IN THE CASE OF:	  

		BOARD DATE:	  20 March 2014

		DOCKET NUMBER:  AR20130012797 


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, in effect, that the records of her deceased husband, a former service member (FSM), be corrected by voiding his discharge, dated       21 October 1968, and showing that he was retired by reason of permanent disability with entitlement to all back and allowances from that date. 

2.  The applicant states, in effect, the FSM was wounded during his two tours in Vietnam, which included shrapnel wounds to his right leg, ischemic heart disease, and severe and catastrophic wounds that contributed to his mental plights.  She also states the FSM’s injuries made it impossible for him to have a normal life because he was exposed to Agent Orange and nerve gas that affected the children he produced.  

3.  The applicant provides a copy of the FSM’s DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), a copy of his Disability Pension Award from the Veterans Administration (VA), and a two-page letter from the FSM’s uncle.

CONSIDERATION OF EVIDENCE:

1.  The FSM was inducted on 3 November 1966.  He completed basic training at Fort Knox, Kentucky and he was transferred to Hawaii on 30 January 1967 to undergo on-the job training.  He was awarded military occupational specialty 57E (laundry and bath specialist).

2.  On 6 February 1968, he was transferred to Vietnam where he remained until 21 October 1968 when he was transferred to Oakland Army Base, California and was honorably released from active duty (REFRAD) as an overseas returnee.  He had served 1 year, 11 months, and 19 days of active service of which
8 months and 22 days were served in Vietnam.

3.  A review of the available records failed to show any evidence of the FSM being wounded or injured as a result of enemy action.  Additionally, his name is not contained on the Vietnam Casualty Listing and there is no evidence to show that a determination was made indicating that he was unfit to perform his duties.
However, his DD Form 214 shows he was awarded the Purple Heart.

4.  The VA Rating decision provided by the applicant shows the FSM was awarded a 10% disability rating from the VA for a healed ulcer of the right toe, shrapnel wound to the right lower leg, and arthritis of the left foot.  The document provided is undated.

5.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has an impairment rated at least 30-percent disabling.

6.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states disability compensation is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  This regulation also provides for Soldiers to appeal the decisions of the various boards and agencies involved in determining a Soldier's disability ratings.

7.  Title 38, U.S. Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  An award of a VA rating does not establish error or injustice on the part of the Army.  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 affects the individual's employability.

8.  The Army's determination of a Soldier's physical fitness or unfitness is a factual finding based on the individual's ability to perform the duties of his or her grade, rank, or rating.  If the Soldier is found to be physically unfit, a disability rating is awarded by the Army and is permanent in nature.  The Army system requires that the Soldier only be rated as the condition(s) exist(s) at the time of the PEB hearing.  The VA may find a Soldier unfit by reason of a service-connected disability and may even initially assign a higher rating.  The VA's ratings are based on an individual's ability to gain employment as a civilian and may fluctuate within a period of time depending on the changes in the disability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions and supporting documents have been noted; however, based on the available evidence, it appears the FSM was properly REFRAD in accordance with the applicable laws and regulations with no indication of any violations of any of his rights.

2.  The applicant has not provided sufficient evidence to support her contentions regarding the FSM's disabilities and in the absence of evidence to the contrary, it must be presumed that he met medical retention standards and did not have a condition warranting a Medical Evaluation Board/Physical Evaluation Board or entry into the Physical Disability Evaluation System.  

3.  There is no evidence to show he was not properly diagnosed at the time or that his discharge was not conducted in accordance with the applicable laws and regulations then in effect.

4.  Accordingly, there appears to be no basis to grant the applicant's request.

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 the sacrifices made by the FSM in service to the United States during the Vietnam War.  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)                                         AR20130012797



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ABCMR Record of Proceedings (cont)                                         AR20130012797



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