IN THE CASE OF:	   

		BOARD DATE:	  2 August 2012

		DOCKET NUMBER:  AR20120000544 


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 military records to show he was retired due to a physical disability.

2.  The applicant states he is a 1960 graduate of West Point and was, at one time, a committed career infantry officer and pilot.  That was until a nasty firefight in the spring of 1967 rendered both of his legs partially inoperable.  He was given a restricted permanent physical profile and was grounded from flight status.  His military career was unceremoniously ended.  After 2 years of major surgeries and a second tour in the Republic of Vietnam (RVN), he submitted an unqualified resignation which became effective on 4 September 1969.

3.  The applicant further states that he had been told by several medical personnel that he should have pressed for a medical discharge; however, he ignored this advice.  Being the "let's get it done yesterday," he foolishly took the quickest route without careful thought to the consequences.  So now, he is 73 years of age, in poor health, 90 percent, and totally disabled with a wife of over 48 years.  He is uninsurable.  His second career was as a Christian missionary with no retirement benefits.  All this simply means that his wife is vulnerable to financial ruin if he dies before she does.

4.  The applicant states he suffers from post-traumatic stress disorder from his two tours of duty in the RVN, where he experienced many intense combat situations and witnessed children being shot and the loss of good friends.  It took 3 years for him to get his head back on straight.  He was eventually diagnosed with ischemic heart disease requiring a bypass surgery in 2010.  As a pilot in the RVN he was all over the country and most certainly was exposed to Agent Orange.  His kidneys are currently in "stage five" failure.  He has to wear two hearing aids as a result of his time as a helicopter gunship platoon leader.  He was shot down several times and suffers from chronic back pain.  He contracted a fever of unknown origin causing him delirium and unknown subsequent health issues.  He suffers from Barretts Esophagitis which is quite debilitating.

5.  The applicant provides copies of:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* Standard Form 516 (Clinical Record - Operation Report), dated 
19 September 1967 and 5 February 1968
* Standard Form 513 (Clinical Record - Consultation Sheet), dated               6 December 1968
* Letter, 214th Combat Aviation Battalion, dated 7 December 1968
* Standard Form 88 (Report of Medical Examination, dated 11 March 1969
* Standard Form 89 (Report of Medical History), dated 11 March 1969
* 1st Indorsement, Medical Disqualification, dated 28 April 1969
* DA Form 759 (Individual Flight Record and Flight Certification - Army), dated 1 August 1969
* Report of operation for reconstruction of right and left knee, dated June 1996 and December 1996
* Letter, Summary of Benefits, Department of Veterans Affairs (VA), dated 14 July 2011

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.  On 8 June 1960, the applicant was appointed as a second lieutenant, infantry officer in the Regular Army.  He was subsequently awarded military specialties as both a fixed and rotary wing aviator.
3.  The applicant served overseas in the Republic of Korea for 15 months during 1961 and 1962.

4.  In June 1966, he was assigned for duty in the RVN.

5.  On 28 December 1966, the applicant tendered his unqualified resignation from the U.S. Army, to be effective at the end of his tour of duty in the RVN.  He stated in his request that he had become increasingly impressed with the tremendous need a man has for love and a deep knowledge and sense of the presence of God.  He had become so much involved in his desire to help others find great joy in studying and presenting the Holy Scriptures that it had started to interfere with his professional military endeavors.  He felt a direct calling to the ministry of God and considered the possibility of being a military chaplain.

6.  On 12 February 1967, the applicant was assigned as a patient at the U.S. Army Hospital at Camp Zama, Japan.

7.  On 6 March 1967, the applicant's unqualified resignation was denied based on his remaining service obligation until February 1969.

8.  On 5 August 1968, the applicant submitted another request for unqualified resignation based on his personal need and desire to enter the ministry.  He had explored the possibility of becoming a military chaplain, but was informed that because he had more than 5 years of commissioned service he was not eligible for the program.  His convictions regarding the work of Christ were deep and caused him an unwillingness to place the Army first in priority.  He wanted to be separated.

9.  On 9 October 1968, the applicant's request was denied because of the military's overriding need for his skills.  His retention was required until at least August 1970.

10.  On 30 October 1968, the applicant was assigned for duty in the RVN.  On 
7 December 1968, the battalion surgeon informed the applicant's commander that he was diagnosed with bilateral unstable knees and was unfit for duty in the RVN because his painful and debilitating condition rendered him ineffective.  There was a question as to whether his condition rendered him unfit for retention in the service.  He was also precluded from any further service in the RVN.  He departed the RVN on or about 28 December 1968.

11.  The DA Form 3349 (Medical Condition - Physical Profile Record) shows that based on a review of the applicant's medical examination and his health records on 6 February 1969, he was given a permanent profile for his lower extremities due to residual laxity in both knees.  He was precluded from crawling, stooping, running, prolonged standing or marching or other strenuous physical activity.

12.  On 25 April 1969, the applicant was suspended indefinitely from flying status.

13.  Standard Form 88, dated 16 May 1969, shows that the applicant was found to be qualified for resignation or retention in the military service.

14.  On 23 May 1969, the applicant again tendered his unqualified resignation for the same reasons as stated in his two previous requests.  He further stated that he was now on a permanent profile and was permanently grounded.  He did not desire an appointment in the U.S. Army Reserve.

15.  On 18 June 1969, the applicant's request was approved for a 1 September 1969 date of separation.  This approval was based on his having fulfilled all service obligations and having been permanently grounded due to a permanent physical profile.

16.  On 4 September 1969, the applicant was discharged under the provisions of Army Regulation 635-100, chapter 3, as a result of his unqualified resignation.  He had attained the rank of major, pay grade O-4, and had completed 9 years, 
2 months, and 27 days of creditable active duty service.

17.  The reports provided by the applicant dated in June and December 1996 show that he had received arthroscopic surgery on both of his knees.

18.  The VA summary of benefits, provided by the applicant, reports that effective 1 April 2011 the VA found him to be permanently physically disabled due to service connection rated at 90 percent disabling.  He was also determined to be 100 percent unemployable due to his disability.

19.  Army Regulation 40-501 provides the standards for medical fitness for retention and separation, including retirement.  Soldiers with medical conditions listed in this chapter should be referred for disability processing.

20.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade or rating.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected to show he was retired due to a physical disability.

2.  The evidence of record clearly shows that the applicant was discharged from military service as a result of his tendering an unqualified resignation, and not due to a physical disability that made him unfit for further duty.

3.  There is no evidence to show the applicant's medical condition was medically unfitting for retention at the time in accordance with Army Regulation 40-501; therefore, there is no evidence to show there was a basis for a medical retirement or separation.

4.  An award of a VA rating does not establish entitlement to medical retirement. Operating under its own policies and regulations, the VA, which has neither the authority nor the responsibility for determining medical unfitness for military duty, 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.

5.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.

6.  In view of the above, 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 
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)                                         AR20120000544





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ABCMR Record of Proceedings (cont)                                         AR20120000544



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