IN THE CASE OF:	 

		BOARD DATE:	       3 February 2009

		DOCKET NUMBER:  AR20080017382 


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 medical retirement.

2.  The applicant states, in effect, that if his honorable discharge is changed to a medical retirement he will meet the requirement for Combat-Related Special Compensation (CRSC).  He indicates that he had to be discharged from active duty in 1971 due to wounds he received during his two tours in Vietnam and that upon his discharge he was granted 30 percent disability for significant hearing loss due to explosions of grenades by North Vietnamese troops.  He also states that in 1972 he enlisted in the Army National Guard but was discharged in 1981 due to the nature of his disabilities (hearing loss and severe post-traumatic stress disorder (PTSD)).

3.  The applicant states that in January 1991, after being thoroughly examined by the Department of Veterans Affairs (DVA) doctors, it was discovered that he was suffering from PTSD and had been since 1970.  In 1991, he was also diagnosed with prostate cancer which was found to be the direct result of Agent Orange exposure during his Vietnam tours.  He also indicates that he is suffering from Type II diabetes which is an effect of Agent Orange exposure.

4.  The applicant further states that he honorably served his country and that he would have served 20 years or more if not for his injuries.  He states that as a direct result of combat he became disabled and was only able to serve a total of 16 years in the Army.  He claims that according to the Defense Finance and Accounting Service, if you served 31 consecutive days of active duty and were injured in training by parachuting, diving, hazardous duty, special forces, combat training, and/or actual combat, you are eligible to be granted a medical retirement.

5.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge); a letter, dated 12 November 1998, from the DVA; a letter, dated 19 May 2008, from the CRSC Division, U.S. Army Physical Disability Agency, Alexandria, Virginia; two pages of a DD Form 2860 (Section III - Final CRSC Criteria); a VA Form 21-4138 (Department of Veterans Affairs Statement in Support of Claim); orders for the Purple Heart; one page of his DA Form 20 (Enlisted Qualification Record); DVA documentation; and an excerpt on CRSC in support of his 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 was inducted into the Army of the United States on 2 November 1964.  On 28 November 1965, he was honorably discharged         for initial enlistment.  He enlisted in the Regular Army on 29 November 1965      for a period of 6 years.  He served in Vietnam from 26 September 1966 to         25 September 1967 and from 18 August 1969 to 13 August 1970.

3.  On 1 November 1971, the applicant underwent a physical separation examination and was found qualified for separation with a physical profile of "111311."

4.  On 13 December 1971, the applicant was honorably discharged for expiration term of service.  He had completed a total of 7 years, 1 month, and 11 days of creditable active service.

5.  There is no evidence of record which shows the applicant was diagnosed with any mental or medical condition prior to his discharge on 13 December 1971.

6.  Chapter 7 (Physical Profiling) of Army Regulation 40-501 (Standards of Medical Fitness) provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing and if reclassification action is warranted.  Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES):  
P-physical capacity or stamina, U-upper extremities, L-lower extremities, 
H-hearing and ears, E-eyes, and S-psychiatric.  Numerical designator "1" under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.  Numerical designators "2" and "3" indicate that an individual has a medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military duty.  The individual should receive assignments commensurate with his or her functional capacity.

7.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank, or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.

8.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade, or rating because of disability incurred while entitled to basic pay.

9.  The National Defense Authorization Act (NDAA) for Fiscal Year 2003 granted a special payment to certain disabled retirees - CRSC.  The initial eligibility criteria was for a retired member who met each of four conditions to have been considered to meet the preliminary CRSC criteria, to include having 20 or more years of service in the Uniformed Services for the purposes of computing the amount of retired pay.  A retired Reserve member with retired pay computed under the provisions of chapter 1223 of Title 10, U.S. Code, must have had 20 or more years of service as defined by Title 10, U.S. Code, section 12733.

10.  The NDAA for Fiscal Year 2008 was signed into law on 28 January 2008.  It expanded the eligibility of CRSC to include anyone receiving military retired pay.



DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's contention that he had to be discharged from active duty in 1971 due to wounds received in Vietnam.  Evidence of record shows the applicant was honorably discharged for expiration term of service and he was found qualified for separation on 1 November 1971 with a physical profile of "111311."  The governing regulation states that numerical designator "3" indicates that an individual has a medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military duty.

2.  There is no evidence to show that the applicant could not perform his duties while on active duty.  In addition, the applicant stated he subsequently served in the Arm National Guard from 1972 to 1981, indicating that he indeed was not medically unfit at the time he was released from active duty in 1971.

3.  Therefore, there is insufficient evidence to show a medical retirement was warranted.

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 for correction of the records of the individual concerned.



      __________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)                                         AR20080017382



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ABCMR Record of Proceedings (cont)                                         AR20080017382



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