IN THE CASE OF:	  

		BOARD DATE:	  10 November 2009

		DOCKET NUMBER:  AR20090009770 


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 discharge be changed to medically retired to make him eligible for Combat Related Special Compensation (CRSC). 

2.  The applicant states, in effect, that while serving in the Republic of Vietnam, he was seriously wounded on 16 February 1971.  The applicant continues that he was treated in the field, placed in a chopper and sent to a field hospital then subsequently sent to the US Naval Hospital in St. Albans, New York.  

3.  The applicant contends that he was considered by a Physical Evaluation Board (PEB) on 18 May 1971 and placed on the Temporary Disability Retired List (TDRL) effective 3 July 1971 with a 60 percent disability rating.  The applicant further contends that he was told a future physical would be scheduled around September 1972 and that he never received notification of a scheduled examination.  The applicant argues that he discovered that his eligibility for continued TDRL payments was terminated effective 31 October 1972.

4.  The applicant argues that he never received notice of his pending physical or termination of TDRL payments and that his records contain several addresses and his mother's address.  The applicant further states that he also had mailing problems with the Department of Veterans Affairs (VA).

5.  The applicant concludes that he never intentionally missed any appointments or requests to complete questionnaires.  The applicant contends that he was just 21 years old when the injury occurred and that after 6 months in the hospital he moved around a lot staying with friends in various locations.  He also contends that the only reason that he was not placed on the Medically Retired List was an administrative error in sending out notices to the wrong addresses.  The applicant acknowledges that he should have made a better effort in keeping the Army and the VA informed of his address but believes that he is entitled to a medical retirement.

6.  The applicant provides a copy of the PEB Board Proceedings and 20 pages of documents concerning his TDRL process including numerous rating decisions in support of this 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.  Paragraph 2-5, Section II, Army Regulation 15-185, the regulation under which this Board operates, states that the Board will not consider any application if it determines that all administrative remedies have been exhausted.  There is no evidence that the applicant applied to the Commander, U.S. Army Physical Disability Agency (CRSC), c/o The Adjutant General Directorate, 2461 Eisenhower Avenue, Alexandria, Virginia  22331-0470 for Combat Related Special Compensation.  The applicant must show that he applied for CRSC and denied at least three times by the PDA before the ABCMR may consider the application.  Until such a determination is made, the ABCMR cannot take action on his request for CRSC benefits and this matter will not be discussed further in this case.

3.  Records show that the applicant enlisted in the Army on 16 September 1969 for a period of three years.  He completed basic training and advanced individual training and was awarded military occupational specialty 11B (Light Weapons Infantryman).  

4.  Records show that he was assigned to Company C, 3rd Battalion, 8th Infantry, 4th Infantry Division.  Records further show that the applicant served in the Republic of Vietnam during the period 17 June 1970 through 23 March 1971.

5.  Item 41 (Awards and Decorations) of the applicant's DA Form 20 (Enlisted Qualification record) shows that the applicant was awarded the Purple Heart, Combat Infantryman Badge, Army Commendation Medal, Vietnam Service Medal and the Vietnam Campaign Medal.

6.  Evidence of record shows that the applicant sustained a gunshot wound to his right arm as a result of a sniper on 16 February 1971.

7.  On 6 April 1971, a Medical Evaluation Board (MEB) determined that the applicant was unfit for duty for an injury that was incurred in the line of duty not due to own misconduct and referred him to a PEB.  The MEB further indicated that the probable future duration of the applicant's disability may be permanent.  The MEB indicated that care as an in-patient was no longer required and that the patient could be followed as an outpatient at an appropriate facility such as a VA Hospital.  The applicant indicated that he was informed of the findings of the MEB and elected not to submit a statement in rebuttal.

8.  On 18 May 1971, a PEB considered the applicant's medical records and determined that he was unfit for duty and should be placed on the TDRL with a 60 percent disability rating with a reexamination during September 1972.  The applicant concurred with the findings of the PEB and elected to waive a formal hearing in his case.

9.  A VA Rating Decision document, dated 1 June 1971, shows that the applicant had loss of use of his right hand as a result of an injury incurred in hostile action in the Republic of Vietnam.

10.  Department of the Army Letter Orders Number D 6-887, dated 23 June 1971, show that the applicant was determined to be unfit for duty by reason of physical disability and placed on TDRL effective 2 July 1971.

11.  A Data for Retired Pay worksheet, dated September 1972, shows the applicant's mailing address after retirement as "VA Hospital, E. Orange, NJ  07019."

12.  A VA Rating Decision document, dated 30 July 1971, shows that upon examination, there was a loss of muscle substance of the right biceps and that this muscle was almost completely absent.  It is further noted that in addition to weakness of flexion of the forearm and weakness of supination of the right forearm, there was a mild atrophy of all muscles of the hand, particularly those of the palmer distribution.  The medical board anticipated that the applicant’s nerve palsy would improve in the future but the degree of improvement could not be predicted.

13.  On 4 October 1972, the Adjutant General directed that having failed to appear for required periodic medical examinations as directed in competent orders and having failed to show just cause for such failure to report, the eligibility for the applicant to receive disability retirement pay was terminated effective 31 October 1972.

