BOARD DATE: 17 August 2010
DOCKET NUMBER: AR20100007482
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 his general discharge be changed to a medical or honorable discharge.
2. He states he had battle fatigue (known now as post traumatic stress disorder (PTSD)) when he left Vietnam.
3. He provides copies of the following:
* A completed DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) in lieu of the DD Form 149 (Application for Correction of Military Records)
* Department of Veterans Affairs (VA) Rating Decision
* Letter from the VA
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicants military records show he enlisted in the Regular Army (RA) on 18 September 1961, was honorably discharged, and immediately reenlisted on 14 August 1962.
3. A DA Form 8-274 (Medical Condition Physical Profile Record), dated 19 July 1965, shows he was given a permanent profile for high myopia (nearsightedness), left eye. He was found medically qualified for duty with permanent limitations. His assignment restrictions were no duty requiring normal visual acuity (both eyes), no firing of weapons, no driving of military vehicles, no guard duty, and no field duty extending into dark hours.
4. He was honorably discharged and reenlisted in the RA, in pay grade E-5, on 14 July 1966, for 6 years.
5. On 25 July 1966, he was punished under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being absent from his place of duty on 21 July 1966.
6. On 27 September 1966, he was convicted by a special court-martial of being absent without leave (AWOL) from 3 through 31 August 1966.
7. He arrived in Vietnam on 11 November 1966.
8. On 25 June 1967, he was punished under the provisions of Article 15, UCMJ, for being AWOL from 14 June through 18 June 1967.
9. He departed Vietnam on 30 July 1967.
10. On 25 March 1968, he was convicted by a special court-martial of being AWOL from 10 February through 13 February and from 3 March through 7 March 1968. His sentence consisted of a reduction and restriction. The sentence was approved and ordered executed on 28 March 1968.
11. He was dropped from the rolls of his organization on 30 April 1968 and returned to military control on 1 March 1971.
12. In a statement, dated 28 April 1971, he stated during his induction physical examination he could not pass the eye test. When the medic was informed he [applicant] was volunteering the medic passed him. Numerous physical examinations resulted in a non-constancy evaluation of his eyes. He has high myopia in both eyes. He encountered numerous problems as far as duty was concerned, especially night duty. He had completed more than 9 years of service and attained specialist six/E-6. He also stated he did have what he thought were due reasons for going AWOL, part of which could be substantiated. That part being his eyes. The second reason was racial and difficult to prove because he was not qualified in that area and he had no witnesses to substantiate his claim. He felt he lacked the physical and mental substances to be of further use to the Army. Therefore, he requested a discharge for the good of the service and himself.
13. On 7 May 1971, after consulting with counsel, he voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10. In doing so, he acknowledged that he had not been coerced with respect to his request for discharge. He also acknowledged he understood he could be discharged under other than honorable conditions and furnished an Undesirable Discharge (UD) Certificate, he could be deprived of many or all Army benefits as a result of the issuance of such a discharge, and that he could be ineligible for many or all benefits administered by the VA. He waived his rights.
14. On 25 May 1971, his unit commander recommended disapproval of his request for discharge for the good of the service. The unit commander stated the applicants past conduct and length of recent AWOL period called for general court-martial.
15. On 26 May 1971, his battalion commander recommended approval of his request for discharge and the issuance of a UD Certificate. The battalion commander stated it would not benefit the Army or society to further punish the applicant or to attempt further rehabilitative efforts.
16. On 19 June 1971, the appropriate authority approved his request for discharge for the good of the service, directed that be reduced to pay grade E-1, and issued a UD Certificate.
17. He was discharged in pay grade E-1, on 23 June 1971, for the good of the service in lieu of trial by court-martial with a UD. He was credited with 1 year, 11 months, and 6 days of net active service this period and he had 1,099 days of lost time.
18. There is no evidence he requested assistance through his chain of command for any medical condition or personal problems which would have prevented him from completing his period of service. His records contain no evidence that he was diagnosed with or treated for a medical condition during his period of service and or that such a condition warranted medical disability discharge processing.
19. On 16 March 1978, the Army Discharge Review Board (ADRB) upgraded his UD to a general discharge and restored his rank to private first class/pay grade E-3 under the Special Discharge Review Program. He was reissued a DD Form 214 changing his character of service to under honorable conditions (general).
20. He provided a copy of his VA Rating Decision, dated 9 November 2009, which shows subsequent to his separation he was awarded a 100 percent service-connection disability for PTSD; a continued 20 percent service-connection for peripheral vascular disease, for both the right and left extremities; a continued 40 percent service-connection for diabetes; a continued 30 percent service-connection for nuclear cataracts, both eyes; and a continued 30 percent service-connection for a residual scar of the left lower extremity. He also provided a copy of a letter from the VA which advised him of the amount and payment start date.
21. Army Regulation 635-200, then in effect, set forth the basic authority for separation of enlisted personnel. Chapter 10 specified a member who had committed an offense or offenses for which the authorized punishment includes a punitive discharge may, at any time after the charges had been preferred, could submit a request for discharge for the good of the service in lieu of trial by court-martial. A UD was normally considered appropriate. The separation authority could direct a general discharge if such a discharge was merited by the Soldier's overall record.
22. Army Regulation 635-200, paragraph 3-7a, provided an honorable discharge was separation with honor. The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be inappropriate.
23. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), establishes the Army Physical Disability Evaluation System 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 office, grade, rank, or rating. It provides for Medical Evaluation Boards (MEB), which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3. If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a Physical Evaluation Board.
