BOARD DATE:	  21 April 2011

		DOCKET NUMBER:  AR20100023693


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 his records to show he was authorized 30 percent (%) severance pay at the time of his discharge from the Army.

2.  The applicant states:

* At the time of his expiration term of service (ETS), he was not informed of his right to file a claim
* He sustained an injury to his right shoulder when he was in combat in Vietnam
* He should have received 30% severance pay as a result of being awarded the Purple Heart

3.  The applicant provides:

* A cover letter from a law firm, dated 31 August 2010
* two VISTA [Veterans Health Information Systems and Technology Architecture] Electronic Medical Documentation forms, dated 20 May 2010 and 29 June 2010
* a Western Union Telefax, dated 2 April 1970

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 was inducted into the Army of the United States on 8 April 1969.  He completed training as an infantry indirect fire crewman.

3.  He arrived in Vietnam on 6 September 1969.  On 2 April 1970, the applicant’s parents received a Western Union Telefax notifying them that he was slightly injured in action on 1 April 1970, while in Vietnam.  The telefax shows he was at an artillery firing position when the area came under attack by a hostile force.  The applicant sustained a dislocated right shoulder.  He was hospitalized and treated as a result of his injury.

4.  On 4 September 1970, the applicant was awarded the Purple Heart for the injury he sustained on 1 April 1970.

5.  The applicant departed Vietnam en route to the U.S. on 5 September 1970.  He was released from active duty (REFRAD) on 8 April 1971, at his ETS.  He was transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his remaining Reserve obligation.

6.  The applicant’s records does not show that was suffering from any conditions at the time of his REFRAD that would have warranted him being processed for discharge through medical channels.

7.  The VISTA Electronic Medical Documentation the applicant submits shows he was seen by a radiologist on 20 May 2010 for right shoulder pain.  His diagnosis was normal.  On 23 June 2010, the applicant had a Magnetic Resonance Imaging (MRI), due to right shoulder pain.  The findings of the MRI revealed mild 

degenerative arthrosis of the acromioclavicular joint without evidence of significant inferior spurring present.  Partial thickness of the rotator cuff tear of the supraspinatus and infraspinatus was noted.

8.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his/her office, rank, grade or rating because of disability incurred while entitled to basic pay.

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) currently in effect establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  It provides for medical evaluation boards, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501 (Standards of Medical Fitness).  If the medical evaluation board (MEB) determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a physical evaluation board (PEB).

10.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment including officer procurement programs, retention, and separation including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities.

DISCUSSION AND CONCLUSIONS:

1.  There is insufficient evidence to show that the applicant was suffering from any unfitting condition at the time of his REFRAD, which would have required him to be processed for discharge through medical channels.

2.  The evidence of record shows that the applicant dislocated his right shoulder while he was in Vietnam.  He was hospitalized and treated for his condition.  He continued to perform his duties until he was REFRAD at his ETS.

3.  The applicant has failed to show that the action taken by the Army in his case was incorrect.  Therefore, there is no basis for granting the applicant's 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.

ABCMR Record of Proceedings (cont)                                         AR20090005994



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ABCMR Record of Proceedings (cont)                                         AR20100023693



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