BOARD DATE:	  20 October 2010

		DOCKET NUMBER:  AR20100009439 


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, in effect, correction to his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to correct missing or erroneous data.

2.  The applicant states the following corrections should be made to his DD Form 214 with a separation date of 13 March 1970:

* Item 2 (Service Number) is blank
* Item 3 (Social Security Number [SSN]) should be "xxx-xx-8248"
* Item 11c (Reason and Authority) should be "TEMPORARY PHYSICAL DISABILITY 100%"
* Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) should include the Vietnam Campaign Medal with Device (1960)

3.  The applicant provides a copy of the following documentary evidence:

	a.  his DD Form 214;

	b.  page 1 of his Medical Evaluation Board (MEB) Proceedings, dated 4 November 1969;

	c.  a Standard Form 502 (Narrative Summary), dated 4 November 1979;


	d.  a Department of Veterans Affairs (VA) Form 23-8426 (Veteran Affairs Routing Form); and

	e.  a VA Form 10-9034 (Medical Record Report), dated 20 June 1986.

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 enlisted in the Regular Army on 11 December 1967 for a 3-year period.  He completed his initial entry training and he was awarded military occupational specialty 32C (Pole Line Construction).  The applicant's DD Form 4 (Enlistment Contract - Armed Forces of the United States) shows the following entries:

* Item 1 (Service Number) "RA1xxxxx6"
* Item 19 (SSAN) "xxxxx8248"

3.  The highest rank/grade he attained was specialist four (SP4)/E-4.  He served in the Republic of Vietnam from 4 April 1969 to 3 October 1969 with Company B, 53rd Signal Battalion.  Item 38 (Record of Assignments) of his DA Form 20 (Enlisted Qualification Record) shows he was hospitalized on or about 7 August 1969.  The applicant was subsequently medically evacuated from the Republic of Vietnam to the U.S. Army Hospital at Fort Knox, KY.

4.  On 4 November 1969, an MEB convened and determined the applicant was medically unfit for continued military service in accordance with Army Regulation 40-501 (Standards of Military Fitness), paragraph 3-29, and referred him to a physical evaluation board (PEBD).  The MEB determined the applicant was schizophrenic with paranoia, acute and severe, with manifestations of grandiose ideas, loose associations, confusion, and a preoccupation with religious ideas.  


On the VA Schedule for Rating Disabilities (VASRD), the applicant's VASRD code was 3003.  Additionally, the MEB determined he was mentally competent for pay purposes, and he had the capacity to understand the nature of and to cooperate in PEB proceedings.  Additionally, the applicant stated he did not desire to remain on active duty.  On 12 December 1969, the approval authority concurred and approved the MEB's proceedings.

5.  On 4 February 1970, the PEB convened and determined the applicant was unfit for military service and recommended temporary disability retirement with a 50 percent (%) disability rating percentage.  He concurred with the findings and recommendations of the PEB and waived his right to a formal hearing of his case.  The approval authority concurred with the PEB's findings and recommendations.

6.  On 18 February 1970, the U.S. Army Physical Disability Agency (USAPDA) approved the PEB's findings and recommendations.

7.  Accordingly, the applicant was retired on 13 March 1970 and placed on the Temporary Disability Retired List (TDRL).  He was issued a DD Form 214 that confirms the following:  

* item 2 (Service Number) is blank
* item 3 shows his SSN as "xxx-xx-3483"
* item 11a (Type of Transfer or Discharge), "RETIRED"
* item 11c (Reason and Authority) "TEMPORARY PHYSICAL DISABILITY, TITLE 10, U.S. CODE, SECTION 1202"
* item 22a(1) (Statement of Service - Net Service this Period) "2 YEARS  3 MONTHS  3 DAYS"
* item 22c (Foreign and/or Sea Service) "0 YEARS  6 MONTHS 0 DAYS"
* item 24 "VIETNAM SERVICE MEDAL, NATIONAL DEFENSE SERVICE MEDAL"
* item 30 (Remarks) "DISABILITY RATING 50%"

8.  On 5 July 1972, the applicant reported as directed for a periodic physical evaluation.  The findings of this evaluation were the applicant continued to manifest evidence of the psychotic illness for which he was retired.  His diagnosis was revised to VASRD code 2953, schizophrenic reaction, paranoid type in partial remission.  The doctors who evaluated the applicant agreed that any stress, such as returning to active duty, might result in an exacerbation of acute symptoms.  The doctors further agreed he was mentally competent and that he could manage his affairs and handle funds without supervision. 

9.  On 28 August 1972, a PEB convened and found the applicant physically unfit for continued service and recommended a combined disability rating of 10% and separation from the service with severance pay.  The PEB diagnosis was VASRD code 9203, schizophrenic reaction, paranoid type.  Accordingly, on 18 September 1972 the USAPDA approved the PEB's findings and recommendations.

10.  On 30 November 1972, by Letter Orders Number D10-533, dated 11 October 1972, the applicant was removed from the TDRL and he was discharged from the service with severance pay.  His percentage of disability was 10%.

11.  Item 41 (Awards and Decorations) of the applicant's DA Form 20 shows he received the following awards:

* National Defense Service Medal
* Vietnam Service Medal
* Parachutist Badge
* Republic of Vietnam Campaign Medal with Device (1960)
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar 

12.  As documentary evidence, the applicant provided page 1 of an interim summary from the VA showing he was admitted to a VA hospital on 25 May 1986 and discharged on 21 July 1986.  His diagnoses were schizoaffective schizophrenia, episodic alcohol abuse, and adjustment disorder with mixed disturbance of affect and conduct.  Within the narrative summary, the psychiatrist stated, "THIS PATIENT   WHO IS 70% SERVICE-CONNECTED FOR SCHIZOPHRENIA."  No VA rating decision documents were provided for the Board's review.

