IN THE CASE OF:	  

		BOARD DATE:	  30 October 2008

		DOCKET NUMBER:  AR20080015681 


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, reconsideration of his earlier petition to change the reason for his separation from expiration of term of service (ETS) to medical discharge or retirement; and that he be promoted to a commissioned officer grade.  

2.  In a letter to the Secretary of the Army, the applicant states, in effect, that he was not provided wise counseling regarding the options available to him upon his return from a Prisoner of War (POW) status in 1973.  He further states the Army gave him no consideration to appear before a Physical Evaluation Board (PEB) for disability retirement at the time.  He claims that one day subsequent to his separation from the Army on 13 June 1973, the Department of Veterans Affairs (VA) rated him at 100 percent (%) disabled, that this disability rating was later downgraded to 40% by the VA in June 1974, and that the VA raised his disability rating back to 100% in April 1995 following a series of appeals.  

3.  The applicant also claims the Army erred in not offering him a promotion from sergeant (SGT) to a commissioned officer grade, and that two fellow POWs provided letters supporting his appointment as a commissioned officer.  He concludes by requesting that the Secretary of the Army or Secretary of Defense intercede on his behalf to correct these gross errors and injustices.  

4.  The applicant provides a self-authored letter to the Secretary of the Army in support of his reconsideration request.  

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.  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 AC91-06580, on 
17 June 1992.  

3.  During its original 1992 review of the case, the Board carefully reviewed all the evidence of record and independent evidence submitted by the applicant and after it considered all aspects of the case, it concluded there was no error or injustice related to the applicant’s separation processing that supported waiving his failure to timely file his application within the 3-year statute of limitations.  

4.  On 27 November 1992, in response to a reconsideration request from the applicant, the Executive Secretary (Director) of the ABCMR informed the applicant in a letter that there was no basis for reconsideration of his case by the Board.

5.  On 25 January 1993, the Executive Secretary (Director) of the ABCMR informed a Member of Congress, who had inquired on behalf of the applicant, that it was only after it had determined that no error or injustice existed and that his application should be denied, that the Board considered the statute of limitations in the applicant’s case.  The letter further indicated that the applicant’s failure to timely file would have been excused if the Board had concluded his case had merit.  It finally indicated that no application has ever been rejected by the Board simply because an applicant did not timely file.  

6.  The applicant provides no new documentary evidence that has not already been considered by the Board during its original review of the case.  He also provides the argument that he was not wisely counseled regarding his medical retirement options during his separation processing, and that he should have been promoted/appointed to a commissioned officer grade.  
7.  The applicant’s record shows he enlisted in the Regular Army and entered active duty on 11 September 1969, and that he was trained in and awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  

8.  The applicant’s Enlisted Qualification Record (DA Form 20) shows he was promoted to SGT on 1 October 1971, and that this is the highest rank he attained while serving on active duty.  It also shows that he arrived for duty in the Republic of Vietnam (RVN) on 19 August 1970, and that he was captured by enemy forces and was a POW from 7 April 1972 to 12 February 1972.  

9.  The applicant’s Official Military Personnel File (OMPF) is void of any documentation that shows he ever applied for an appointment as an Army commissioned officer, or that he was ever appointed a commissioned officer by proper authority while serving on active duty.  

10.  The applicant’s Official Military Personnel File (OMPF) contains a Medical Condition-Physical Profile Record (DA Form 3349), dated 7 June 1973, which shows the applicant had a Physical Profile of 111111, and that he had no assignment limitations and was medically qualified for duty.  This determination was based on a medical examination and review of the applicant’s health record. 

11.  The applicant’s OMPF also contains a Report of Medical Examination 
(SF 88) that shows he underwent a medical examination on 7 June 1973, during his separation processing.  The report noted the following service connected medical conditions:  Injury right ulnar nerve due to fragment wound; multiple fragment wounds with retained metal fragments both lower extremities (no bone, nerve, or vascular involvement); scars from multiple fragment wounds, bridge of nose, mandible as well as extremities; dermatofibroma, left thigh; and neuroprazia, right ulnar nerve with numbness and paresthesia.  The applicant received a Physical Profile of 111111.  No disqualifying physical or mental conditions were noted on the examination and the examining physician determined the applicant was qualified for retention/separation and cleared the applicant for separation.  

12.  On 12 June 1973, the applicant was honorably released from active duty (REFRAD).  The separation document (DD Form 214) issued at the time shows he was separated under the provisions of Army Regulation 635-200, by reason of ETS.  It also shows that he held the rank SGT and that he had completed a total of 3 years, 9 months, and 2 days of creditable active military service.  The applicant authenticated this document with his signature in Item 32 (Signature of Person Being Transferred or Discharged) on the date of his REFRAD.  


