IN THE CASE OF:	  

		BOARD DATE:	    22 November 2011

		DOCKET NUMBER:  AR20110003588 


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 9 (Date of Birth), item 13b (Type of Certificate Issued), and item 22 (Statement of Service) of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 20 April 1970.  It appears he is also requesting an increase to his disability rating given by the U.S. Army and back pay for incorrect pay received upon his release from active duty.

2.  The applicant states that while at Walter Reed Army Medical Center (WRAMC), Washington, D.C., he received orders for the purpose of further hospitalization and treatment.  He received no further orders until May 1972.  He then reported to Fort Lee, VA where he was given accommodations without regard for his physical limitations.  He was not afforded psychological, audiological, or neurological exams and no professional evaluated his physical ability as to locomotion and adaptability to his prosthesis.  He was given a
40 percent (%) disability rating percentage for loss of leg but he was 100% disabled due to injuries suffered in Vietnam.

3.  The applicant states that according to his records, his pay was in error due to not being paid for the correct number of years, pro-pay, and combat and leave pay.  He contends he was never given a discharge and his active identification was never taken.  He continues that when he left WRAMC he was given orders to report to a Veterans Administration (VA) medical center in Virginia and all the ratings were made when he was a patient there. He was also diagnosed and 

treated for post traumatic stress disorder and along with an amputation, he was treated for ear infections and stomach problems.

4.  The applicant provides:

* his DD Form 214 for the period ending 20 June 1966
* his DD Form 214 for the period 20 April 1970, with a DD Form 215 (Correction to DD Form 214), dated 11 August 2008
* attachment orders to the VA Hospital, Salem, VA
* Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB) proceedings
* two military pay vouchers for the period 1-31 December 1969 and 
1-20 April 1970
* various clinical record documents
* Honorable Discharge Certificate, dated 20 June 1966
* Certificate of Retirement, dated 1 October 1972
* his VA rating decision, dated 4 March 2005.

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 5 March 1964.  He completed training and he was awarded military occupational specialty 12B (Combat Engineer).  His DD Form 4 (Enlistment Record) and DD Form 373 (Consent, Declaration of Parent or Legal Guardian) show his date of birth as 
26 November 1946.

3.  On 20 June 1966, he was honorably discharged for the purpose of immediate reenlistment.  He completed 2 years, 3 months, and 16 days of total active service during this period.  His DD Form 214 for this period of service shows his date of birth as 26 November 1946.

4.  He reenlisted on 21 June 1966 for a period of 6 years.  The DD Form 4 for this reenlistment shows his date of birth as 26 November 1946.

5.  He served in Vietnam from 27 March 1968 to 12 November 1969.

6.  On 27 February 1970, he was examined by an MEB and he was found to have the following conditions:

	a.  multiple fragment wounds, right lower extremity and left foot with partial amputation of left foot;

	b.  absence, surgically acquired, left foot, from ankle disarticulation with 
16 1/2 inch stump; and

	c.  infection, left ankle disarticulation stump, pseudomonas aeuroginosa and staphylococcus aureus.

7.  The MEB concluded the applicant was unfit for further military service and recommended a PEB prior to his separation from the service and transfer to a VA hospital for revision of the amputation and fitting with a prosthesis.

8.  On 11 March 1970, a PEB convened to evaluate the applicant's case.  The PEB assigned a 40% disability rating percentage for leg, left, amputation of (ankle disarticulation) at a lower level, permitting prosthesis.  The PEB recommended his placement on the Temporary Disability Retirement List (TDRL) with re-examination during September 1971.

9.  The applicant concurred with the PEB's findings and recommendation and waived a formal hearing of his case.

10.  On 20 April 1970, he was placed on the TDRL.  Item 9 of his DD Form 214 for this period of service shows his date of birth as 20 November 1946.  Item 13b shows the entry "None."  Item 22a(1) (Net Service this Period) shows he completed 3 years and 10 months of active duty service and item 22a(2) (Other Service) shows the entry "0  0  0," indicating the applicant had no other service.   There is no evidence showing he was issued any type of discharge certificate upon his placement on the TDRL.

11.  On 10 May 1972, he was re-examined by an MEB.  The MEB recommended his re-evaluation by a PEB for permanent retirement based on the absence of his left lower extremity.

12.  On 20 July 1972, he was re-examined by a PEB.  The PEB found him unfit and recommended his permanent retirement with a combined disability rating of 40% under the Veterans Affairs Schedule for Rating Disabilities (VASRD) code 5165 for absence, surgically acquired, left lower extremity, below knee, secondary to multiple fragment wounds.

13.  In a memorandum, dated 3 August 1972, the U.S. Army Central PEB, WRAMC, informed the U.S. Army Physical Review Board that the applicant had been notified on 25 July 1972 of the findings and recommendation of the PEB as evidenced by a receipt signed by him.  The U.S. Army Central PEB pointed out that the applicant, after having been informed of his rights, failed to make an election regarding the board proceedings and an extension of time to make his decision had not been received.  Accordingly, under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), it was assumed the applicant had accepted the findings and recommendation of the board.