13.  References:

	a.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 7-2, provides that an individual may be placed on the TDRL (for the maximum period of 5 years which is allowed by Title 10, U.S. Code, section 1210) when it is determined that the individual’s physical disability is not stable and he or she may recover and be fit for duty, or the individual’s disability is not stable and the degree of severity may change within the next
5 years so as to change the disability rating. 

	b.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rated at less than 30%.
	c.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service.

	d.  Army Regulation 600-8-22 (Military Awards) states the Republic of Vietnam Campaign Medal with Device (1960) was awarded by the Government of Vietnam to all members of the Armed Forces of the United States for qualifying service in Vietnam during the period 1 March 1961 through 28 March 1973.  Qualifying service included assignment in Vietnam for 6 months or more.  

	e.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the unit awards received by units serving in the Republic of Vietnam.  This document shows that the unit to which the applicant was assigned was awarded the Meritorious Unit Commendation for the period 1 July 1968 to 31 December 1969 by Department of the Army General Orders (DAG) Number 48, dated 1971.

	f.  DAGO Number 8, dated 1974, announced   award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation to Headquarters, U.S. Military Assistance Command and its subordinate units during the period 8 February 1962 to 28 March 1973 and to Headquarters, U.S. Army Vietnam and its subordinate units during the period 20 July 1965 to 28 March 1973.

	g.  Army Regulation 600-8-22 states a bronze service star is worn on the appropriate service ribbon, to include the Vietnam Service Medal, for each credited campaign.  During the applicant's tour in Vietnam, he participated in two campaigns:

* Tet 69 Counteroffensive, 1969 (23 February 1969 to 8 June 1969)
* Vietnam Summer - Fall 1969 (9 June to 31 October 1969)

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that there are errors on his DD Form 214 as follows:  

* Item 2 is blank
* Item 3 should be "xxx-xx-8248"
* Item 11c should be "TEMPORARY PHYSICAL DISABILITY 100%"
* Item 24 should include the Republic of Vietnam Campaign Medal with Device (1960)

2.  Upon the applicant's enlistment in the Regular Army, he received a service number.  At that time, he also provided documentation to military officials to show he was issued an SSN.  Based on the evidence documented on the applicant's initial DD Form 4 his service number is "RA1xxxxxx6" and his SSN is 
"xxx-xx-8248".  Therefore, he is entitled to correction of his DD Form 214 to show his service number as RA1xxxxxx6 and his SSN as xxx-xx-8248.

3.  A PEB determined the applicant had an unstable medical condition which could improve or increase in severity over a period of time.  Therefore, he was properly placed on the TDRL with a 50% disability rating percentage.  After reevaluation, his condition was determined to be in remission, and rated 10% disabling at the time.  As a result, he was separated from the service by reason of physical disability with entitlement to disability severance pay.

4.  The applicant has not submitted any evidence which shows his disability was not properly rated in accordance with the VASRD.  His separation with severance pay was in compliance with law and regulations.  Therefore, item 11 of his DD Form 214 is correct as shown.  On 30 November 1972, he was removed from the TDRL and discharged with severance pay by letter orders.

5.  Title 38, U.S. Code, sections 310 and 331, permits the VA to award compensation for disabilities that were incurred on 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 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 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.  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.  Confusion arises from the fact that different rating systems are used by the Army and the VA.  While both use the VASRD, not all of the general policy provisions set forth in the VASRD 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.

6.  All members of the Armed Forces are entitled to award of the Republic of Vietnam Campaign Medal with Device (1960) for at least 6 months service in the Republic of Vietnam.  As the applicant's record shows he served the requisite period of time in the Republic of Vietnam he is entitled to a correction of his
DD Form 214 to show award of the Republic of Vietnam Campaign Medal with Device (1960).

7.  Records show the applicant's unit received the Republic of Vietnam Gallantry Cross with Palm Unit Citation and the Meritorious Unit Commendation during his tour of duty in the Republic of Vietnam.  Therefore, he is entitled to correction of his DD Form 214 to show these two unit awards.

8.  Records show the applicant was awarded the Vietnam Service Medal.  Additionally, records show he participated in two campaigns while serving in the Republic of Vietnam.  Therefore, he is entitled to two bronze service stars for wear on his already-awarded Vietnam Service Medal.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x_____  ___x_____  ____x_  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was 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.  adding to item 2 of his DD Form 214 the entry "RA1xxxxxx6";

	b.  deleting from item 3 of his DD Form 214 the entry "xxx-xx-3483" and replacing it with the entry "xxx-xx-8248";

	c.  deleting from item 24 of his DD Form 214 the Vietnam Service Medal; and

	d.  adding to item 24 of his DD Form 214 the:

* Vietnam Service Medal with two bronze service stars
* Republic of Vietnam Campaign Medal with Device (1960)


* Republic of Vietnam Gallantry Cross with Palm Unit Citation
* Meritorious Unit Commendation

2.  The Board further determined that 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 amending his DD Form 214 to show in Item 11c the entry "TEMPORARY PHYSICAL DISABILITY 100%."



      _________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)                                         AR20100009439



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ABCMR Record of Proceedings (cont)                                         AR20100009439



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