IN THE CASE OF:	

		BOARD DATE:	  14 April 2009

		DOCKET NUMBER:  AR20090000757 


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 that the Army "acknowledge" that he had Post-Traumatic Stress Disorder (PTSD) and Hepatitis C at the time of his discharge.  He also requests retroactive promotion.

2.  The applicant states that it is current practice to screen Soldiers returning from combat for PTSD.  He was never evaluated for PTSD even though he served four combat tours.  He adds that while the Department of Veterans Affairs (VA) rated him for PTSD in 1985, it was not a high rating.

3.  The applicant states, in effect, that he constantly had small nicks and cuts on his hands from working on the helicopter and guns.  He also frequently handled wounded and dead Soldiers, and washed blood off of the helicopter floor bare handed.  He was never screened for Hepatitis C when he was on active duty.  Hepatitis C is dormant for prolonged periods of time; therefore, it did not show up until he had been discharged for 30 years.  The VA will not rate him for this condition because it was not detected in the presumptive period after his discharge.

4.  The applicant also states that he was promised a promotion while he was in the hospital.  He had served for 6 years, and he had no court-martial convictions or reductions in rank.  He had also fought for 3 years, and lost the use of his left arm.



5.  The applicant provides excerpts from his military and VA records, laboratory test result sheets, an information paper on Hepatitis C, and a statement he apparently submitted to the VA.

6.  In a supplemental letter, the applicant submitted a copy of his VA appeal for an increase in his rating for PTSD and for the denial of his request to be rated for Hepatitis C.

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 records show that he enlisted in the Regular Army on 18 September 1967, was awarded the military occupational specialty of crew chief, was promoted to pay grade E-4, and served two tours in Vietnam.  The applicant was honorably released from active duty on 12 September 1970.

3.  The applicant reenlisted on 11 December 1970 and served two additional tours in Vietnam.

4.  During his second enlistment the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, on three occasions for failing to present himself for guard duty, conduct prejudicial to good order and discipline, disobeying a lawful command, possession of 82.77 grams of marijuana, and transferring by mail 82.77 grams of marijuana.

5.  On 26 October 1972, the applicant sustained multiple fragment wounds to his left arm, back and hip.




6.  A Medical Evaluation Board (MEBD) was convened on 8 August 1973.  The MEBD found that the applicant had:

   a.  wound, lacerated, index finger, left, with laceration of flexor pollicis longus and flexor profundus tendons;  no artery or nerve involvement; as a result of hostile action, on 26 October 1972, when the applicant was struck by hostile rocket fire in Vietnam; treated by surgery with fair to poor restoration of function (major extremity).

	b.  neuropathy, ulnar nerve, left, complete, low, manifested by claw hand deformity with absent intrinsics and absent protective sensation in ring and little fingers.

	c.  neuropathy, median nerve, left, incomplete, severe, high, manifested by absent protective sensation in distribution of nerve in left hand and fingers and hypersensitivity of palm of hand with absent thenar musculature and weak finger flexors.

	d.  impairment of hearing, left ear, mild, due to rupture of left tympanic membrane due to acoustic trauma.

	e.  scars, multiple, left upper extremity with hypersensitive scar on medial aspect of left arm.

7.  The MEBD determined the applicant was medically unfit and recommended referal to a Physical Evaluation Board (PEB).  The applicant indicated that he agreed with the MEBD's findings and recommendation and did not wish to remain on active duty.

8.  In the processing of the MEBD a Narrative Summary (NARSUM) was transcribed.  In the NARSUM it was stated that routine laboratory studies were within normal limits.  No mention was made about the applicant having any psychological problems.

9.  On 17 August 1973, a PEB convened which determined the applicant was physically unfit due to neuropathy, ulnar nerve, left, major, complete, low with neuropathy median nerve, left, major, incomplete, severe and limitation of extension of left elbow to 90 degrees and poor restoration of left index finger tendons, rated as all radicular groups, paralysis of, left, major, incomplete, 




severe.  The PEB recommended that the applicant be permanently retired, rated 70 percent disabled.  The applicant concurred and waived a formal hearing.

10.  Accordingly, on 25 September 1973, the applicant was honorably released from active duty due to physical unfitness and placed on the Retired List the following day in the rank of specialist four.

11.  PTSD, an anxiety disorder, was not recognized as a psychiatric disorder until 1980 with the publishing of the Diagnostic and Statistical Manual of Mental Disorders (DSM) III.  The condition is described in the current DSM-IV, pages 424 through 427.  While PTSD has only been categorized by psychiatrists as a distinct diagnosis since 1980, it has, as early as the Civil War, been described in psychological literature, variously labeled as shell shock, Soldier’s heart, effect syndrome, combat fatigue and traumatic neurosis.  During the period of time in question, similar psychiatric symptomatology was categorized as hysterical neurosis. 

12.  Title 38, U.S. Code, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher VA rating does not establish error or injustice in the Army rating.  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 employability.  Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at a different disability rating based on the same impairment.  Furthermore, unlike the Army the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings.  Confusion arises from the fact that different rating systems are used by the Army and the VA.  While both use the Veterans Affairs Schedule for Rating Disabilities (VASARD), not all of the general policy provisions set forth in the VASARD apply to the Army.  The Army rates only conditions determined to be physically unfitting, thus compensating the individual for loss of a career; while the VA may rate any service connected impairment, in order to compensate the individual for loss of civilian employability. 





DISCUSSION AND CONCLUSIONS:

1.  The diagnosis PTSD did not exist in 1973.  However, there is no evidence that the applicant was suffering from any psychiatric problems while he was on active duty.  Therefore, the diagnosis of hysterical neurosis (based on the date of the MEBD) is properly not reflected in the applicant's medical records.  If the applicant now suffers from PTSD, it would be the responsibility of the VA, not the Army, to compensate him for that condition.

2.  As for Hepatitis C, there is no evidence to show the applicant had that condition while he was on active duty.  To the contrary, he was not diagnosed with it until 30 years after his discharge.  While the applicant argues that he contracted that condition while in Vietnam, he has no evidence to support that contention.  It would be inappropriate to correct the applicant's records to show a diagnosis which was not made, nor supported by evidence of record, at the time of his discharge.

3.  The applicant agreed with the findings of his MEBD.  If he believed he had other medical conditions which were medically disqualifying, he should have raised the issue during his MEBD.  The applicant also concurred with the findings and recommendations of his PEB.

4.  The applicant is correct that he was never convicted by a court-martial or reduced in rank.  However, he accepted NJP on three occasions.  Given these circumstances, it is reasonable to believe that the applicant's lack of promotion was not an error or injustice.

5.  While it is unfortunate that the applicant is not being rated for Hepatitis C and is not receiving the disability rating he believes he should be receiving for PTSD, those are issues he must resolve with the VA, not the Army.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20090000757



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090000757



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1