BOARD DATE:	  23 July 2013

		DOCKET NUMBER:  AR20120020053 


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.  award of the Purple Heart and

	b.  correction of his DA Form 199 (Physical Evaluation Board (PEB) Proceedings) and DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show:

		(1)  the cause of his medical conditions awarded Department of Veterans Affairs (VA) Schedule for Rating Disabilities (VASRD) code 8100 for migraines and VASRD code 5238 for spine as "as a direct result of armed conflict" in lieu of "instrumentality of war,"

		(2)  his Army disability rating for VASRD code 8100 the maximum of 
50-75 percent in lieu of 30 percent,

		(3)  award of an Army disability rating for VASRD code 6100 for bilateral hearing loss of 0 percent;

		(4)  award of an Army disability rating for VASRD code 6260 for constant tinnitus of 10 percent,

		(5)  award of an Army disability rating for VASRD code 5238 for cervical spine stenosis of 30 percent,

		(6)  award of an Army disability rating for VASRD code 5238 for lumbar spine stenosis of 20 percent, and

		(7)  award of an Army disability rating for VASRD code 9434 for chronic adjustment disorder of 30 percent.

2.  The applicant states he was made aware of a probable error in his Army medical discharge in the course of his VA treatment in 2010.  It took him almost 2 years to uncover and research the probability of error and confirm that suspicion through freedom of information requests and records searches.  He was initially an enlisted Soldier.  He went to Officer Candidate School and was commissioned.  He then became a helicopter pilot and flew helicopter gunships in Vietnam from September 1968 to September 1969.  In May 1969, he was injured by an enemy warhead explosion while on duty.  After his tour of duty in Vietnam, he was assigned and stationed at Fort Wolters, Texas, as a helicopter instructor pilot.  In August 1971, he retired due to permanent physical disability.  In a 45-page brief, the applicant states his arguments concerning his issues.

	a.  On or about 19 May 1969, the base at Phu Heip, Vietnam, was attacked by enemy troops with mortars.  While running toward his helicopter gunship, an enemy high-explosive warhead (a mortar round) landed so close to him that its blast caused an ammunition box to blow into his head, face, neck, and spine, causing an onset of injuries and lifelong disabilities.  He contends that his records contain sufficient evidence showing that he had post-concussive syndrome which transitioned into completely intractable migraine headaches with mood disorder and depression.  He uses these terms knowing that in 1971 the Army had not yet identified post-traumatic stress disorder, and post-concussive syndrome awareness was low and inadequately treated in the field.  The combination of the warhead impact, over-pressure, and blast wind initially caused unconsciousness, various visible wounds, and damage to his teeth and jaw.  He was not hit directly by shrapnel, but rather by flying debris caused by the blast.  The warhead debris caused visible damage to his face, head, mouth, jaw, and teeth, and massive headaches and extremely sore cervical and lumbar spine from the impact of an ammunition box.  The warhead was also a huge part of creating his constant bilateral tinnitus and hearing loss.  He is thankful that he had eyewitnesses to help him to treatment then and to provide their recollections now.  Also, his physicians in Vietnam still vividly recall his treatment and attest to the injuries.

	b.  He requests award of the Purple Heart for the injuries described in the preceding paragraph and correction of his Army records, to include the PEB ratings and disabilities.  He also requests a rating increase and additional ratings for the balance of his disabilities caused by the instrumentality of war and combat.
	c.  He states that in his 2 years of research and freedom of information requests, he found nothing to suggest the PEB looked at his complete medical records.  The PEB states it relied on the statements in the medical evaluation board (MEB) addendum when making its determinations.  However, the four doctors who signed the MEB addendum painted a picture of incapability and made a further statement that his disabilities were unstable and worsening.  Yet, when comparing the VASRD with the PEB ratings, the MEB addendum alone shows the PEB erred.

	d.  The applicant contends that he has found certain existing and new evidence of record via statements made by various medical officers.  Other statements and evidence by doctors who treated him in Vietnam in 1969 purport a belief that the Army lost portions of his medical file.  Yet more evidence includes VA disability awards made by the Combat Related Special Compensation (CRSC) Board.  He also speaks of old evidence establishing disabilities not rated or considered by the PEB, but known to exist in 1971.  He contends there is VA and Army-accepted evidence supporting approval of all his requests.