14.  Letter Orders Number D9-564, issued by the Department of the Army, Office of The Adjutant General, Washington, D.C., dated 13 September 1972, directed the applicant's removal from the TDRL and permanent retirement with a 40% disability rating percentage.  He was issued a Certificate of Retirement, dated
1 October 1972.

15.  He provided two military pay vouchers and a VA rating decision that indicates he is receiving service-connected disability compensation, rated at 100% based on a number of medical conditions.

16.  Army Regulation 635-5 (Separations Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  It states the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge.  The regulation in effect at the time of the applicant's placement on the TDRL provided that for:

* item 13b, enter the form number of the certificate issued; in cases where no formal certificate is authorized to be issued, enter "None"
* item 22a(2), enter all prior service excluding any service shown in item 22a(1) (Net Service This Period)
* item 22a(3), enter the total of items 22a(1) and 22a(2)
* 
item 22b (Total Active Service), enter total active service completed beginning with the earliest period of active service

17.  Army Regulation 635-5 states a DD Form 363A (Certificate of Retirement) is not issued to members placed on the TDRL.

18.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying.  Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.

19.  Appendix B of the same regulation provides guidance on the Army's application of the VASRD.  The VASRD is primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  Because of differences between Army and VA applications of rating policies, differences in ratings may result.  Once a Soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VASRD.  These percentages are applied based on the severity of the condition.

20.  Army Regulation 635-40, in effect at the time, provided that under the VASRD guidance, amputation below the knee, Code 5165, was ratable at 
40%.

21.  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.  However, an award of a higher VA rating does not establish an error or injustice in the Army rating.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  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.  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.

22.  The legal "Doctrine of Laches" bars a claimant from receiving relief where the claimant's delay in pursuing the claim has operated to the prejudice of the 
opposing party and dismissal of a claim when an applicant's unreasonable delay in asserting an error or injustice makes it impossible for the Army to retrieve information necessary to evaluate an applicant's asserted basis for relief.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's DD Forms 4 and DD Form 373 show his date of birth as 
26 November 1946; however, his DD Form 214 for the period ending 20 April 1970 shows his date of birth as 20 November 1946, which appears to be a typographical error.  Therefore, item 9 of his DD Form 214 for the period ending 20 April 1970 should be corrected to show his correct date of birth of
26 November 1946.

2.  He initially served on active duty for a period of 2 years, 3 months, and
16 days prior to his reenlistment on 21 June 1966.  His DD Form 214 for the period ending 20 April 1970 that does not show any prior service in item 22a(2).  Therefore, his DD Form 214 for the period ending 20 April 1970 should be corrected to include his 2 years, 3 months, and 16 days of prior active service, and 6 years, 1 month, and 16 days of total active service.

3.  Certificates of Retirement are not issued to members placed on the TDRL.  Therefore, the entry shown in item 13b of his DD Form 214 for the period ending 20 April 1970 is correct and with no correction warranted.

4.  The 20 July 1972 PEB proceedings show his unfitting diagnosed conditions was rated under VASRD Code 5165.  The VASRD guidance at the time for Code 5165, amputation below the knee, provided that this medical condition was ratable at 40%.  Therefore, there appears to be no error on the disability rating given to him by the U.S. Army.

5.  He is currently being rated at 100% by the VA.  However, the VA may rate any service-connected impairment, thus compensating for loss of civilian employment.  It may also award 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.  It can also evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

6.  An award or change in the disability rating granted by the VA would not call into question the application of the fitness standards and the disability ratings assigned by proper military medical authorities during the applicant’s processing 
through the Army Physical Disability Evaluation System.  The Army rates only conditions that are determined to be physically unfitting for further military service, thereby compensating the individual for the loss of his or her military career.  As a result, the applicant was properly assigned a disability rating from the Army based on the unfitting diagnosed conditions at the time of his placement on the TDRL, and is now properly being treated and compensated for all his service-connected conditions by the VA.

7.  Regarding the applicant's contention that he did not receive the correct amount of pay, it has been almost 40 years since he was permanently retired.  Available records are inadequate to confirm or deny his contention.  Regrettably, due to the passage of time, pertinent information has been lost or destroyed; therefore, favorable consideration of his request is barred by the doctrine of laches.

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.  deleting from item 9 of his DD Form 214 for the period ending 20 April 1970 the entry 20 November 1946 and replacing it with the entry 26 November 1946;

	b.  deleting from item 22a(2) of his DD Form 214 for the period ending
20 April 1970 the entry "0  0  0" and replacing it with the entry "2  3  16";

	c.  deleting from item 22a(3) of his DD Form 214 for the period ending
20 April 1970 the entry "3  10  0" and replacing it with the entry "6  1  16"; and

	d.  deleting from item 22b of his DD Form 214 for the period ending 20 April 1970 the entry "3  10  0" and replacing it with the entry "6  1  16."

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 correcting item 13b of his
DD Form 214 for the period ending 20 April 1970, increasing the 20 July 1972 PEB disability rating, and payment of back pay.



      _______ _   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)                                         AR20110003588



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110003588



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1