IN THE CASE OF:	  

		BOARD DATE:	  13 May 2010

		DOCKET NUMBER:  AR20090017964 


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 his honorable discharge be voided and that he be granted a physical disability retirement.

2.  The applicant states that he was released from active duty (REFRAD) on
1 June 1969 after a tour in the Republic of Vietnam (RVN).  On 2 June 1969 the Department of Veterans Affairs (VA) granted him a combined disability rating percentage of 40 percent (%) for combat-rated injuries.  He contends that since all rated disabilities would have prevented the proper and complete performance of military duties and were above 30%, the separation should have been a disability retirement or medical discharge.

3.  The applicant provides:

* VA Rating Decision memorandum, dated 6 November 2008
* Special Orders Number 148, U.S. Army Personnel Center, Oakland, CA, dated 28 May 1969
* Two DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) for the periods ending 26 June 1967 and 1 June 1969
* DD Form 256A (Honorable Discharge Certificate)


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.  On 15 April 1966, the applicant enlisted in the Regular Army for 3 years.  He completed his training and he was awarded military occupational specialty (MOS) 13E (Field Artillery Operations and Intelligence Assistant).  On 26 June 1967, he was discharged for the purpose of accepting a commission as an officer in the Army.  On 27 June 1967, he was appointed a second lieutenant (2LT)/O-1 in the U.S. Army Reserve (USAR) and entered active duty.  On 27 June 1968, he was promoted to first lieutenant (1LT)/O-2.

3.  Item 17 (Foreign Service) of his DA Form 66 (Officer Qualification Record) shows he served a tour in the RVN during the period 31 May 1968 through 
27 May 1969.  Item 18 (Record of Assignments) shows he was hospitalized for a total 23 days on 17 September 1968.  Item 21 (Awards and Decorations) indicates he was awarded the Purple Heart and Purple Heart with 1st oak leaf cluster by Headquarters, 24th Evacuation Hospital General Orders Number 189, dated 14 September 1968.

4.  His records contain a DA Form 67-6 (U.S. Army Officer Efficiency Report [OER]) for the period from 19 April 1968 to 16 September 1968 and from
17 September 1968 to 25 May 1969.  These reports show that for the period ending:

* 16 September 1968, he was rated as a Forward Observer of an artillery unit engaged in counterinsurgency operations in Vietnam.  The rater stated the applicant performed his assigned duties in combat in a superior manner.  The endorser stated he performed admirably on numerous heavy contact missions.  He displayed good judgment and a strong sense of mission.  On numerous occasions he displayed unusual personal courage.  The rater rated his performance of duties as better than most officers and the endorser rated his performance of duties as equaled by very few officers.

* 25 May 1969, he was rated as the Executive Officer of an Adjutant General company in Vietnam, with major additional duties as Supply and Training Officer.  The rater stated the applicant performed his duties in an exceptional manner.  His supervision of the supply room and training program helped the unit achieve the highest rating on the U.S. Army Vietnam (USARV) Annual General Inspection (AGI).  The endorser states he had compiled an outstanding combat record prior to his assignment to this headquarters.  His exceptional performance of duties may be attributed to his characteristics of imagination, energy, and tenacity.  He works well under combat pressure exhibiting professional competence, devotion, initiative, and perseverance.  The rater and endorser rated his performance of duties as equaled by very few officers.

5.  His DD Form 214 shows he was honorably REFRAD and reverted to the USAR Control Group, (Annual Training) St. Louis, MO on 1 June 1969.

6.  The VA Rating Decision memorandum indicates the following compensation ratings:

   a. Post Traumatic Stress Disorder (PTSD) (Competent), Service-Connected, Incurred 50% from 25 February 2003 and 100% from 3 January 2007.
   
   b. Residuals, Gunshot Wound, Scars, Right Back and Neck, Muscle Group I, Major, Service-Connected, Vietnam Era, Incurred (Combat-Related) 30% from June 1969.

   c. Scar, Left Maxillary Area, Disfiguring, Service-Connected, Vietnam Era, Incurred 10% from 2 June 1969.
   
   d. Tinnitus Due to Acoustic Trauma, Service-Connected, Vietnam Era, Incurred (Combat-Related) 0% from 2 June 1969.

7.  Review of his records failed to reveal a copy of his final physical examination.  There is no evidence to show he was not fit to perform his military duties or that he was recommended to appear before a Medical Evaluation Board (MEB) or a Physical Evaluation Board (PEB).

8.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness 

is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank, or rating in such a way as to reasonably fulfill the purpose of his employment on active duty.
 
9.  Title 38, U.S. Code, sections 1110 and 1131, permit 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 civilian employability.  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.  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.  The applicant's contentions and supporting documents have been carefully considered.

2.  Prior to the applicant's REFRAD, he received two OERs, one as a Forward Observer and the other as an Executive Officer.  The rater and endorser of the respective reports attest to his superior, admirable, or exceptional performance of assigned duties.  Additionally, 3 of the 4 rating officials rated his overall demonstrated performance of duty as "equaled by very few officers."

3.  By virtue of the fact that he was honorably REFRAD and transferred to the USAR (Annual Training) Control Group and that there is no evidence to show he was recommended to appear before an MEB or PEB, there is reason to assume that he was found fit for duty.

4.  The fact that the VA, in its discretion, has awarded him a disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish error or injustice in the decision made by the Army.

5.  Based on the foregoing, there is no basis for granting the applicant's requested relief.

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 the United States during the Vietnam War.  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)                                         AR20090017964



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090017964



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1