IN THE CASE OF:	  

		BOARD DATE:	  30 September 2010

		DOCKET NUMBER:  AR20100011668 


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 correction of item 10 of his DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 15 February 1972, to show he was placed on disability because of an injury received in the line of duty as a direct result of armed conflict.

2.  The applicant states the box indicating that his retirement is based on disability resulting from injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurred in the line of duty during a period of war as defined by law should have been checked on the form.

3.  The applicant provides a DA Form 199, in support of this application.

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 September 1968.  He completed initial entry training and was awarded military occupational specialty 11H (Infantry Direct Fire Crewman).

3.  He arrived in the Republic of Vietnam (RVN) on 4 February 1969.  Evidence in his medical records shows he sustained fragment wounds to his left leg while in action against a hostile force on 15 March 1969.  He continued to receive medical treatment while in the RVN.  He was medically evacuated from the RVN on 24 August 1969 as a result of his injuries.

4.  On 1 February 1970 and 7 July 1970, medical evaluation boards found him medically unfit due to injuries resulting from multiple fragment wounds sustained on 15 March 1969 while in the RVN during enemy mortar attacks.

5.  On 23 July 1970, an informal PEB found him unfit for military service and recommended his placement on the Temporary Disability Retirement List (TDRL).  The PEB found his disability was as a direct result of armed conflict and was caused by an instrumentality of war.  Item 16 of the DA Form 199 was properly prepared to reflect this fact.  He was placed on the TDRL effective 31 October 1970.

6.  On 15 February 1972, a second PEB found him unfit for duty for severe incomplete paralysis of his sciatic nerve and recommended his permanent retirement from the service with a disability rating of 60 percent.  The PEB did not indicate in item 10 of the DA Form 199 whether or not his retirement was based on disability resulting from injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurred in the line of duty during a period of war as defined by law.

7.  Letter Orders Number D 3-1182, dated 21 March 1972, directed his removal from the TDRL and permanent retirement due to physical disability.  He was retired by reason of permanent disability on 1 April 1972.  The special instructions line on these letter orders is blank.

8.  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.  It states that a member whose retirement from the service is based on disability resulting from injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurred in the line of duty during a period of war is entitled to certain special considerations if he subsequently goes to work for the Federal Government.  The disability must have resulted from injury or disease received in line of duty as a direct result of armed conflict and which itself renders the Soldier unfit.  A disability may be considered a direct result of armed conflict if it was incurred while the Soldier was engaged in armed conflict or in an operation or incident involving armed conflict or the likelihood of armed conflict, if a direct causal relationship exists between the armed conflict or the incident or operation and the disability, or if the disability which is unfitting was caused by an instrumentality of war and was incurred in the line of duty during a period of war.  A determination that a disability was caused by an instrumentality of war and incurred in the line of duty will be appropriate only when it is also determined that the disability so incurred, in itself, renders the member physically unfit and was incurred during one of the periods of war as defined by law.

9.  Appendix N (Instructions for DA Form 199) of Army Regulation 635-40, in effect at the time, stated that for item 10, the entry will be made in accordance with the provisions of paragraph 4-33 (Armed conflict and instrumentality of war) and will be made in all cases (although pertinent only to members who will be retired).  For a member on the TDRL, make an entry only if the DA Form 199 placing him on TDRL did not indicate a finding.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that item 10 of his DA Form 199 should be corrected to show he was placed on disability retirement because of an injury received in the line of duty as a direct result of armed conflict has been carefully considered.

2.  The DA Form 199, dated 23 July 1970, which recommended his placement on the TDRL, was properly prepared to reflect that "his retirement is based on disability resulting from injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurred in the line of duty during a period of war as defined by law."  The regulation in effect at the time provided that for a member on the TDRL, an entry would be made in item 10 of the DA Form 199 only if the DA Form 199 placing the member on the TDRL did not indicate a finding.  Therefore, the DA Form 199, dated 15 February 1972, was properly prepared because an entry in item 10 was not required in accordance with the governing regulation at the time.

3.  Based on the above, no error was made in the preparation of the DA Form 199 in question and there is no basis to grant the applicant's request.  A copy of the 1970 DA Form 199 will be provided to the applicant.
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)                                         AR20100011668



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ABCMR Record of Proceedings (cont)                                         AR20100011668



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