IN THE CASE OF:	  

		BOARD DATE:	  21 September 2010

		DOCKET NUMBER:  AR20100009820 


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 reconsideration of his request for disability retirement.

2.  The applicant states, in effect, that the Board failed to consider that the evidence of record is misleading and falsified and as such, he cannot prove error or injustice.  He goes on to state that once he was wounded, those in charge decided it was easier and cheaper to discharge him and send him home because he was of no use to them.  He continues by stating that while the military said he was able to work, he could not eat solid foods or speak.  The fact that he was held past his expiration of term of service should attest to the fact that he was not fit for duty and the fact that the Department of Veterans Affairs (VA) granted him a 50% disability rating the day after his release from active duty (REFRAD) should also convince the Board that he should have been retired by reason of physical disability.  Additionally, had he been properly processed by a Physical Evaluation Board (PEB), he would have been assigned a sufficient disability rating to make up for what he lost to the Army. 

3.  The applicant provides a copy of the Board's previous decision with enclosures that consist of copies of his medical records and a copy of his VA Rating Decision.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090010260, on 29 December 2009.

2.  The applicant enlisted in the Regular Army on 28 June 1963.  He completed his basic and advanced individual training at Fort Polk, Louisiana, his airborne training at Fort Benning, Georgia and was then transferred to Fort Bragg, North Carolina to undergo special forces training as a medical specialist.

3.  He completed his special forces training (44 weeks) and was assigned to Fort Bragg for his first duty assignment. 

4.  He was transferred to Vietnam on 5 April 1965 and was promoted to the rank of sergeant on 17 April 1965.  He was assigned to Company B, 5th Special Forces Group for duty as a medical specialist.

5.  On 16 November 1965, he was wounded by a gunshot wound to the jaw and was evacuated to the 3d Field Hospital in Saigon and then to a hospital in Okinawa for treatment.  He was subsequently medically evacuated to William Beaumont Hospital, El Paso, Texas and then to Brooke General Hospital in San Antonio, Texas on 14 January 1966. 

6.  On 22 July 1966, the applicant signed an affidavit in which he indicated that he desired to be retained on active duty beyond his scheduled expiration of term of service (ETS) for the purpose of continuing medical care and/or disability processing if applicable.

7.  On 8 September 1966, a Medical Evaluation Board (MEB) was convened at Fort Sam Houston, Texas and the applicant was present for the proceedings.  The MEB found that the applicant was medically fit with limitations (no assignment requiring use of a field telephone or which requires clear speech) and recommended that he be returned to duty.  The findings and recommendation of the MEB were approved on 16 September 1966.

8.  On 19 September 1966, the applicant acknowledged that he had been informed of the findings and recommendations of the board.  He also lined through and initialed the sentences “I do not agree with the board’s action and desire to appeal, my written appeal is attached as inclosure no.”

9.  On 22 September 1966, the applicant was honorably released from active duty due to the expiration of his term of service.  He had served 3 years, 3 months, and 15 days of total active service of which 107 days were the result of his being retained past his ETS.

10.  On 3 June 1967, the Veterans Administration (VA) awarded the applicant a 50% disability rating effective 23 September 1966.  The VA rating indicates that the applicant was employable.

11.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states, in pertinent part, that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  

12.  There is a difference between the VA and the Army disability systems.  The Army’s determination of a Soldier’s physical fitness or unfitness is a factual finding based upon the individual’s ability to perform the duties of his or her grade, rank or rating.  If the Soldier is found to be physically unfit, a disability rating is awarded by the Army and is permanent in nature.  The Army system requires that the Soldier only be rated as the condition(s) exist(s) at the time of the PEB hearing.  The VA may find a Soldier unfit by reason of service-connected disability and may even initially assign a higher rating.  The VA’s ratings are based upon an individual’s ability to gain employment as a civilian and may fluctuate within a period of time depending on the changes in the disability.

13.  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.

DISCUSSION AND CONCLUSIONS:

1.  While it is clear that the applicant was retained beyond his ETS in order to receive medical care, there is no evidence in his military records, and the applicant failed to provide sufficient evidence which, shows that his medical condition limited his duty performance to the extent that warranted further evaluation for physical disability.  

2.  The applicant’s contention that the officials in charge at the time simply discharged him because he was of no use to the Army and that records were created that were misleading and false has been noted and appears to be without merit.  The very fact that he was afforded the opportunity to remain on active duty to receive medical care and processing is indicative that officials wanted to provide him the treatment he deserved and that it was their goal to return him to duty.  In any event, the applicant has submitted insufficient evidence to support his contention.

3.  Additionally, the applicant has not provided sufficient evidence to show that he was not afforded proper disability processing or that the evaluation rendered by the MEB was incorrect.  It is further noted that he did not appeal the MEB decision when afforded the opportunity to do so.

4.  As previously mentioned, an award of a VA rating does not establish error or injustice in whether or not an Army rating is given, or in an Army rating that is given.  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.  Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at different positions.

5.  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 has failed to submit evidence that would satisfy this requirement.  

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 to amend the decision of the ABCMR set forth in Docket Number AR20090010260, dated 29 December 2009.

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)                                         AR20100009820





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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)