IN THE CASE OF:	  

		BOARD DATE:	  13 May 2010

		DOCKET NUMBER:  AR20090012323 


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, through his elected member of Congress, reconsideration of his request for his 40 percent disability rating to be increased to 70 percent.  The applicant also requests consideration of his Army Combat-Related Special Compensation (CRSC) claim.

2.  The applicant states, in effect, through his elected member of Congress, that all of his service connected disabilities are due to his combat experience in Vietnam to include getting shot down in a helicopter three times.

3.  The applicant provides a Department of Veterans Affairs (VA) Rating Decision, dated 5 June 2009.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080007385, on 10 July 2008.

2.  The applicant's letters dated 22 and 27 January 2010 indicate he has a request for CRSC pending; however, it is not clear from the evidence provided that he requires the ABCMR to take any action on his request.  In the absence of a clear understanding of what the applicant desires the ABCMR to correct in regard to his CRSC claim, this issue cannot not be further discussed in this Record of Proceedings.
3.  The VA Rating Decision, dated 5 June 2009, provided by the applicant is new evidence, which requires that the Board reconsider his request.

4.  On 20 October 1965, the applicant enlisted in the Regular Army for a period of 3 years.  He was awarded military occupational specialty MOS 11B (Light Weapons Infantryman).  He attained the rank of specialist five/E-5.  On 
28 February 1968, his primary MOS was changed to 67N (UH-1 Helicopter Repairman).

5.  The applicant served in the Republic of Vietnam from 3 May 1966 through 17 May 1968.  He performed duties during that time as a security guard, as a door gunner, and as a machine gunner.

6.  The applicant was awarded the Purple Heart for wounds received in action on 17 April 1968.  He was a door gunner when his helicopter was shot down.  He received burns and other injuries in the incident.

7.  On 16 August 1968, the applicant was honorably released from active duty under the provisions of Section VII, Chapter 5, Army Regulation 635-200 (Enlisted Personnel Separations), under the early overseas returnee program.  He was credited with 2 years, 9 months, and 27 days of active Federal service.  He was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement).

8.  On 2 September 1970, the applicant made application to the ABCMR for disability retirement.  In support of his request he submitted a letter from The Surgeon General, who opined the applicant was medically fit at the time of his discharge.  He submitted his (then) current VA rating decisions with a combined 70 percent disability rating for traumatic arthritis of the cervical spine; chronic intermittent subluxation of the left sternal clavicular joint; split thickness of skin graft left arm, third degree burns; and conversion reaction.  He sustained full thickness burns over the left upper arm and scattered areas of superficial partial thickness burns over his face after being shot down in a helicopter.  He also sustained a contusion or strain of his cervical spine with localized pain and tenderness, but with no neurological abnormalities and no loss of motion.

9.  On 20 January 1971, the ABCMR considered the applicant's request for disability retirement.  Based on the fact the VA had initially  rated the applicant  40 percent disabled immediately following his release from active duty (effective 17 August 1968), and based on the fact that the evidence of record showed the applicant could not have performed his duties while on active duty due to his disabilities, the ABCMR determined that the applicant was physically unfit to perform the duties of his office, rank or grade by reason of (1) traumatic arthritis, 20 percent disabling, (2) chronic intermittent subluxation of left sternal clavicular joint, 10 percent disabling, (3) split-thickness skin graft, left arm, third degree burns, 10 percent disabling, and (4) conversion reaction, 10 percent disabling; that the disabilities may be permanent with a combined rating of 40 percent under the Veterans Administration Schedule for Rating Disabilities (VASRD); that the disabilities were incurred while he was entitled to receive basic pay as a member of the Regular component of active duty; that they were the proximate result of the performance of duty and in line of duty; and that he was relieved from active duty on 16 August 1968 by reason of physical disability and placed on the Temporary Disability Retired List (TDRL) of the Army effective 17 August 1968 under the provisions of Title 10 U.S. Code, Section 1202, with entitlement to retired pay of the highest grade satisfactorily held within the meaning of Title 10, U.S. Code, Section 1371.

