IN THE CASE OF:
BOARD DATE: 16 November 2010
DOCKET NUMBER: AR20100013763
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 previous request to correct his records to show he was medically retired with an 80% disability rating.
2. As a new argument, the applicant states, in effect, the Combat Related Special Compensation (CRSC) decision letter, dated 21 December 2004, shows he was approved for CRSC based on his Department of Veterans Affairs (VA) disability rating for "loss of leg, upper - 80%." His records should be corrected to show he was retired with an 80% disability rating.
3. The applicant provides a self-authored statement, a physical evaluation board (PEB) transcript, a PEB review memorandum, a permanent disability retirement list (PDRL) evaluation, and a CRSC decision letter.
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 AR20090001079, on 21 April 2009.
2. In connection with his request for reconsideration, the applicant submitted a CRSC decision letter relating to his physical disability which was not previously reviewed by the ABCMR; therefore, it is considered new evidence and as such warrants consideration by the Board.
3. The applicants records show he enlisted in the Regular Army for a period of 3 years on 22 November 1966. He was honorably discharged on 20 November 1967 to accept a commission as an officer in the Army. He was appointed in the rank/grade of second lieutenant/O-1 on 21 November 1967 and promoted to the rank/grade of first lieutenant (1LT)/O-2 on 21 November 1968.
4. His records show he served in the Republic of Vietnam (RVN) from 28 June through 29 October 1968 while assigned to 2nd Battalion, 319th Artillery, 101st Airborne Division. On 30 August 1968, he was awarded the Purple Heart for wounds received in connection with military operations against a hostile force in the RVN on 29 August 1968.
5. He was treated for his wounds in the RVN and in a military hospital in Japan. On 29 October 1968, he was assigned to the Medical Holding Company, Martin Army Hospital, Fort Benning, GA.
6. On 5 September 1969, a PEB determined he was permanently unfit for duty by reason of a 60% physical disability rating, incurred while entitled to receive basic pay. On 23 September 1969, he was retired from active service in the rank/grade of 1LT/O-2 and transferred to the U.S. Army Reserve (Retired Reserve).
7. His records contain a DD Form 149 (Application for Correction of Military or Naval Record Under the Provision of Title 10, U.S. Code, Section 1552), dated 12 December 1985, that shows the applicant requested to be medically retired at a higher percentage of disability due to chronic osteomyelitis and other residuals of his gunshot wound. The President, Washington PEB, Walter Reed Army Medical Center, Washington, DC, reviewed the application and recommended that his request be denied. This documentation further shows the applicant requested that the pending application be returned to him. Accordingly, on
9 May 1988, the ABCMR returned the application to him without further action.
8. On 21 April 2009, the ABCMR denied his request for correction of his records to show he was permanently retired in the rank/grade of captain/O-3 with a disability rating of 60%, along with all pay and benefits. The Board determined his medical condition was fully considered and evaluated under the Physical Disability Evaluation System (PDES). The evidence of record showed he appeared before a formal PEB, acknowledged he understood his rights, he was afforded the opportunity to call witnesses, and that the applicant offered testimony in his own behalf. The evidence further shows the formal PEB found his combined disability rating was 60%, recommended that he be permanently retired from service, and that he indicated he agreed with the PEB recommendations.
9. The applicant provides a CRSC decision letter, U.S. Physical Disability Agency (USAPDA)/CRSC, dated 21 December 2004, wherein it states his application for CRSC was approved based on his VA disability rating of 80% for the loss of his upper leg, effective 1 June 2003, as a combat related service disability. At the time of the letter, Soldiers were only entitled to CRSC if they had retired with at least 20 years of service.
10. Title 10, U.S. Code, Chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The USAPDA, under the operational control of the Commander, U.S. Army Human Resources Command, Fort Knox, KY, is responsible for operating the PDES and executes Secretary of the Army decision-making authority as directed by Congress in Title 10, U.S. Code, Chapter 61.
11. Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. The VA does not have authority or responsibility for determining physical fitness for military service. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.
12. The National Defense Authorization Act of 2008, Section 641, expanded CRSC eligibility effective January 1, 2008. This eliminated the requirement for 20 years of service to qualify for CRSC. Those members who are Temporary Early Retirement Authority and disability retirees with less than 20 years of service are now eligible for CRSC. However, disability retirees with less than
20 years of service are subject to reduction by the amount that the disability base pay exceeds the service base pay.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends his medical retirement disability rating of 60% should be changed to 80% based on a CRSC decision rating. The decision letter stated the determination was based on his VA disability rating of 80% for the loss of his upper leg as a combat-related service disability effective 1 June 2003.
2. A disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and can only be accomplished through the PDES. The evidence of record shows his physical disability evaluation was conducted in accordance with applicable law and regulations and he concurred with the PEB's recommendation. The applicant was properly rated for his physical disabilities at the time of his medical retirement. Therefore, he is not entitled to the 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 to amend the decision of the ABCMR set forth in Docket Number AR20090001079, dated 21 April 2009.
_______ _ _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) AR20100013763
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ABCMR Record of Proceedings (cont) AR20100013763
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