24. Title 38, USC, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. The VA has neither the authority nor the responsibility for determining physical fitness for the military service. It awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability.
DISCUSSION AND CONCLUSIONS:
1. In view of the circumstances in this case, the applicant is not entitled to an upgrade of his general discharge to a medical or honorable discharge. He has not shown error, injustice, or inequity for the relief he now requests. He was properly discharged and he has not shown otherwise.
2. He contends, in effect, his misconduct was due to PTSD from serving in Vietnam. However, the evidence of record shows he was punished under Article 15 and convicted by a special court-martial prior to departing for Vietnam. There is also no evidence of record indicating he suffered from PTSD or any disabling condition while in a qualifying duty status pre- or post-Vietnam service which prevented him from completing his period of service or would have supported processing for retirement through medical channels.
3. The evidence also shows he given a permanent profile for being nearsighted in the left eye and was found fit for duty with permanent limitations. He reenlisted (2nd term of reenlistment) again in July 1967 and served continuously until he was reported AWOL and dropped from the rolls on 30 April 1968. Upon his return to military control in 1971, he voluntarily requested discharge in lieu of trial by court-martial. He waived his opportunity to appear before a court-martial to prove his innocence if he felt he was being wrongfully charged. In fact, he advised his unit commander that he desired to be discharged from the Army. He also acknowledged he understood he could be furnished a UD Certificate.
4. The award of a VA rating does not establish entitlement to a medical discharge and/or medical retirement. Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected. In this case, he was properly evaluated and is being compensated for his service-connected medical conditions by the VA.
5. On 16 March 1978, the ADRB upgraded his UD to a general discharge and restored his pay grade of E-3.
6. The applicant has provided no evidence or a convincing argument to show his general discharge should be upgraded to honorable and his military records contain no evidence which would entitle him to a further upgrade of his discharge. The evidence shows his misconduct diminished the quality of his service below that meriting a fully honorable discharge.
7. His administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights. He was properly discharged in accordance with pertinent regulations with due process.
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) AR20100007482
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) ARMY | BCMR | CY2007 | 20070011889
Army Regulation 635-40 establishes the Army physical disability evaluation system 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 office, grade, rank, or rating. The Army must find that a service member is physically unfit to reasonably perform their duties and assign an appropriate disability rating before they can be medically retired or separated 22. The...
ARMY | BCMR | CY2001 | 2001064938C070421
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. Department of the Army Pamphlet 672-3 shows that Company F, 52d Infantry was awarded the Republic of Vietnam Civil Actions Honor Medal, First Class Unit Citation for the period 20 December 1967 – July 1968. The Board notes that the applicant had a permanent L3 physical profile as a result of his second set of injuries received in combat.
ARMY | BCMR | CY2009 | 20090012323
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. 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...
ARMY | BCMR | CY2004 | 040008934C070208
An 8 October 1968 report of medical examination shows that the applicant was medically qualified for separation with a physical profile of 1 1 3T 1 1 1. The evidence shows that the applicant was treated for two months at Ireland Army Hospital at Fort Knox, after which medical personnel felt that his condition was such that he could be discharged from the hospital. At the time of the separation physical examination, competent medical authority determined that the applicant was then...
ARMY | BCMR | CY2014 | 20140018215
The applicant's request for reconsideration of his previous case, in which he contends the Board incorrectly stated his medical conditions and the reason for his discharge, was carefully considered. On 10 January 1972, he was determined to be permanently unfit for duty by reason of physical disability, removed from the TDRL, and discharged from the service with entitlement to severance pay. Since there is no historical evidence of his VA compensation awards and effective dates, there is no...
ARMY | BCMR | CY2014 | 20140014749
The applicant requests correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show award of the Purple Heart and the Presidential Unit Citation. He was wounded in Vietnam, but he did not receive a Purple Heart. His service record does not contain orders that show he was awarded the Purple Heart or medical documents that show he was wounded in action.
AF | PDBR | CY2012 | PD2012-00342
(2) is limited to those conditions which were determined by the PEB to be specifically unfitting for continued military service; or, when requested by the CI, those condition(s) “identified but not determined to be unfitting by the PEB.” The Board determined that only the left foot hammer toe condition is within its purview in this case. The single unfitting condition was the painful, persistent left hammer toe condition after surgical correction. Service Treatment Record Exhibit C....
ARMY | BCMR | CY2011 | 20110018986
He is blind in his left eye from an injury he received in 1967 while serving in Vietnam with Battery C, 77th Artillery, 4th Infantry Division. There is no evidence in the applicants records and he has not provided any evidence that shows he was wounded or injured as a result of hostile action, that he was treated for such wounds by medical personnel, and that his treatment was made a matter of official record. Notwithstanding the applicant's sincerity, in the absence of official orders or...
ARMY | BCMR | CY2001 | 2001061137C070421
The Board considered the following evidence: This form also shows that the applicant was discharged with a physical profile of 131111. The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.
ARMY | BCMR | CY2002 | 2002080050C070215
There are no orders in the applicant’s service personnel records which show that he was awarded the Purple Heart. Army Regulation 672-5-1 (Military Awards), in effect at the time of the applicant's service, provided that the Purple Heart is awarded for a wound sustained as a result of hostile action. However, the DA Form 1051 was not signed by a medical officer and it does not indicate that the applicant was a battle casualty or that his injury was the result of hostile actions or...