IN THE CASE OF:	  

		BOARD DATE:	  	   21 April 2009

		DOCKET NUMBER:  AR20090001079 


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, correction of his records to show he was promoted to the rank of captain (CPT)/pay grade O-3 and permanently retired in the grade of CPT (O-3) with a disability rating of 60 percent (%), along with all pay and benefits.

2.  The applicant states, in effect, he enlisted in the U.S. Army on 21 November 1967 during the build-up for the war in Vietnam at the same time that there was a lot of conversation on how to avoid the draft.

   a.  The applicant states that he passed the initial test for flight school at the reception station, he was sent to basic combat training at Fort Benning, Georgia and was subsequently persuaded to forego Warrant Officer Flight School and attend Officer Candidate School (OCS).

   b.  The applicant states he was sent to Fort Dix, New Jersey to attend infantry advanced individual training (AIT) and then assigned to Fort Sill, Oklahoma for OCS.  He adds that he graduated and was assigned to Fort Rucker, Alabama for fixed-wing training.  The applicant also states that the demand for fixed-wing was low, so he worked a deal to go to Vietnam in return for the first available fixed-wing training course upon his return from Vietnam.

   c.  The applicant states that he was assigned to the 101st Airborne Division in Vietnam and he was wounded in action.  He was medically evacuated and assigned to Martin Army Hospital, Fort Benning, where his severely comminuted fracture was fixed with 90 degree steel plates.  He states he was eventually able to walk without crutches and assigned to duties at the main desk of Admissions and Dispositions at the hospital.  He adds that he was told by doctors that he had to have at least one more surgery with an estimated year in the hospital.

   d.  The applicant states that the record does not reflect ongoing negotiations with the Army he was engaged in at the time, or that he was told that by staying in the Army it would hinder his unit’s ability to maintain troop strength and otherwise hamper its ability to fight.  He also states he was due an automatic promotion to CPT (O-3) (i.e., for over 3 years of service) on 23 November 1969.  The applicant adds he worked hard to earn a slot on the team, was wounded and unable to perform as an Artillery officer, and voluntarily gave up his slot for the sake of the team when he was asked to do so.

   e.  The applicant concludes that, given the circumstances and situation, he accepted a medical retirement; the first offer was for a 30% disability rating plus all benefits accorded to longevity retirees; and with the help of his senator and a new board, he was granted a 60% disability rating plus all benefits accorded longevity retirees.

3.  The applicant provides copies of a DD Form 4 (Enlistment Record - Armed Forces of the United States), dated 22 November 1966; two DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) with effective dates of 20 November 1967 and 22 September 1969; and AGPZ Form 358-2, (Headquarters, Department of the Army, Washington, D.C., Special Orders Number 171, dated 5 September 1969).

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b) (10 USC 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 personnel records contain a DD Form 4, dated
22 November 1966, that shows he enlisted in the Regular Army and entered active duty for a period of 3 years on 22 November 1966.  Item 13 (Initial Assignment) shows the applicant enlisted for Army Career Group 67 (Aircraft Maintenance).

3.  The applicant’s military personnel records contain a DA Form 20 (Enlisted Qualification Record).  

   a.  Item 27 (Military Education) shows he completed the 23-week Officer Candidate course at the U.S. Army Artillery and Missile Center (Fort Sill, Oklahoma) in 1967.

   b.  Item 38 (Record of Assignments), in pertinent part, shows he was assigned to Company D, 1st Battalion, 1st Brigade, U.S. Army Training Center, Fort Benning, on 1 December 1966 to attend basic combat training; assigned to Company B, 1st Battalion, 1st AIT Brigade, Fort Dix, on 13 February 1967 to attend infantry AIT; and then assigned to Headquarters and Headquarters Battery, Officer Candidate Brigade, U.S. Army Artillery and Missile Center, Fort Sill, on 24 April 1967 as an officer candidate.

4.  The applicant’s military personnel records contain a DD Form 214 that shows he entered active duty this period on 22 November 1966 and he was honorably discharged on 20 November 1967 to accept a commission as an officer in the Army.  At the time he had completed 11 months and 29 days of net active service this period.

