IN THE CASE OF:	  

		BOARD DATE:	  13 September 2011

		DOCKET NUMBER:  AR20110004562 


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 a change of his discharge from honorable to medical.

2.  He states he was wounded and received the Purple Heart, but there is no reference to being "close combat wounded."  He states he needs the additional benefits of a medical discharge because he is in constant pain that is more severe every day.

3.  He provides a self-authored statement, pages from his Department of Veterans Affairs (VA) records, his WD AGO Form 53-55 (Enlisted Record and Repot of Separation - Honorable Discharge), a letter from a physician to the VA, a printout of data from his hospital admission card, correspondence he received from the National Archives and Records Administration, and an earnings statement from the Social Security Administration.

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's complete military record is not available to the Board for review.  A fire destroyed approximately 18 million service members' records at the National Personnel Records Center (NPRC) in 1973.  It is believed most of his records were lost or destroyed in that fire.  This case is being considered using the documents provided by the applicant and the Office of the Surgeon General files (commonly referred to as the SGO files), a health record research project which involved transposing hospital admission card data from the periods of World War II and the Korean Conflict onto magnetic tape.

3.  The applicant was inducted into the Army of the United States on 15 March 1944.  He was honorably discharged on 2 May 1946.

4.  His WD AGO Form 53-55 shows in:

* item 33 (Decorations and Citations) he was awarded the Purple Heart
* item 34 (Wounds Received in Action) he was wounded in the European African Middle Eastern theater of operations on 2 December 1944

5.  The SGO files show, on 2 December 1944, he received a penetrating wound to his thigh with no nerve or artery involvement.  He was hospitalized for 93 days and returned to duty in March 1945. 

6.  He provides VA records showing, effective 1 November 1950, he received a 40 percent (%) service-connected disability rating for "scars, shrapnel, right thigh and right knee with limitation of flexion and weakness muscle group XIV."  These records also show, effective 3 May 1946, he received 0% ratings for defective hearing (right ear), a scar (left thigh), and trench foot.  He received a 20% rating for lumbar fusion effective 26 December 1989.

7.  He states he currently has a 100% combined service-connected disability rating from the VA for post-traumatic stress disorder, lumbar spine surgery, right thigh muscle injury, and left thigh injury. 

8.  Army Regulation 615-361 (Enlisted Men – Discharge – Medical), in effect at the time, discussed Certificates of Disability for Discharge (CDD).  The regulation stated determination of eligibility for discharge for physical disability was the responsibility of medical authorities.  When an enlisted patient at a station hospital was determined by medical authorities to be a candidate for a disability discharge, he would be transferred from his unit of assignment to the station hospital’s detachment of patients.  The enlisted patient would then undergo evaluation by a board of medical officers in order to determine whether or not to award a CDD.  As disability occurring in the service was usually made the basis of a claim for pension, the regulation cautioned special care would always be taken to set forth fully in the CDD the origin of the disability and to describe particularly the injury or disease and the disability arising there from.

9.  Title 38, U.S. 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, does not 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.  During World War II, Army Regulation 615-361 provided the guidance for the process involved in the issuance of CDDs.  The CDD process began at the hospital and was the responsibility of medical authorities.  If a sick or injured Soldier was seen as a candidate for a CDD, a board of medical officers was convened to review the case and make a proper determination.

2.  The SGO files show the applicant was hospitalized for 93 days to receive treatment for a wound to his thigh.  The record shows he was returned to duty, and there is no evidence showing he was considered for referral to a board of medical officers for a possible CDD.  In fact, the record shows he served for more than a year after he was returned to duty.  

3.  The fact that the VA, in its discretion, has awarded him a disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish physical unfitness for Army purposes.  Operating under different law and its own policies and regulations, the VA, which has neither the authority nor the responsibility for determining medical unfitness for military service, awards ratings because a medical condition is related to service (service-connected) and affects the individual’s civilian employability.  Furthermore, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__X_____  ___X____  ___X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes his sacrifices in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.



      ___________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)                                         AR20110004562





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ABCMR Record of Proceedings (cont)                                         AR20110004562



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