IN THE CASE OF:
BOARD DATE: 21 October 2010
DOCKET NUMBER: AR20100008959
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, the daughter of a deceased former service member (FSM), requests correction of her fathers records to show, in effect, he was medically retired.
2. The applicant states the following:
* Her dad was hurt in the Army and was never paid disability
* Her dad lost his hearing, got shot in the head and leg, and he was exposed to Agent Orange and other chemicals
* Her dad should have been discharged from the Army with a physical disability
* The Department of Veterans Affairs (VA) has her dads paperwork
* Her dad had black spots all over his body and his feet were messed up
3. The applicant provides a copy of the FSMs death certificate.
CONSIDERATION OF EVIDENCE:
1. The FSM was born on 2 January 1929. He was inducted into the Army of the United States on 23 March 1951 and he was honorably discharged on 1 March 1954 at the expiration of his term of service.
2. The FSM enlisted in the U.S. Army Reserve (USAR) on 7 March 1955. He was discharged on 30 March 1958 for the purpose of immediate reenlistment. He reenlisted on 31 May 1958 and he continued to serve in the USAR through a series of reenlistments. His service record does not show he was assigned to Vietnam during the period Agent Orange was in use (between 1962 and 1971).
3. Headquarters, Fifth U.S. Army, Fort Sam Houston, TX, memorandum, Subject: Notification of Eligibility for Retired Pay at Age 60, also known as the 20-Year Letter, dated 28 June 1974, was issued to the FSM.
4. The FSM was transferred to the Retired Reserve on 10 July 1974. His service record does not contain his medical documents or any indication he sustained any injuries or was exposed to any hazardous chemicals during his period of service.
5. The FSM was retired and placed on the retired list on 5 June 1988 in the rank of sergeant.
6. 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 incurred while entitled to basic pay. It states that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability. 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. Under the laws governing the Army Physical Disability Evaluation system, Soldiers who sustain or aggravate physically unfitting disabilities must meet several line of duty criteria to be eligible to receive retirement and severance pay benefits. The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training.
7. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent.
DISCUSSION AND CONCLUSIONS:
1. The FSMs service record does not indicate he sustained injuries (hearing loss or shot in the head and leg) while he was in the Army.
2. The applicant contends the FSM was exposed to Agent Orange and other chemicals while he was in the Army; however, the FSMs service record does not show he was assigned to Vietnam during the period Agent Orange was in use.
3. Although the applicant contends the FSM should have been discharged with a physical disability, the FSMs service record is void of medical documentation to confirm he incurred any physical disabilities which rendered him medically unfit to perform his duties or justify physical disability processing.
4. Absent such evidence the FSM would not have been eligible for consideration by a medical evaluation board or a physical evaluation board, rendering him ineligible for a medical retirement.
5. In view of the foregoing, there is no basis for granting the applicants requested relief.
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.
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