	e.  The applicant contends that the PEB's deviations from guidance caused errors that both created and compounded problems of inequities in his 1971 rating decision.  He states the PEB lacked attention to detail and process, as shown by the incomplete DA Form 199.  Collectively, there are a series of administrative failures that resulted in real harm by the PEB.  He contends that the PEB did not play fair in great part due to their faulty process and failures in regard to his due-process rights.

	f.  The applicant states that each of his disabilities have been recognized as being combat related and are the basis for his award of CRSC.  He contends that the CRSC findings and awards are new material facts that favorably resolve reasonable doubt and credibility issues for each of his claim requests that are at odds with the PEB findings.

	g.  The applicant also states the VA awarded him 100-percent non-employability based on the same VASRD requirements then and now which raises and helps resolve reasonable doubt questions surrounding the lack of proper consideration and application of the MEB and PEB in 1971, supporting his contention that his disability under VASRD code 8100 was underrated.

	h.  The applicant contends that self-regulating agencies such as the MEB and PEB have processes that structure decision making in important ways for good reason.  Avenues to remove the error(s), injustices, and inequities also exist for this Board through "a community of proofs."  For example, the CRSC and VA acceptance of both "new evidence and apparently lost evidence," now resurrected and found credible by the Army, which speaks about his disabilities picture more completely and do so with Congressional authority, statutory authority, and Army authority.  

	i.  The MEB in 1971 stated in decisive and conclusive words that he was incapable.  The VA states he is 100-percent unemployable.  The Army CRSC awards him the maximum scheduled rating for VASRD code 8100.  To bolster his argument for his line-of-duty investigation and his contention that it did not go far enough, he presents uncontroverted Army accepted evidence, treating doctors statements from Vietnam, eyewitness statements and his own statements – all accepted as factual by the Army CRSC and the VA – establishing a different set of "line of duty decisions and disability determinations."  This more inclusive set of facts was determinable in 1971 on the face of the MEB addendum and should have been rated 50-75 percent in 1971.

	j.  The applicant argues that denial of his benefits and ratings in August 1971 was influenced by the out-of-sequence procedures:

* PEB discharge pushed forward on 21 April 1971 before MEB request had resolved the existence of a proper claim
* he was on leave for 30 days starting 4 May 1971
* he was not permanently grounded until 11 May 1971
* DA Form 8-118 (Medical Board Proceedings), dated 11 May 1971
* MEB addendum, dated 26 May 1971
* incomplete and unsigned DA Form 199, dated 8 June 1971

	k.  The applicant contends that the problems with the sequencing noted above is obvious, realizing one error combines to produce a second and often larger error.  The absence of consideration follows and that drives his rating errors in 1971.  He concludes that when these mistakes happen, then individuals' and Soldiers' rights get bounced around and often depart from Congress's and agency's intent.

	l.  The applicant understands that the MEB and PEB have certain latitudes in regulation.  However, nothing gave them the authority to "wholesale eliminate certain responsibilities to preserve my rights, obviate or disregard DOD [Department of Defense], DODI [Department of Defense Instruction], and Army rules, administrative due process and regulations to my disadvantage.  The facts as portrayed by the PEB were extracted from an incomplete and incompetently sequenced or developed Administrative Record provided by the MEB.  Hence, the lack of certain required matters in the official PEB record."  He believes the PEB had a conclusion in mind and discounted or ignored the facts presented in the MEB addendum.  It is impossible for him to understand, guess, or deduce what the PEB actually relied upon due to the overwhelming lack of specifics.  "For these reasons the MEB and PEB inadequacies in their records, belie any oversights my efforts to compile an accurate and complete medical nexus 'from the MEB and PEB perspectives'…"  He has made every attempt to treat all entries fairly.

	m.  The VA and CRSC have both granted him retroactive awards based on meeting the VASRD criteria for the following:

