IN THE CASE OF:	  

		BOARD DATE:	  21 September 2011

		DOCKET NUMBER:  AR20110004450 


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 medical retirement in accordance with Army Regulations governing disabilities.

2.  The applicant states:

* he was released from his unit as a direct result of an injury incurred while he was in a 2-week drill status
* he lost vision in his right eye, suffers from headaches, and was awarded a 30 percent rating just for his right eye from the Department of Veterans Affairs (VA)
* the same regulations governing disabilities which are used by the Armed Forces are used by the VA
* according to regulations, he should have been medically retired
* the attached DA Form 8-118 (Medical Board Proceedings), block 26 (Permanently Aggravated by Military Service) shows "N/A," which is completely in error
* his injury was noted as a temporary disability which is not true
* the Army tried and has succeeded in keeping him from receiving his medical retirement for all of these years

3.  The applicant provides:

* an electronic printout on "Disability retirement – Military Careers, Retirement – Army Times"
* VA Rating Decision dated 21 March 2007
* Report of Medical History
* DA form 8-118
* VA Form 3101 (Veterans Administration Request for Information)

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 Georgia Army National Guard (GAARNG) for 3 years on 31 August 1959.  He was ordered to active duty for training effective 4 October 1959 and he completed training as a light weapons infantryman.

3.  He was released from active duty on 3 April 1960 and he returned to State control as a member of the GAARNG to complete his remaining service obligation.

4.  The applicant's Clinical Record – Narrative Summary dated 29 August 1961 shows that in July 1960 his unit was activated for its annual short tour training duty at Fort Stewart, Georgia, when he incurred an injury to his right eye.  He was struck in the medial portion of his eye by a firing pin from a machine gun, while he was cleaning the weapon.  He was hospitalized for eight days at the U.S. Air Force Hospital, Hunter Air Force Base where debridement of the conjunctival wound and re-attachment of the superior half of the right medial rectus was accomplished.  Following the surgery he was treated by bed rest and with procaine penicillin.  On 29 July 1960, he was transferred to the U.S. Army Hospital, Fort Stewart, GA, until his discharge from the hospital on 26 August 1960.

5.  Clinical Record – Narrative Summary noted his condition as a traumatic injury of his right eye, which was well healed and his ocular status as stable, without any evidence of progressive disease.  The board stated that his injury resulted in a permanent loss of visual acuity in the right eye due to a secondary optic 

atrophy, the best corrective visual acuity of his eye being 10/200.  The board stated that no medical or surgical treatment was indicated and that the applicant qualified for active duty with a permanent E-3 physical profile, his only limitation being he should not be assigned duties requiring binocular vision.  The medical board's diagnosis was as follows:

* Wound, lacerated, over the area of the insertion of the right medial rectus muscle of the right eye, Line of Duty (LOD) – yes
* Chorioratinitis, old, diffuse, inactive, secondary to diagnosis number 1, LOD – yes
* Atrophy of optic nerve, "n.e.c.," right eye, secondary to diagnosis number 1, LOD - yes

6.  The applicant was released from the GAARNG on 30 August 1962 at the expiration of his term of service.  He was transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his service obligation.

7.  The applicant submits a printout of an Army Times article pertaining to disability retirements.  This article explains the different types of disability retirement, the requirements for receiving a disability retirement, and the differences between Department of the Defense and VA disability rating systems. He submits VA Rating Decision dated 21 March 2007 show he was awarded a 30 percent service connected disability rating for residuals of an injury to the right eye on 12 September 1961.  He was also awarded a 10 percent service connected disability rating for tinnitus on 18 May 2006.

8.  The applicant also submits a Report of Medical History showing he sustained an injury to his right eye in 1960 and the circumstances surrounding his injury.  The Medical Board Proceedings he submits dated 26 August 1960 shows he sustained a wound his right eye and block 25 "Permanently Aggravated by Active Duty" shows "N/A."

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 2-2b, states that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

10.  Army Regulation 40-501, (Standards of Medical Fitness), paragraph 3-3a, states that performance of duty despite an impairment would be considered presumptive evidence of physical fitness.

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

12.  Title 38, United States Code, sections 1110 and 1131, 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.  The applicant's contentions have been noted.  His supporting documents have been considered.

2.  The evidence of record shows that he sustained a right eye injury which was incurred in the LOD.  His record does not show that he was found unfit as a result of his injury.  The medical board found that no medical or surgical treatment was indicated and that the applicant qualified for active duty with a permanent E-3 physical profile.  His only limitation being he should not be assigned duties requiring binocular vision.

3.  The fact that the VA in its own discretion awarded him a 30 percent service connected disability rating based on the fact that his injury was incurred while he was on active duty is not a basis for awarding him a medical retirement.

4.  The applicant has not shown that the injury he incurred was permanently aggravated by active duty.  The DA Form 8-118 his submits is dated 26 August 1960 and it shows that he was to be re-evaluated in 6 months.  The Clinical Record – Narrative Summary dated 29 August 1961, shows his condition as a traumatic injury of his right eye, which was well healed and his ocular status as stable, without any evidence of progressive disease.  

5.  His records show he was medically qualified for active duty service and as such, he was not authorized a medical retirement.


6.  In view of the foregoing, the applicant's request should be denied.

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)                                         AR20110004450



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ABCMR Record of Proceedings (cont)                                         AR20110004450



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