13.  The applicant’s file also contains two letters from fellow POWs, one an Army colonel and one an Air Force colonel, dated in 1991.  In their 1991 letters, both officers attested to the applicant’s outstanding performance of duty and character, and both indicated they supported the applicant’s commissioning as an Army officer.  

14.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (PDES) 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 or her office, grade, rank, or rating.  

15.  Paragraph 3-1 of the disability regulation contains guidance on the standards of unfitness because of physical disability.  It states, in pertinent part, 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 Soldier reasonably may be expected to perform because of their office, grade, rank, or rating.  Paragraph 3-5 contains guidance on rating disabilities.  It states, in pertinent part, that there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying.  Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.  

16.  Title 38, United States Code, sections 1110 and 1131, permits the Department of Veterans Affairs (VA) to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  The VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  However, these changes do not call into question the application of the fitness standards.  

17.  Army Regulation 600-200 (Enlisted Personnel Management System), in effect at the time, prescribed the policies, responsibilities, and procedures pertaining to career management of enlisted personnel.  Chapter 7 provided the Army’s enlisted promotion policy.  Promotion selection was based on recommendations of local selection boards and monthly quotas established by Department of the Army.  
18.  Paragraph 7-12 of the same regulation contained policies regarding promotion of personnel missing, captured, detained, or hospitalized for extended periods.  There were no special promotion provisions for returning POWs.  It provided policies ensuring individuals entering such a status would not be deprived of normal promotion consideration if otherwise eligible.  The regulation provided no special automatic promotion policies for returning POWs, and it contained no provisions that allowed for automatic entrance into a commissioning program or for special appointments as commissioned officers based on POW status.

19.  The Army had no special provisions or policies supporting the automatic commissioning/appointment of former POWs at the time of the applicant’s separation, and none exist under current regulatory policy.  Army appointment regulations provide for appointments based on either completion of a commissioning training program, or upon direct appointment applications of qualified applicants.  Appointments are made based on established regulatory sources and must be approved by the appropriate appointment authorities identified in the applicable regulations.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he was not properly advised on his options related to disability processing at the time of his discharge was carefully considered.  However, there is insufficient evidence to support this claim.  

2.  The applicant’s record shows that although he had been treated for and suffered from multiple service connected medical conditions, none of these were determined to be disqualifying for retention/separation at the time he was REFRAD.  DA Form 3349 and an SF 88 on file, which documents his last physical examination completed during his separation processing, confirms he had a 111111 Physical Profile, was fully qualified for duty, and that he suffered from no disqualifying physical or mental condition that prevented his further service or that would have supported his separation processing through medical channels.  The examination record also confirms the applicant was determined to be medically qualified for retention/separation and was cleared for separation by the competent medical authority (examining physician).   Although the applicant was provided a 100% disability rating right after his discharge, this factor alone does not call into question the Army’s application of the fitness standards at the time of his REFRAD.  


3.  While both the Army and the VA use the VA Schedule for Rating Disabilities (VASRD), not all of the general policy provisions set forth in the VASRD apply to the Army. The VA may rate any service connected impairment, thus compensating for loss of civilian employment.  It may also award compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. It can also evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  

4.  The Army rates only conditions that are determined to be physically unfitting for further military service, thereby compensating the individual for the loss of his or her military career.  The applicant is now properly being rated, treated, and compensated for all of his service connected medical conditions by the VA.  The evidence of record shows the applicant was separated by reason of ETS, and absent any evidence that he was denied further service based on any disabling medical condition that would have supported his separation processing through medical channels, there is an insufficient evidentiary basis to grant his request that he be granted a medical retirement.  It is noted that the applicant is properly being treated, rated and compensated for his service connected medical conditions by the VA, which is the appropriate agency to provide those services subsequent to discharge. 

5.  The applicant’s contention that he should have been appointed a commissioned officer was also carefully considered.  However, notwithstanding the recommendations of the two officers provided by the applicant, there was no regulatory policy that provided special provisions that allowed for the automatic appointment of former POWs as commissioned officers at the time of the applicant’s REFRAD, and there are none provided under current Army regulatory policy.  The evidence of record is void of any indication that the applicant ever applied for appointment as a commissioned officer, or that he was ever appointed a commissioned officer by proper authority while he remained on active duty.  As a result, notwithstanding his outstanding performance of duty and his potential to serve, absent any evidence that he ever attempted to obtain a commission prior to his separation and/or that he was unjustly denied the opportunity to do so, there is also an insufficient evidentiary basis to grant this portion of the requested relief.  

6.  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:

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 AC91-06580, dated 17 June 1992, or to grant his request for a promotion to or appointment as a commissioned officer. 




      _______ _ 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)                                         AR20080015681



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ABCMR Record of Proceedings (cont)                                         AR20080015681


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