* maximum rating of 50 percent for VASRD code 8100
* VA rating of 100-percent unemployability in connection with VASRD code 8100
* 0 percent for VASRD code 6100 (bilateral hearing loss)
* 30 percent for VASRD code 5238 (cervical spine stenosis)
* 20 percent for VASRD code 5238 (lumbar spine stenosis)
* 10 percent for VASRD code 6260 (tinnitus)

	n.  The applicant contends that the MEB is not expected to know how to determine disability ratings or to be able to determine whether a disability rating is likely to change over the ensuing years.  However, the MEB can offer useful information to help the PEB make these determinations.  The MEB should provide a prognosis statement describing changes likely to occur within the next 5 years.  He questions the stability of his condition at the time, saying that a finding of one or more of the conditions as not being permanent and stable may result in the individual being placed on the temporary disability retired list.  He quotes DODI 1332.38, E3P6.1.1, "A disability shall be considered unstable when the preponderance of medical evidence establishes that accepted medical principles indicate the severity of the condition will change within the next 5 years so as to result in an increase or decrease of the disability rating percentage of a finding of fit."

3.  The applicant provides the following documentary evidence:

* Army CRSC decision letter, dated 12 June 2012 (Folder 3)
* Standard Form 507 (Clinical Record), dated 26 May 1971 (Folder 3)
* DA Form 199, dated 8 June 1971 (Folder 3)
* VA letter, date illegible (Folder 3)
* VA Rating Decision, dated 14 March 2012 (Folder 3)
* Eligibility Status Data, Screen 7, dated 2 October 2007 (Folder 3)
* letter from former Army dentist, dated 6 December 2010 (Folder 3)
* letter from former Army dentist, mailed on 3 February 2012 (Folder 3)
* letter from former Army dentist, dated 18 October 2012 (Folder 3)
* DD Form 214, effective 25 June 1967 (Folder 4)
* DD Form 214, effective 17 August 1971 (Folder 4)
* Special Orders Number 101, Headquarters, U.S. Army Primary Helicopter Center/School and Fort Wolters, dated 3 May 1971 (Folder 4)
* Special Orders Number 134, Headquarters, U.S. Army Primary Helicopter Center/School and Fort Wolters, dated 14 June 1971 (Folder 4)
* Special Orders Number 178, Headquarters, U.S. Army Primary Helicopter Center/School and Fort Wolters, dated 10 August 1971 (Folder 4)
* Letter Orders Number D8-1182, Department of the Army, Office of the Adjutant General, Washington, DC, dated 11 August 1971 (three copies – signed and unsigned) (Folder 4)
* DA Form 199 dated 8 June 1971, unsigned (Folder 4)
* DA Form 66 (Officer Qualification Record) (Folder 4)
* DA Form 66B (Insert Sheet to DA Form 66) (Folder 4)
* DA Form 20 (Enlisted Qualification Record) (pages 3 and 4) (Folder 4)
* General Orders Number 3938, Headquarters, 1st Aviation Brigade, Japan, dated 11 August 1969 (Folder 4)
* Bronze Star Medal Citation (Folder 4)
* Standard Form 502 (Clinical Record) dated 4 May 1971 (Folder 4)
* Standard Form 507, dated 4 May 1971 (Folder 4)
* letter, Headquarters, U.S. Army Primary Helicopter Center/School and Fort Wolters, dated 12 April 1971, subject:  Medical Consultation/
Treatment – (Applicant) (Folder 4)
* DA Form 8-118 (Medical Board Proceedings), dated 11 May 1971 (Folder 4)
* Standard Form 88 (Report of Medical Examination), dated 17 July 1968, with enclosures (Folder 5)

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 27 June 1966, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded an infantry military occupational specialty.  On 8 January 1967, he was enrolled in the Infantry Officer Candidate School.

3.  On 25 June 1967, the applicant was discharged from the Regular Army for the purpose of accepting an immediate commission as an Infantry officer in the U.S. Army Reserve with an immediate call to active duty.

4.  On 13 April 1968, the applicant was assigned to Fort Rucker, Alabama, for training as a rotary wing pilot.  He departed Fort Rucker on or about 13 August 1968 for duty in Vietnam.

	a.  On 1 October 1968, he was assigned as an Assistant Platoon Commander, 134th Assault Helicopter Company.

	b.  On 1 June 1969, the applicant was assigned as a rotary wing aviator with the 238th Aviation Company, 268th Aviation Battalion (Combat).

