of shortening."  It also shows the unfitness occurred in the performance of his duties and that the disability resulted from injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurred in the line of duty during a period of war as defined by law.

	c.  A copy of General Orders Number 10912, published by Headquarters, 9th Infantry Division, dated 25 November 1968, awarding him the Silver Star for gallantry in action involving close combat with an armed hostile force in the Republic of Vietnam on 18 October 1968.  The following reason was cited:

"First Lieutenant [Applicant] distinguished himself by exceptionally valorous actions on 18 October 1968 while serving as a Platoon Leader with Company C, 6th Battalion, 31st Infantry on a reconnaissance in force mission north of My Quoi.  Upon insertion by helicopter into an open rice field, [Applicant’s] men were immediately hit by enemy fire from a nearby woodline and a row of houses. Immediately deploying his men, he took the point position and charged across the open rice paddy through a barrage of enemy bullets, knocking out the first of the enemy positions.  On his way to the second emplacement, [Applicant] was seriously wounded but continued to lead his men, routing the Viet Cong from their positions and inflicting heavy casualties on them.  First Lieutenant [Applicant’s] extraordinary heroism in close combat with an armed hostile force is in keeping with the highest traditions of the military service and reflects great credit upon himself, the 9th Infantry Division and the United States Army."

	d.  A copy of General Orders Number 241, published by Headquarters, 3rd Field Hospital, Vietnam, dated 23 October 1968, awarding him the Purple Heart for wounds received in connection with military operations against a hostile force on 18 October 1968.

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.  With enlisted service from 19 September 1966 through 4 October 1967, the applicant was commissioned as a Second Lieutenant, Infantry, on 5 October 1967.  His source of commission was Infantry Officer Candidate School, Fort Benning, GA.

3.  The applicant’s initial duty assignment as an infantry officer was with the 41st Infantry, Fort Ord, CA, where he served from 28 October 1967 through 19 June 1968, when he was reassigned to Fort Benning.  The applicant attended the Ranger Officer Course and was awarded the Ranger Tab by Special Orders Number 229, published by Headquarters, Student Battalion, U.S. Army Infantry School, Fort Benning, dated 18 September 1968.

4.  On 19 September 1968, the applicant was ordered to Vietnam.  He arrived
in-country on 29 September 1968.  On 12 October 1968, he was assigned to 
6th Battalion, 31st Infantry, 9th Infantry Division for duty with Company C.

5.  The applicant was seriously wounded in action on 18 October 1968 and was medically evacuated to the 3rd Field Hospital, Vietnam; then to the 249th General Hospital, Japan; then to General Leonard Wood Army Hospital, Fort Leonard Wood, MO with attachment to Scott Air Force Base, IL.

6.  On 17 December 1969, the applicant received a PEB conducted at Fitzsimons General Hospital, Denver, CO.  He was awarded a combined disability rating of 50 percent with a recommendation that he be placed on the TDRL and reexamined in June 1971.  The DA Form 199 clearly states, in Item 12, his disability resulted from injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurred in the line of duty during a period of war as defined by law.

7.  The applicant was honorably released from active duty and retired by reason of temporary disability on 11 February 1970.  An AGPZ Form 977, dated
5 February 1970, provided data on his entitlement to retired pay.  Item 29 of this form did not indicate that he was retired for disability caused by an instrumentality of war and incurred in line of duty during a period of war.
8.  On 18 October 1971, the applicant was reexamined by a PEB at Fitzsimons General Hospital.  He was found unfit with a combined disability rating of 50 percent and it was recommended he be permanently retired.  This DA Form 199 did not complete Item 10 (formerly Item 12), leaving blank key information as to whether the disability resulted from injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurred in the line of duty during a period of war as defined by law.

9.  Following the 18 October 1971 PEB, a new AGPZ Form 977, dated 16 December 1971, was completed which removed the applicant from the TDRL and retired him by reason of permanent disability rated at 50 percent.  The form did not complete Item 29.

10.  On 16 December 1971, the Office of The Adjutant General, Washington, DC, published Letter Orders Number D12-664 with Subject:  Removal from TDRL.  The order removed the applicant from the TDRL on 31 December 1971 and permanently retired him by reason of physical disability on 1 January 1972 with a disability rating of 50 percent.  There were no special instructions provided with these orders (e.g., whether the applicant’s disability resulted from injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurred in the line of duty during a period of war as defined by law).

11.  Until recently, military retirees with disabilities waived their regular retired pay to receive Department of Veterans Affairs (VA) disability compensation.  This system has been unique to military retirement, since all other Federal service retirees are entitled to receive their full regular retirement compensation and disability compensation.  CRSC is a benefit allowing certain career retirees to receive both retirement pay and payments for combat-related disabilities.  The statute defining this program is Title 10, U.S. Code, section 1413a.  The 2008 National Defense Authorization Act (NDAA) was signed into law on January 29, 2008 to include Chapter 61 retirees, a new component for CRSC.  A Chapter 61 retiree is anyone who was medically retired from military service with a 30 percent or greater VA-rated disability.  This legislation expanded eligibility to medical retirees with less than 20 years of service, effective January 1, 2008.  Medically retired veterans must still provide documentation that shows a causal link between a current VA disability and a combat-related event.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests the AGPZ Form 977 (edition 1 November 1969), dated 16 December 1971, be corrected in Item 29 to show his disability was caused by an instrumentality of war and incurred in line of duty during a period of war.
2.  The applicant’s service records clearly establish that he was seriously wounded in action in Vietnam on 18 October 1968; that he was medically evacuated from Vietnam; that he went through a lengthy course of treatment and period of recovery; and that he was permanently retired with a disability rating of 50 percent as a direct result of his wounds incurred in Vietnam.

3.  Some of the applicant’s service records properly indicate his wounds resulted from injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurred in the line of duty during a period of war as defined by law; his initial PEB of 17 December 1969 correctly reflects this status.  Unfortunately, as he was further processed through the disability system, neither his PEB reexamination on 18 October 1971 nor his 16 December 1971 AGPZ Form 977 picked up this important distinction and carried it forward.

4.  Unfortunately, the AGPZ Form 977 is obsolete and no longer in use.  The new form, DD Form 2656 (Data for Payment of Retired Personnel) does not contain information relative to the applicant’s request.

5.  In order to accommodate the applicant, the ABCMR can effect correction of two documents in the applicant’s service records: his DA Form 199, dated 18 October 1971, removing him from the TDRL and permanently retiring him with a disability rating of 50 percent; and Letter Orders Number D12-664 removing him from the TDRL effective 31 December 1971 and directing his permanent disability retirement on 1 January 1972.  These forms should be corrected as indicated below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  ___X____  ___X____  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.  Correcting his DA Form 199, dated 18 October 1971, to show, in Item 10, that his retirement IS “based on disability resulting from injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurred in the line of duty during a period of war as defined by law"; and

	b.  Amendment of Letter Orders Number D12-664, Department of the Army, Office of The Adjutant General, Washington, DC, dated 16 December 1971, to show in “Special Instructions” that his retirement “is based on disability resulting from injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurred in the line of duty during a period of war as defined by law,” or words to that effect.

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 correcting the obsolete AGPZ Form 977.


															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)                                         AR20080015503



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ABCMR Record of Proceedings (cont)                                         AR20080015503



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