IN THE CASE OF:	

		BOARD DATE:	  21 September 2010

		DOCKET NUMBER:  AR20090021141 


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 discharge with severance pay be changed to a medical retirement, that he be shown to be entitled to Combat Related Special Compensation (CRSC), and that his award of the Army Good Conduct Medal be added to his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

2.  The applicant states he was discharged as medically unfit for retention, but he should have been retired under Title 10, U.S. Code, chapter 61 (Retirement or Separation for Physical Disability).  He received orders for the Army Good Conduct Medal, but it was not added to his DD Form 214.

3.  The applicant provides copies of 2nd Armored Division General Order Number 1719, a 23 December 1971 DD Form 214, a 23 May 1985 National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), U.S. Army Military Personnel Center Orders D76-31, a 7 December 2001 Department of Veterans Affairs (VA) disability letter, and an Internet information sheet on CRSC.

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 served on active duty in the Regular Army from 24 February 1970 through 23 December 1971.

3.  He served in Vietnam with Company E, 3rd Battalion (Airmobile), 506th Infantry, from 18 August 1970 through 29 October 1970 and with Company E, 2nd Battalion (Airmobile), 327th Infantry Regiment, from 30 October 1970 through 29 July 1971.

4.  Headquarters, 2nd Armored Division, General Order Number 1719, dated 6 December 1971, awarded the applicant the Army Good Conduct Medal.

5.  His 23 December 1971 DD Form 214 lists his awards as the National Defense Service Medal, Vietnam Service Medal with one bronze service star, Republic of Vietnam Campaign Medal, Combat Infantryman Badge, Bronze Star Medal, Army Commendation Medal, Expert Marksmanship Qualification Badge with Grenade Bar, and Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

6.  The applicant served in the New Jersey Army National Guard (NJARNG) from 27 February 1976 through 23 May 1985.

7.  U.S. Army Military Personnel Center Orders D76-31, dated 25 April 1985, discharged the applicant from the NJARNG with severance pay effective 23 May 1985.

8.  The 23 May 1985 NGB Form 22 provides the following information:

	a.  9 years and 3 months of service in the NJARNG;

	b.  4 years and 2 months of prior Reserve Component service;

	c.  1 year, 9 months, and 18 days of prior active Federal service;

	d.  his authorized awards are the National Defense Service Medal, Vietnam Service Medal with one bronze service star, Republic of Vietnam Campaign Medal, Combat Infantryman Badge, Bronze Star Medal, Army Commendation Medal, Army Service Ribbon and Expert Marksmanship Qualification Badge with Rifle, Pistol, and Grenade Bars; and

	e.  he was discharged as medically unfit for retention.

9.  The VA letter, dated 7 December 2001, states the applicant received "a 
100-percent permanent and total evaluation" for his wartime service-connected disability.  The condition or conditions for his disability award are not of record.

10.  An advisory opinion was obtained from the Chief, Personnel Division, NGB.  He states the applicant did not meet the eligibility requirements for entitlement to CRSC because he was not retired.  NGB recommended denial of CRSC.

11.  A copy of the advisory opinion was forwarded to the applicant.  There is no indication he responded to the opinion.

12.  The U.S. Army Human Resources Command CRSC web site states that CRSC is a benefit for retired veterans with combat-related injuries who meet all of the following criteria:

* Active, Reserve or National Guard with 20 years of creditable service, or permanent medical retiree, or TERA retiree
* receiving military retired pay
* have 10 percent or greater VA-rated injury
* military retired pay is reduced by VA disability payments (VA Waiver)
* the injury must be for a combat-related situation, not just a service-related injury
* must be able to provide documentary evidence that the injury was a result of one of the following:
* training that simulates war (e.g., exercises, field training)
* hazardous duty (e.g., flight, diving, parachute duty) 
* an instrumentality of war (e.g., combat vehicles, weapons, Agent Orange)
* armed conflict (e.g., gunshot wounds (Purple Heart], punji stick injuries

13.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the awards received by units serving in Vietnam.  This pamphlet shows that while the applicant was assigned to:

	a.  Company E, 3rd Battalion, 506th Infantry Regiment, it was cited for award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation;

	b.  Company E, 2nd Battalion, 327th Infantry Regiment, it was cited for award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation; and

	c.  not more than one Republic of Vietnam Gallantry Cross Unit Citation will be worn by any individual.  Although multiple awards of this unit citation are not authorized for wear, official military and historical records will indicate all awards received.

14.  Army Regulation 600-8-22 (Military Awards) states that a bronze service star is authorized based on qualifying service for each designated campaign listed in appendix B and that authorized service stars will be worn on the appropriate campaign or service medal.  The regulation also lists the designated campaign periods for which a bronze service star is authorized for wear on the Vietnam Service Medal.  Based on the applicant's dates of service in Vietnam, he participated in the Counteroffensive Phase VII (1 July 1970-30 June 1971) and the Consolidation I (1 July 1971-30 November 1971) campaigns.

15.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade, or rating because of disability incurred while on active duty.

16.  Title 38, U.S. Code, sections 310 and 331, 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.  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 VA benefits based on an evaluation by that agency.

17.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states that in order to be eligible to receive retirement and severance pay benefits the disability must have been incurred or aggravated as the proximate cause of performing active duty.  For medical retirement, the disability must be rated at a minimum of 30 percent at the time of separation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states he was discharged as medically unfit for retention, but he should have been retired under Title 10, U.S. Code, chapter 61.  He received orders for the Army Good Conduct Medal, but it was not added to his DD Form 214.

2.  The applicant was awarded the Army Good Conduct Medal on 6 December 1971.  This award was omitted from his DD Form 214 and it is appropriate to correct his record to include it at this time.

3.  The applicant served during two campaign periods and is authorized to wear two bronze service stars on his Vietnam Service Medal.  The DD Form 214 only indicates one bronze service star.  Therefore, it is appropriate to delete this entry and replace it with the Vietnam Service Medal with two bronze service stars.

4.  During his period of service in Vietnam, both units to which he was assigned were awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation.  This award is not listed on his DD Form 214.  It is appropriate to correct his record by showing he is authorized the Republic of Vietnam Gallantry Cross with Palm Unit Citation (2nd Award).

5.  The applicant was separated from the National Guard with severance pay.  Although the applicant is currently in receipt of a total disability evaluation from the VA, he is not retired and he has not submitted any evidence to show he is entitled to a physical disability retirement.  His physical valuation board proceedings are not available, and it is presumed that the proceedings were conducted in accordance with governing law and regulations and that the disability rating he was given was proper.

6.  An award of a VA rating does not establish entitlement to medical retirement or separation.  The VA is not required to find unfitness for duty.  Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service.  Furthermore, 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 must find unfitness for duty at the time of separation before a member may be medically retired or separated.

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 failed to submit evidence that would satisfy this requirement and no relief is warranted on the issue of entitlement to CRSC.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ____X___  ____X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  deleting the Vietnam Service Medal with one bronze service star from his DD Form 214 and

	b.  showing that, in addition to the awards listed on the DD Form 214, the applicant is also authorized the Army Good Conduct Medal, Vietnam Service Medal with two bronze service stars, and the Republic of Vietnam Gallantry Cross with Palm Unit Citation (2nd Award).

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to medical retirement or eligibility for CRSC.



      ____________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)                                         AR20090021141



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ABCMR Record of Proceedings (cont)                                         AR20090021141



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