5.  The applicant's available service medical records provided by him contain copies of Standard Forms 600 (Chronological Record of Medical Care), dated from 10 February 1967 through 2 July 1969 (see Folder 6).  These documents show:

	a.  On 19 January 1969, his medical flight clearance was approved.

	b.  On 2 July 1969, an entry was made indicating his unit as the 268th Aviation Battalion (Combat), Army Post Office  96316 (South Vietnam).

6.  He was assigned as a rotary wing aviator with the 238th Aviation Company from 1 June to 30 August 1969.

7.  On or about 30 August 1969, the applicant departed Vietnam for duty at Fort Wolters.

8.  Special Orders Number 101, Fort Wolters, dated 3 May 1971, authorized a 30-day ordinary leave for the applicant with authorization to visit 18 separate countries throughout Europe as a tourist.

9.  The narrative summary of the Standard Form 502, dated 4 May 1971, states the applicant had developed headaches during the previous 6 to 12 months that had progressively become greater and more severe in nature.  The applicant had undergone two neurologic consultations which revealed no abnormal findings.  It was felt at the time that the applicant had a vascular-type of headache.  The physician indicated that the applicant was unfit for retention.

10.  A DA Form 8-118, dated 11 May 1971, reports that an MEB determined the applicant was unfit for duty due to vascular headaches and recommended his presentation to a PEB.  The applicant was not present during the MEB proceedings.  The applicant initialed the form indicating he did not desire to continue on active duty.  The findings and recommendations were approved.

11.  On 26 May 1971, an addendum to the narrative summary discussed in the preceding paragraph 9 stated the applicant's headaches had defied further medical therapy over the preceding several weeks.  He was placed on long-acting ergotamine (ergopeptine), intermittent Cafergot (ergotamine tartrate and caffeine), and ergotamine Medihalers, all of which failed to relieve his symptoms.  His headaches occurred 3 to 8 times per week, during which he was totally unable to carry on regular duty or any other duty.  The applicant's headaches rendered him incapable of flying or of performing his primary specialty.  Because of the degree and frequency of his headaches, he was determined to be unfit for retention.

12.  A DA Form 199, dated 8 June 1971, indicates that it was copied from his VA claims file.  This copy was not signed by anyone and was not properly completed.  The form indicates the applicant was found unfit by the PEB with a combined disability rating of 30 percent under VASRD code 8100 for vascular headaches occurring 3 to 8 times per week.  The remarks section states the PEB reconsidered his case based on the addendum to the MEB.

13.  Letter Orders Number D8-1182, Department of the Army, Office of the Adjutant General, dated 11 August 1971, show the applicant was placed on the Retired List effective 18 August 1971 in the rank of captain/pay grade O-3 with a permanent physical disability rated of 30 percent.

14.  On 22 March 2009, the applicant's sister-in-law wrote a letter of support wherein she discusses his various disabilities.  She states her knowledge of the applicant's conditions stems from conversations between her and the applicant since 1978.

15.  On 22 November 2010, a former sergeant wrote a statement wherein he contends that he was assigned to the 134th Assault Helicopter Company in Vietnam from January 1968 to January 1970.  He states that during a routine mortar attack in May 1969, the applicant was hit in the head by an ammunition box and knocked unconscious.   The applicant was an outstanding Soldier and served his unit and country well.
16.  On 22 November 2010, a former sergeant wrote a statement in support of the applicant wherein he states he was assigned to the 134th Assault Helicopter Company from January 1969 to February 1970.  On 11 May 1969, he contends that he was tracing a broken communication line when the first mortar hit on the flight line.  He left the attack area.  Later he heard that the applicant had been hurt during the attack.

17.  On 27 November 2010, a registered nurse and long-time observer of the applicant's migraines wrote a statement in support of his application.  The nurse stated the applicant had always indicated to her that the onset of his headaches occurred in Vietnam.  The applicant described the trigger as being an enemy mortar attack and described how he was hit by an ammunition box during the explosion of an enemy mortar round.