5.  The applicant’s military personnel records contain a DA Form 66 (Officer Qualification Record).

   a.  Item 12 (Appointments) shows he was appointed as a second lieutenant, effective and with a date of rank (DOR) of 21 November 1967.  This item also shows he was promoted to first lieutenant (1LT), effective 21 November 1968.

   b.  Item 17 (Foreign Service) shows he served overseas in the U.S. Army Pacific (USARPAC) in the Republic of Vietnam (RVN) from 28 June through
29 October 1968.

   c.  Item 18 (Record of Assignments), in pertinent part, shows he was assigned to Detachment 3101, Administration Company, 101st Air Cavalry Division (USARPAC RVN) with duty as a casual from 1 July through 14 July 1968.  He was then assigned to Headquarters and Headquarters Battery,
2nd Battalion, 319th Artillery, 101st Airborne Division (Airmobile) (USARPAC RVN), with duty as a forward observer from 14 July through 6 September 1968.  This item also shows he was assigned to the Medical Holding Detachment, 106th General Hospital (Japan), as a patient on 7 September 1968.
6.  The applicant’s military personnel records contain a copy of Headquarters, 12th Evacuation Hospital (Surgical Mobile), (Vietnam), General Orders Number 197, dated 30 August 1967, that show, in pertinent part, the applicant was awarded the Purple Heart for wounds received in connection with military operations against a hostile force in the RVN on 29 August 1968.

7.  The applicant’s military personnel records contain a copy of Headquarters, U.S. Army Vietnam, Special Orders Number 252, dated 8 September 1968, that show, in pertinent part, the applicant was reassigned from his unit in the RVN to the Medical Holding Detachment, 106th General Hospital (Japan), as a patient on or about 15 September 1968.

8.  The applicant’s military personnel records contain a copy of Headquarters, 106th General Hospital (Japan), Special Orders Number 255, dated 25 October 1968, that show, in pertinent part, the applicant was assigned to the Medical Holding Company, Martin Army Hospital, Fort Benning, as a patient on
29 October 1968.

9.  The applicant’s military personnel records contain a copy Headquarters, U.S. Army Physical Evaluation Board, U.S. Army Physical Disability Agency (USAPDA), Fort Gordon, Georgia, letter, dated 18 August 1969, subject:  Proceedings of Physical Evaluation Board (PEB) with PEB proceedings.  The transcripts of the formal PEB proceedings, in pertinent part, show the applicant expressed his feeling of entitlement to more than 50% for his left leg, the PEB found the applicant’s combined disability rating was 60%, and recommended the applicant be permanently retired from service.  The transcripts of the formal PEB proceedings are absent any evidence that the applicant was engaged in ongoing negotiations with the Army at that time.  This documentation also shows that the applicant indicated with his signature that he agreed with the PEB's findings and recommendation.

10.  The applicant’s military personnel records contain a copy of Headquarters, Department of the Army, Washington, DC, Special Orders Number 171, dated
5 September 1969, that show, in pertinent part, having been determined to be permanently unfit for duty by reason of physical disability of 60% incurred while 
entitled to receive basic pay, the applicant was retired from active service with 
the grade and retired pay of 1LT (O-2) as provided by Title 10, U.S. Code, sections 1201 and 1372.  The orders also show the applicant was released from assignment and active duty on 22 September 1969; placed on the Army of the United States retired list on 23 September 1969; and transferred to the U.S. Army Reserve (Retired Reserve) in the grade of 1LT (O-2) on 23 September 1969.

11.  The applicant’s military personnel records are absent any evidence that he was promoted to the grade of CPT (O-3); that he was recommended for promotion to the grade of CPT (O-3); or that he would be automatically promoted to CPT (O-3) upon completion of 3 years of service.

12.  The applicant's military personnel records contain a DD Form 214 that shows he entered active duty this period on 21 November 1967 and was honorably retired on 22 September 1969, under the provisions of Title 10, U.S. Code, sections 1202 and 1372, and permanently retired by reason of physical disability.  At the time he had completed 1 year, 10 months, and 1 day of net active service this period; 1 year and 1 day of other service; 4 months and 1 day of foreign service; and 2 years, 10 months, and 1 day of total active service.

13.  The applicant's military personnel records contain a DD Form 149 (Application for Correction of Military or Naval Record Under the Provision of Title 10, U.S. Code, Section 1552), dated 12 December 1985, that shows the applicant requested to be medically retired at a higher percentage of disability due to his chronic osteomyelitis and other residuals of his gunshot wound.  His records also contain documentation that shows the President, Washington PEB, Walter Reed Army Medical Center, Washington, DC, reviewed the application and recommended the request for correction of military records be denied.  This documentation further shows that the applicant’s counsel requested the application that was currently pending be returned to the individual.  Accordingly, on 9 May 1988, the ABCMR returned the application to the applicant without further action.

14.  Title 10, U.S. Code, Chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability.  The USAPDA, under the operational control of the Commander, U.S. Army Human Resources Command, Alexandria, Virginia, is responsible for operating the Physical Disability Evaluation System (PDES) and executes Secretary of the Army decision-making authority as directed by Congress in Title 10, U.S. Code, Chapter 61.

