IN THE CASE OF:	  

		BOARD DATE:	        12 MAY 2009

		DOCKET NUMBER:  AR20090000416 


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, that his release from active duty (REFRAD) on 22 November 1968 be changed to show that he was discharged by reason of physical disability due to post-traumatic stress disorder (PTSD). 

2.  The applicant states, in effect, that he should have been medically discharged by reason of physical disability because he was not diagnosed in a timely manner for service-connected PTSD.

3.  The applicant provides a copy of a Department of Veterans Affairs (VA) Rating data sheet showing that he was received a combined disability rating of 80% for PTSD, diabetes mellitus and hypertensive vascular disease; a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), a copy of his separation physical; and copies of documents from his medical records and his VA records.

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 with a moral waiver on 25 November 1966 and underwent his basic and advanced individual training (AIT) at Fort Jackson, South Carolina before being transferred to Vietnam for duty as a light weapons infantryman on 5 May 1967.  He was advanced to the pay grade of E-4 on 14 January 1968.

3.  The applicant was awarded the Combat Infantryman Badge, the Bronze Star Medal with "V" Device and one oak leaf cluster and the Purple Heart for shock from a mortar round.  He departed Vietnam on 4 May 1968 and was transferred to Fort Benning, Georgia, where he remained until he was honorably REFRAD on 22 November 1968 due to the expiration of his term of service.  He had served 1 year, 11 months, and 28 days of total active service.

4.  The applicant's medical records are not present in the available records.  However, the abbreviated clinical records provided by the applicant show that he was hospitalized for 2 days for combat exhaustion in February 1968 and was returned to duty.  There is no evidence in the available records to show that the applicant was deemed unfit for separation at the time of his REFRAD or that he was ever issued a physical profile.  However, his records do show that he had "excellent" conduct and efficiency ratings throughout his entire period of active service.

5.  The documents provided by the applicant show that in February 1972 the VA denied the applicant's claim for a nervous condition.  In 1988, he requested that his case be reopened and in 2000, it appears that the VA deemed him unemployable due to chronic, severe PTSD and persistent symptoms of severe PTSD.

6.  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 or her office, rank, grade or rating because of disability incurred while entitled to basic pay.

7.  Title 38, U.S. Code, sections 310 and 331, permits the 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.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

8.  There is a difference between the VA and the Army disability systems.  The Army’s determination of a Soldier’s physical fitness or unfitness is a factual finding based upon the individual’s ability to perform the duties of his or her grade, rank or rating.  If the Soldier is found to be physically unfit, a disability rating is awarded by the Army and is permanent in nature.  The VA may find a Soldier unfit by reason of service-connected disability and may even initially assign a higher rating.  The VA’s ratings are based upon an individual’s ability to gain employment as a civilian and may fluctuate within a period of time depending on the changes in the disability.

DISCUSSION AND CONCLUSIONS:

1.  While it is clear that the applicant did serve in combat in Vietnam and was hospitalized for 2 days for combat exhaustion, there is no evidence in his military records, and the applicant failed to provide any evidence, which shows that he had any medical condition which limited his duty performance to the extent that a physical profile had to be issued or that any medical condition he had warranted evaluation for physical disability.

2.  As previously mentioned, an award of a VA rating does not establish error or injustice in whether or not an Army rating is given, or in an Army rating that is given.  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.  Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at different positions.

3.  Inasmuch as there is no evidence to show that the applicant was physically unfit for separation at the time, there appears to be no basis to change his discharge to a medical separation or retirement.


4.  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 to know that the sacrifices he made in service to the United States during the Korean War are deeply appreciated.  The applicant and all Americans should be justifiably proud of his service in arms.



      _______ _ 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)                                         AR20090000416





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090000416



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1