18.  On 6 December 2010, a former military dentist wrote a letter of support in which he recalls treating the applicant in Vietnam.  The dentist states he knew the applicant who came to the dental clinic with multiple fractured teeth and pain from what he said was a mortar attack at another location.  The dentist treated the applicant for tooth fractures and cavities.  He only saw the applicant once as a patient, but was with him on numerous occasions as a friendship was forged between the dental group and the applicant's helicopter group.  The subject of the mortar attack came up several times.  The dentist contends that the misalignment of the applicant's teeth and fractures are consistent with the type of injury the applicant has described.

19.  On 25 January 2012, a former enlisted Soldier wrote a statement in support of the applicant wherein he said the applicant was on the flight line trying to get to his helicopter gunship when the attack occurred.  The applicant was injured and knocked out by a mortar blast which blew an ammunition box into his head and neck.  He was unconscious for some period and he bled from lacerations on his face and mouth.  He was disoriented and confused when he awoke.  The former Soldier contends he helped the applicant get to a medic who treated him for his injuries.  Afterward, he helped the applicant back to his quarters.  He further stated the applicant had quite a few headaches following this event and needed dental work.  He also states the applicant had told him about being given medical treatment at the base where he was stationed.

20.  In a letter postmarked 3 February 2012, a retired U.S. Army dentist states he was a dentist in Vietnam in June 1969.  He contends that he had the opportunity to treat the applicant on numerous occasions.  It appeared that the applicant had experienced a blast trauma to his head and his oral cavity in combat.  The applicant had many fractured teeth.  Over a period of time, the dentist restored many of those broken teeth.  The applicant's injuries required pain medicine and a period of limited duty.  The dentist states these injuries were the result of a severe blow from combat.

21.  On 14 March 2012, the VA issued a rating decision wherein the applicant was assigned a 50-percent disability rating for his chronic vascular headaches based on very frequent and completing prostrating and prolonged attacks productive of severe economic inadaptability.  He was also awarded total disability compensation because his service-connected disability(ies) kept him from working full time.

22.  In a letter, dated 12 June 2012, the U.S. Army Human Resources Command CRSC Branch notified the applicant that his claim for CRSC had been approved based on the following combat-related conditions:

VASRD Code
Description
Combat Code
Percentage
CRSC Effective Date
Justification/ Comments
6100
bilateral hearing loss
IN
0% 
February 2009
previously awarded; verified percentage and effective date
9434
chronic adjustment disorder
IN
30%
June 2010
previously awarded; verified percentage and effective date
8100
chronic vascular headaches
IN
30%
January 2008-January 2009
previously awarded; changed percentage and adjusted effective date
8100
chronic vascular headaches
IN
50%
February 2009
previously awarded; changed percentage and adjusted effective date
5238
cervical spine stenosis
IN
10%
February 2009-May 2010
previously awarded; verified percentage and effective date
5238
lumbar spine stenosis with arthritis (5003-5238)
IN
20%
February 2009
previously awarded; verified percentage and effective date
5238
cervical spine stenosis
IN
30%
June 2010
previously awarded; verified percentage and effective date
6260
tinnitus
IN
10%
February 2009
previously awarded; verified percentage and effective date
23.  On 18 October 2012, a former dental officer states he was stationed in Vietnam in 1969.  He states that during his tour of duty there were many instances of enemy attacks involving mortars, rockets, and sappers.  These attacks were responsible for many injuries, many of them oral in nature.  The dental officer states that medical records from that period are mostly nonexistent or sketchy at best.  His recollection is that the applicant had suffered oral injuries from being hit in the face with an ammunition box during an attack.  He also incurred other injuries that were treated by medical staff, including severe headaches, ringing in the ears, chronic back pain, and some dizziness with extreme jaw discomfort.  At the time, the effects of a closed-head injury were not well understood.  These were treated the best that they could under the circumstances.  Today the effects of head trauma are much better understood.  The applicant's symptoms can be better explained.  The dental officer opines that the applicant's symptoms were the direct result of the mortar attacks and the ammunition box trauma.

24.  The applicant's name is not shown on the Vietnam casualty roster.

25.  A review of the Awards and Decorations Computer Assisted Retrieval System, an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the U.S. Army Human Resources Command Military Awards Branch, failed to reveal any orders awarding the applicant the Purple Heart.