14.  A VA Rating Decision document, dated 29 December 1972, shows that the applicant underwent a medical examination 18 October 1972 which determined the following:  "It is held the flexion contractures of the fingers are of such a degree that better grip and manipulation would be provided by a prosthesis and loss of the right hand is conceded."  This document further shows that the applicant was awarded a 70 percent disability rating. 

15.  A VA Rating Decision document, dated 21 November 1973, shows that the date of the last examination was 18 October 1972.  This document further shows that a total disability rating had been in effect because of unemployability and that his disability rating was 70 percent.

16.  A VA Rating Decision document, dated 1 November 1974, shows that the applicant's total disability rating because of unemployability was reduced to Scheduler Evaluation because of failure to return employment questionnaire.  This form further shows that no physical exam was conducted.

17.  A VA Rating Decision document, dated 16 January 1975, shows that the applicant's total disability rating because of unemployability was reduced to scheduler evaluation because of failure to return employment questionnaire.  This form further shows that no physical exam was conducted, the date of the last physical exam was 18 October 1972, and that he was awarded a 70 percent disability rating.

18.  Department of the Army Letter Orders, dated 31 March 1975, show that the applicant was ordered to Patterson Army Hospital, Fort Monmouth, New Jersey on 27 June 1975 for a TDRL Physical Evaluation.  The address on these letter orders was "48 B____ Dr, Morris Plains, NJ."

19.  Department of the Army Letter Orders, dated 3 November 1975, show that the applicant was ordered to Patterson Army Hospital, Fort Monmouth, New Jersey in December 1975 for a TDRL Physical Evaluation.  The address on these letter orders was "48 B____ Dr, Morris Plains, NJ."

20.  A VA Rating Decision document, dated 22 January 1980, shows that the applicant's total disability rating because of unemployability was reduced to Scheduler Evaluation because of failure to return employment questionnaire.  This form further shows that no physical exam was conducted and that he was awarded a 70 percent disability rating.

21.  On 22 July 2009, the US Army Physical Disability Agency (PDA) provided an advisory opinion to this application.  The PDA stated that the applicant did not undergo the required TDRL medical reevaluation every 18 months and that the PDA's processing of the applicant's case appears to have been done correctly and absent clear evidence to the contrary, it is presumed to have been done without error.  The PDA concludes that if the applicant can provide current VA documentation confirming that the medical condition did not improve, the ABCMR may want to consider recognizing that the condition incurred in 1971 is still essentially unchanged and it would be an injustice not to correct his military records to reflect a 60 percent permanent military disability rating effective 2 July 1971.

22.  The applicant was provided a copy of the PDA advisory opinion for review and comment.  On 18 August 2009, the applicant provided a written response to the opinion.  In this response, the applicant essentially restates that he was not provided the notification to appear for a physical examination or to provide employment information.  He further argues that once he received notification of the need to appear for a physical, he reported to Martinsburg, WV, VA Hospital.

23.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  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, rank, or rating.  Separation by reason of disability requires processing through the PDES.

24.  Title 38, U.S. Code, sections 1110 and 1131, 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.  The VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  However, these changes do not call into question the application of the fitness standards and the disability ratings assigned by proper military medical authorities during the applicant’s processing through the Army PDES.

25.  Title 10, U.S. Code, section 1202, provides for the placement of a member on the TDRL when the disability may be permanent.  Placement on the TDRL requires that the member meet the criteria of Title 10, U.S. Code, section 1201.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his discharge should be changed to show that he was medically retired was carefully considered and determined to have merit.

2.  The applicant sustained a significant injury to his right arm while in service to his country during combat.  He was initially placed on the TDRL on 2 July 1971 with planned reevaluation in September 1972.  Although discharged from the TDRL for failure to comply with examinations, evidence shows that he has been receiving compensation from the VA for over 35 years.  VA records further show that the applicant was without use of his right hand over three years after being placed on the TDRL resulting in a 70 percent disability rating.  Evidence further indicates that the last physical examination completed while the applicant was on the TDRL was 18 October 1972.

3.  Although the applicant was entitled to a medical retirement, a failure to comply with the laws and regulations regarding reexamination resulted in the cancellation of those benefits.  Evidence suggest that an administrative error may have occurred which resulted in the applicant's not appearing before the required physical examination.

4.  Given the traumatic nature of the injuries received, the fact that the applicant remained in a VA hospital for several months, and coupled with the PDA advisory opinion which supports correcting the applicant's records, it would appropriate to grant the relief requested in this case.

5.  Therefore, as a matter equity the applicant's records should be corrected to show that on 18 October 1972, his disabilities were determined to be permanent, rated 70 percent disabling, and he was removed from the TDRL; and that, effective 19 October 1972, he was permanently retired in the highest grade satisfactorily held.
BOARD VOTE:

____x____  ____x____  ____x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing that on 18 October 1972, his disabilities were determined to be permanent, rated 70 percent disabling, and he was removed from the Temporary Disability Retired List; and that, effective 19 October 1972, he was permanently retired in the highest grade satisfactorily held.  

2.  The Board further recommends that the Defense Finance and Accounting Service audit his pay account and that he be paid all back pay and allowances due as a result of this correction.




      _______ _   _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)                                         AR20090009770



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ABCMR Record of Proceedings (cont)                                         AR20090009770



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