10.  On 10 September 1971, the applicant was issued a DD Form 215 (Correction to DD Form 214, Armed Forces of the United States Report of Transfer or Discharge) showing that he was retired under the provisions of Title 10, U.S. Code, Section 1552.  His type of discharge was changed in Item 11a to "Retired" and the narrative authority (Item 11c) was changed to “UP 10 USC 1552” (Title 10, U.S. code, Section 1552).

11.  On 1 February 1972, a Physical Evaluation Board (PEB) met and recommended the applicant be retained on the TDRL with reexamination during February 1973.  On 14 February 1972, the applicant concurred with the PEB's findings and recommendations and waived a formal hearing of his case.  

12.  On 1 March 1972, the applicant was notified by the U.S. Army Physical Review Council that his PEB recommendations had been modified.  This modification evaluated the applicant's disabilities as follows: (1)  split thickness skin graft, scars, burns, 3rd degree, left arm, rated as 20 percent disabling, (2) conversion reaction, moderate, rated as 10 percent disabling, and (3) chronic intermittent subluxation of left sternal clavicular joint, without loss of motion, rated as 10 percent disabling.  It retained the applicant's combined rating of 40 percent, and recommended permanent disability retirement.    

13.  On 10 March 1972, the applicant concurred with the findings of the U.S. Army Physical Disability Review Council.  

14.  On 30 April 1972, the applicant was removed from the TDRL and permanently retired as a specialist five/E-5, with a 40 percent disability rating.

15.  The applicant provided a VA Rating Decision, dated 5 June 2009.  This document shows the applicant was given a combined disability rating of 40 percent effective 17 August 1968, 70 percent from 1 March 1970, and 80 percent from 28 December 2004.  The increase in 1970 was due solely to an increase in his disability rating for conversion reaction from 10 percent to 50 percent.

16.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) according to the provisions of Title 10, United States Code (USC) , Chapter 61, (10 USC 61) and Department of Defense Directive (DODD) 1332.18.  It 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.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.

17.  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 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.  Confusion arises from the fact that different rating systems are used by the Army and the VA.  While both use the 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. 

18.  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.  The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while the VA may rate any service-connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.



DISCUSSION AND CONCLUSIONS:

1.  By action of the ABCMR, the applicant was placed on the TDRL and temporarily retired under the provisions of Army Regulation 635-40, chapter 
4-24b(2)  and Title 10, U.S. Code Section 1552 for his disabilities of (1) traumatic arthritis, 20 percent disabling, (2) chronic intermittent subluxation of left sternal clavicular joint, 10 percent disabling, (3) split-thickness skin graft, left arm, third degree burns, 10 percent disabling, and (4) conversion reaction, 10 percent disabling.  His overall combined rating was 40 percent.  This rating was based upon the VA's initial rating of 40 percent.

2.  On 30 April 1972, he was removed from the TDRL and permanently retired due to his disabilities with a disability rating of 40 percent.

3.  This Board recommended that the applicant be rated 40 percent disabled when it granted the applicant’s request in 1971.  At that time the applicant’s VA rating had already been increased to 70 percent and the Board was aware that his rating had been increased.  The reason why the Board did not recommend awarding the applicant a 70 percent disability rating appears to be that his disabilities had worsened after his release from active duty.  The Army must rate a Soldier for the severity of his disabilities at the time of his separation from active duty.  Subsequent increases or decreases in VA disability ratings have no effect on an Army disability rating.

4.  However, the applicant had been given a combined rating of 70 percent effective 1 March 1970, which was prior to the applicant being permanently retired for physical unfitness on 30 April 1972.  This was due solely to the increase in his disability rating for conversion reaction from 10 percent to 50 percent.

5.  The fact that the VA increased the applicant's disability rating over 2 years prior to his permanent rating by the Army does not indicate that the Army's rating was wrong.  The applicant's conversion reaction was viewed by the Army as moderate.  Therefore, it must be presumed that medication and treatment improved the applicant's conversion reaction medical condition by the time the Army conducted its MEB and PEB on the applicant.  It is noted that the applicant, being aware of his VA disability rating, concurred with the PEB's findings and recommendation.

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:

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 to amend the decision of the ABCMR set forth in Docket Number AR20080007385, dated 10 July 2008.




      _______ _ 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)                                         AR20090012323



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090012323



6


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1