26.  Army Regulation 600-8-22 provides for award of the Purple Heart to a member of the Armed Forces of the United States who, while serving in any capacity with one of the U.S. Armed Services after 5 April 1917, has been wounded or killed or who has died or may die after being wounded in any action against an enemy of the United States.  Substantiating evidence must be provided to verify the wound was the result of hostile action, the wound must have required medical treatment, and the medical treatment must have been made a matter of official record.

27.  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 sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.  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 Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  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.  

28.  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 error or injustice in the Army rating.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The VA, which has neither the authority, nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual’s civilian employability.  Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at a different disability rating based on the same impairment.  Furthermore, 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.  The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while the VA may rate any service connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be awarded the Purple Heart and his military records should be corrected to show:

	a.  award of the Purple Heart and

	b.  amendment of his DA Form 199 and DD Form 214 as follows:



		(1)  the cause of his medical conditions awarded VASRD code 8100 for migraines and VASRD code 5238 for spine as "as a direct result of armed conflict" in lieu of "instrumentality of war,"

		(2)  his Army disability rating for VASRD code 8100 the maximum of 
50-75 percent in lieu of 30 percent,

		(3)  award of an Army disability rating for VASRD code 6100 for bilateral hearing loss of 0 percent;

		(4)  award of an Army disability rating for VASRD code 6260 for constant tinnitus of 10 percent,

		(5)  award of an Army disability rating for VASRD code 5238 for cervical spine stenosis of 30 percent,

		(6)  award of an Army disability rating for VASRD code 5238 for lumbar spine stenosis of 20 percent, and

		(7)  award of an Army disability rating for VASRD code 9434 for chronic adjustment disorder of 30 percent.

2.  The applicant's name is not shown on the Vietnam casualty roster.  The applicant states he was wounded as the result of an enemy mortar attack on or about 19 May 1969 and he received medical treatment at the time.  The letters of support written in 2010 and 2012 relating the events of the applicant being injured during a mortar attack and receiving medical treatment are not sufficiently corroborated by any official records.  The available service medical records show entries on 19 January and 2 July 1969, but no entries on or near 19 May 1969.  The applicant's dental records are not available for review.  The three letters of support provided by dentists who recall treating the applicant for oral injuries do not provide first-hand knowledge of how he was injured.  The letters simply state that his injuries are consistent with being in combat.  Accordingly, the available evidence is insufficient to base award of the Purple Heart.

3.  The available evidence shows the CRSC Branch determined that his medical conditions were combat related in 2012 and granted him compensation with effective dates no earlier than 2008.  However, that determination is insufficient as a basis to now conclude that any of his medical conditions are the result of armed conflict.

4.  The applicant contends that his medical condition has worsened and the VA currently rates him as 50-percent disabled; therefore, his U.S. Army disability rating should now be raised accordingly.  The evidence shows the VA rated his condition as 30-percent disabled under VASRD code 8100 from the time of his separation until January 2009, which is the same as the rating given by the U.S. Army when he was separated.  There is no evidence showing the PEB and VA assigned a rating for this condition that was not supported by the VASRD in 1971.  There is no evidence showing he had additional medical conditions that rose to the level of "unfitting" in 1971.  It was quite clear that the applicant was unable to continue performing duty as a helicopter pilot because of headaches that did not respond to any known medication at that time.  There is no evidence showing he was grounded and subsequently retired for any other reason.

5.  The applicant argues that the PEB deviated from guidance, thereby causing errors and compounding the problem of inequities in his 1971 rating decision.  He bases his argument on a lack of detail in the available DA Form 199.  That the available DD Form 199 does not contain proper signatures and many of the entries are not complete is accepted.  However, due to the significant passage of time, it is now impossible to know whether the DA Form 199 provided by the applicant is the final version used to record the events of the PEB.  Accordingly, it would not be appropriate to make any changes to this DD Form 199 as requested by the applicant.

6.  The applicant provided a large amount of material in support of his case, all of which has been very carefully considered.  However, the determining issue is what condition(s) caused the conclusion of his Army career and what was/were the appropriate rating(s) for that/those condition(s) at the time.  The answer lies in the medical records that were extant at the time of discharge.  Accordingly, the applicant has not shown that an error or injustice occurred in 1971.

7.  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 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)                                         AR20120020053



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120020053



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1