IN THE CASE OF:	  

		BOARD DATE:	  4 June 2009

		DOCKET NUMBER:  AR20090002069 


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 disability rating be increased to 
90 percent. 

2.  The applicant states, in effect, that he received a 20 percent disability rating for asthma (non-combat) and a 40 percent disability rating for a combat related injury to his left femur for a combined rating of 50 percent.  He indicates that when he applied for Combat Related Special Compensation (CRSC) he received a letter from the Department of Army stating that he was rated at 90 percent for combat related injuries and he was rated at 80 percent for Purple Heart related injuries.  He would like his disability rating to be increased to 90 percent for all of his injuries received in combat.  He points out that he received combat injuries in Vietnam to his left shoulder, left index finger, and fragment wounds to his right hip and that when the Army calculated his disability he did not receive any disability rating for any of those wounds.  He claims that he is also suffering from Post Traumatic Stress Disorder (PTSD) and arthritis in his lower back.  He indicates the Department of Veterans Affairs (DVA) rated him at 40 percent for asthma and then increased the rating to 60 percent.  He contends that it is believed over a period of time the affects of Agent Orange may have aggravated his asthma symptoms.    

3.  The applicant provides a copy of his DD Form 214 (Report of Transfer or Discharge, medical records, DVA documentation, and a Department of the Army CRSC rating 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 enlisted in the Regular Army on 31 May 1967 for a period of 
3 years.  He served as a light weapons infantryman in Vietnam from 29 October 1967 until he was wounded in action on 5 February 1968.   

3.  On 28 March 1969, a Medical Evaluation Board (MEB) diagnosed the applicant with asthma, bronchial with repeated attacks while on usual medications for asthma and requiring frequent injections of epinephrine for control; allergies to trees, grasses, weeds, dust, feathers, dogs and cats; wound, gunshot, perforating left side, no artery or nerve involvement.  Treated, healed; fracture, left femur, no artery or nerve involvement, secondary to above diagnosis.  Treated, healed; gunshot would perforating left index finger with destruction of DIP joint; and fragment wounds, multiple, right thigh and left axilla.  Treated, healed.  The MEB narrative summary, states, in pertinent part, that the applicant's wounds received in Vietnam are all well healed and the only residual defect is loss of range of motion of the distal interphalangeal joint of the left index finger which causes him little or no disability.  The MEB recommended referral to a Physical Evaluation Board (PEB).  On 14 April 1969, the applicant agreed with the findings and recommendations.  

4.  On 18 April 1969, an informal PEB found the applicant physically unfit due to asthma bronchial with repeated attacks while on usual medications for asthma and requiring frequent injections of epinephrine for control.  The PEB recommended a combined rating of 20 percent and that the applicant be separated from the service with severance pay.  On 22 April 1969, the applicant concurred with the findings of the PEB and waived a formal hearing.  

5.  On 30 April 1969, the U.S. Army Physical Review Council modified the PEB findings by adding a ratable diagnosis of muscle injury Group XIV left thigh through and through wound with fracture (40 percent).  The Army Physical Review Council recommended that the applicant be permanently retired with a disability rating of 50 percent instead of being separated from the service with severance pay.  On 13 May 1969, the applicant concurred with the findings of the U.S. Army Physical Review Council. 

6.  On 4 June 1969, the applicant was retired by reason of permanent disability with a disability rating of 50 percent.      

7.  In support of his claim, the applicant provided a letter, dated 23 September 2008, from the U.S. Army Human Resources Command pertaining to CRSC.  This letter shows that his total Purple Heart related disability is rated at 80 percent and his total combat related disability is rated at 90 percent.  He provided a letter from the DVA which shows he was granted service connected disabilities for bronchial asthma; traumatic arthritis of the lumbar spine; residuals, gunshot wound, perforating left thigh (bilateral); PTSD; residuals, shell fragment wound, left shoulder; residuals, left fragment wound, left hand, and scar, residuals, gunshot wound, right posterior thigh (bilateral)  with a combined rating of 100 percent. 

8.  Army Regulation 635-40 governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states that the mere presence of an 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 his or her office, grade, or rank.  It states that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  

9.  Title 38, U. S. Code, sections 310 and 331, permits the DVA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The DVA, however, is not required by law to determine medical unfitness for further military service.  The DVA, 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 DVA benefits based on an evaluation by that agency.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were considered.  However, he concurred with the modified findings and recommendation of the PEB on 13 May 1969.

2.  The evidence of record supports the applicant's contention that he did not receive any disability rating for his Vietnam combat injuries to his left shoulder, left index finger, and fragment wounds to his right hip.  The MEB narrative summary states that these wounds were well healed and the only residual defect was the loss of range of motion of the distal interphalangeal joint of the left index finger which caused him little or no disability.

3.  Although the applicant contends that he is suffering from PTSD, there is no evidence to show he was having psychiatric problems in 1969 that interfered with his ability to perform his military duties.  

4.  The applicant’s contention that he is suffering with arthritis in his lower back  was considered.  However, the PEB can only rate the applicant’s condition as reflected at the time.  

5.  The rating action by the DVA does not necessarily demonstrate an error or injustice on the part of the Army.  The DVA, operating under its own policies and regulations, assigns disability ratings as it sees fit.  Consequently, due to the two concepts involved, an individual’s medical condition may not be considered to be a physical disability by the Army and yet be rated by the DVA as a disability. 

6.  There is insufficient evidence to show the applicant’s disabilities were improperly rated by the PEB.  Therefore, 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:

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.




      _______ _   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)                                         AR20090002069



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ABCMR Record of Proceedings (cont)                                         AR20090002069



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