IN THE CASE OF:	  

		BOARD DATE:	  10 November 2011

		DOCKET NUMBER:  AR20110008563 


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 DD Form 214 (Report of Transfer or Discharge) and/or his retirement orders to state his service-connected disability incurred in combat with an enemy of the United States or his service-connected disability was caused by an instrumentality of war and incurred in the line of duty during a period of war.

2.  The applicant states he is in the process of retiring from civil service employment and in order to get credit for his military service without loss of pay, his DD Form 214 or separation orders need to include a statement that his disability was incurred in combat with the enemy or as a result of an instrumentality of war.

3.  The applicant provides:

* his DD Forms 214 for the period ending 8 April 1968 and 13 January 1970
* General Orders Number 68, issued by Headquarters, 12th Combat Aviation Group, dated 21 August 1968, awarding him the Purple Heart for being wounded in action in Vietnam on 25 July 1968
* General Orders Number 13, issued by Headquarters, U.S. Army Hospital, Ryukyu Islands, dated 4 March 1969, awarded him the Purple Heart for being wounded in action in Vietnam on 13 February 1969
* 6 pages of service medical records between 8 September and 23 October 1969
* 
a Standard Form (SF) 88 (Report of Medical Examination, dated
12 August 1969, a DA Form 8-118 (Medical Board Proceedings), dated
24 October 1969
* a DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated
28 November 1979
* an extract of Special Orders Number 250, dated 30 December 1969, for permanent disability retirement effective 13 January 1970
* his undated fax cover sheet to the Army Benefits Center – Civilian
(ABC-C), subject:  GS Retirement, Military disability combat-related documentation
* an email response from a Human Resources (HR) Specialist from ABC-C, dated 19 April 2011
* his Defense Finance and Accounting Service (DFAS) CL 7220 (Retiree Account Statement), effective 2 December 2010

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 a warrant officer rotary wing aviator serving in Vietnam on 13 February 1969 when his aircraft was hit by enemy fire and he fell from the exploding aircraft injuring his back.  He received the Purple Heart for this injury.

3.  The applicant's service medical records show he was treated for several injuries following his aircraft being shot down, to include a significant injury to his back that resulted in partial paralysis and warranting processing through the Physical Disability Evaluation System (PDES).

4.  A 28 November 1969 PEB found the applicant unfit for duty due to a compression fracture on the L-1 vertebra and bilateral incomplete paralysis of the ulnar nerve.  He was afforded a 50 percent (%) disability evaluation for this injury. 

Item 16 (If Retired because of disability, the board makes the recommended finding that the member's retirement) of his DA Form 199 shows the entry "is based on disability resulting from injury or disease received in line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurred in line of duty during a period of war as defined by law."

5.  On 13 January 1970, the applicant was retired by reason of physical disability 50% disability rating percentage and placed on the Retired List on 14 January 1970.  He was retired as a chief warrant officer two.

6.  In the HR Specialist's email to the applicant, she stated that the record clearly shows his disability was the result of his being shot down but the Office of Personnel Management (OPM) requirement that there be a statement that his disability was the result of enemy action or an instrumentality of war was not in ANY (emphasis added by the HR Specialist) of the paperwork provided.  It was recommended the applicant have the Army correct his DD Form 214 or retirement orders to include one of these statements or as an alternative, provide him with a statement containing one of the statements.

7.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It establishes standardized policy for preparing and distributing the DD Form 214.  Block 18 is to be used for mandatory entries when a separate block is not available for an entry.

8.  The regulation in effect at the time pertaining to requirements for entries on separation orders did not provide for an entry showing the reason for permanent disability retirement to state it was or was not the result of enemy action or an instrumentality of war.  Army Regulation 600-8-105 (Military Orders) currently requires the following statements to be included in the separation order: "Disability is based on injury or disease received in LOD (line of duty) as a direct result of armed conflict or caused by an instrumentality of war and incurred in the LOD during a war period as defined by law:  (Enter “Yes” or “No”) and "Disability resulted from a combat related injury as defined in 26 USC 104 (Title 26,
U.S. Code, section 104): (Enter “Yes” or “No”).

DISCUSSION AND CONCLUSIONS:

1.  The applicant states he is getting ready to retire from Civil Service and in order to get credit for his military service without loss of pay, his DD Form 214 or 

separation orders need to include a statement that his disability was incurred in combat with the enemy or as a result of an instrumentality of war.

2.  The record shows and the ABC-C has stated that the evidence provided to them clearly shows his disability was the result of being shot down but they are unable to grant him the credit for this fact because neither his DD Form 214 nor his separation order has a specific statement that the disability was the result of enemy action or an instrumentality of war.

3.  At the time of the applicant's retirement, regulations and formats for separation orders did not contain the provision to include the statements currently required related to the cause of a Soldier's disability.  

4.  Therefore, to avoid potential confusion over the significant difference in his separation orders and to facilitate the applicant's ease of reporting the correction, it would be appropriate, as an exception to policy, to include the following statements in item 18 (Remarks) of his DD Form 214 for the period ending 
13 January 1970:  "Disability is based on injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurred in the line of duty during a war period as defined by law:  Yes” and "Disability resulted from a combat-related injury as defined in Title 26, U.S. Code, section 104:  Yes.”

BOARD VOTE:

____X____  ____X____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding to item 18 of his DD Form 214 for the period ending 13 January 1970 the entry:

	a.  "Disability is based on injury or disease received in LOD as a direct result of armed conflict or caused by an instrumentality of war and incurred in the line of duty during a war period as defined by law:  Yes” and

	b.  "Disability resulted from a combat related injury as defined in Title 26, U.S. Code, section 104:  Yes.”



      ____________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)                                         AR20110008563



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ABCMR Record of Proceedings (cont)                                         AR20110008563



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