15.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30%.

16.  Title 10, U.S. Code, section 1372, provides that unless entitled to a higher retired grade under some other provision of law, any member of an armed force who is retired for physical disability under section 1201 or 1204 of this title, or whose name is placed on the temporary disability retired list under section 1202 or 1205 of this title, is entitled to the grade equivalent to the highest of the following:  (1)  the grade or rank in which he is serving on the date when his name is placed on the temporary disability retired list or, if his name was not carried on that list, on the date when he is retired; (2)  the highest temporary grade or rank in which he served satisfactorily, as determined by the Secretary of the armed force from which he is retired; (3)  the permanent regular or reserve grade to which he would have been promoted had it not been for the physical disability for which he is retired and which was found to exist as a result of a physical examination; or (4)  the temporary grade to which he would have been promoted had it not been for the physical disability for which he is retired, if eligibility for that promotion was required to be based on cumulative years of service or years of service in grade and the disability was discovered as a result of a physical examination.

17.  Army Regulation 624-100 (Promotion of Officers on Active Duty), in effect at the time, prescribes the policy and procedures for the selection and promotion of commissioned officers and warrant officers on active duty.  Paragraph 14 (Zone of consideration), in pertinent part, provides that considerations for temporary promotion to grades above first lieutenant and chief warrant officer (W-2) are based on date of rank.  Officers entering on active duty whose dates of rank are within an announced zone of consideration will be considered for promotion only if the Selection Board is still in session on date of entry.  It also provides that Headquarters, Department of the Army, will announce the range of dates of rank, basic dates or promotion list numbers, as appropriate, constituting the zones of consideration for each grade.

18.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, his records should be corrected to show he was promoted to the grade of CPT (O-3) and permanently retired in the grade of CPT (O-3) with a disability rating of 60 percent, along with all pay and benefits because he was engaged in ongoing negotiations with the Army at the time and he was due an automatic promotion to CPT (O-3) for over 3 years of service on
23 November 1969.

2.  The evidence of record shows the applicant was wounded in action in the RVN on 29 August 1968 and medically evacuated to the United States.  The evidence of record also shows the applicant was found to be permanently unfit for duty by reason of physical disability of 60% incurred while entitled to receive 
basic pay, the applicant was retired from active service with the grade and retired pay of 1LT (O-2), and transferred to the USAR (Retired Reserve) in the grade of 1LT (O-2) on 23 September 1969

3.  The evidence of record shows that the applicant’s medical condition was fully considered and evaluated under the PDES.  The evidence of record also shows that the applicant appeared before a formal PEB, acknowledged he understood his rights, he was afforded the opportunity to call witnesses, and that he offered testimony in his own behalf.  The evidence of record further shows the formal PEB found the applicant’s combined disability rating was 60% and recommended the applicant be permanently retired from service.  In addition, the applicant indicated he agreed with the PEB recommendations. 

4.  The applicant provides insufficient evidence to show that his retirement based on permanent disability was in error or incorrect.  There is also no evidence to show the Army misapplied either the medical factors involved or the governing regulatory guidance concerning the applicant's disability processing.  Therefore, the applicant is not entitled to correction of his records to show an adjustment to his disability rating.

5.  The evidence of record shows that, at the time of the applicant's disability retirement, consideration for temporary promotion to CPT (O-3) was based on date of rank and that Headquarters, Department of the Army, was responsible for announcing the range of dates of rank constituting the zone of consideration by a selection board for promotion to CPT (O-3).  Moreover, there was no Army regulatory guidance that provided for the automatic promotion to CPT (O-3).

6.  There is no evidence of record, and the applicant provides insufficient evidence, to show he was engaged in ongoing negotiations with the Army at the time of his disability processing.  There is also no evidence that the applicant was promoted to the grade of CPT (O-3); that he was recommended for promotion to the grade of CPT (O-3); or that he would be automatically promoted (emphasis added) to CPT (O-3) upon completion of 3 years of service (i.e., on 23 November 1969).  In addition, the evidence of record fails to show that the applicant's disability was discovered as a result of a physical examination (emphasis added).  In this regard, it is noted the applicant was permanently retired from active duty on 22 September 1969 in the grade of 1LT (O-2) and he was placed on the retired list on 23 September 1969 in the grade of 1LT (O-2).   Therefore, in view of all of the foregoing, the applicant is not entitled to correction of his records to show he was retired in the grade of CPT (O-3).

7.  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 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)                                         AR20090001079



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ABCMR Record of Proceedings (cont)                                         AR20090001079



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