BOARD DATE:  6 May 2014

		DOCKET NUMBER:  AR20130014151 


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 reconsideration of his earlier request for correction of his military records to show he retired due to physical disability.

2.  The applicant states his request should be reconsidered because the Department of Veterans Affairs (VA) ratings are a direct reflection of his conditions at the time of discharge.  He was admitted to the VA Medical Center (VAMC) 4 months after his discharge for gunshot wounds (GSWs) that he received while in combat.

	a.  The fact that he stated he was in excellent physical condition at the time of his discharge, other than his combat wounds, was the opinion of himself and not a medical opinion.  If he stated it to an examining physician, then he took the applicant's word for it.  He was not aware that within 4 months he would be in severe pain and in the VAMC.

	b.  It is also his contention that post-traumatic stress disorder (PTSD) existed at the time of his discharge, but at that time PTSD was not that well recognized and he is being penalized for that error on the part of the Army.

	c.  He points out that he had a permanent P-3 profile while on active duty; however, his separation physical shows a "picket fence," that is, all "1s."  This is a clear and unmistakable error of the part of the Army and should be corrected.

	e.  He requests a personal appearance before the Board.

3.  The applicant provides a copy of Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120016671, dated 11 April 2013.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20120016671 on 11 April 2013.

2.  The applicant provided a new argument in the form of rebuttal comments to the original Record of Proceedings.  Therefore, his new argument warrants Board consideration.

3.  The original Record of Proceedings stated:

	a.  Following prior enlisted service, he was commissioned as a second lieutenant in the U.S. Army Reserve (USAR) on 7 October 1964 and entered active duty.  He served in Vietnam from 8 October 1965 to 1 July 1966 and was honorably released from active duty (REFRAD) on 28 May 1967.

	b.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)  and DD Form 215 (Correction to DD Form 214) include two awards of the Purple Heart and a Silver Star.

	c.  The applicant's Reports of Medical History, dated 4 September 1963 and 22 July 1964, for enlistment and commissioning indicate he was either in good or excellent condition.  However, his separation report, undated, indicates he was having trouble with his right leg after sustaining a gunshot wound on 23 June 1966.  He stated that otherwise he was in excellent physical condition.  The examining physician determined that he was qualified for separation.

	d.  He provided several VA documents that show the following:

		(1)  On 8 September 1967, he underwent a medical examination for the purpose of a disability claim.  His medical history indicated his complaints were secondary to gunshot and shrapnel wounds.  It stated the applicant provided a history of a recurrent abscess condition between the fourth and fifth toes on the right foot which required surgical excision.  The healing was uneventful and he had no recurrence or residual symptoms.  It also stated he had a gunshot wound to the lower third of the right tibia in June 1966 while in Vietnam.  He sustained a fracture of the lower tibia.  He had a history of a shrapnel wound to the right 


elbow and a back injury in a helicopter crash in Vietnam.  He added the injuries do not give him any difficulties unless he attempts to lift something heavy.

		(2)  On 19 February 2010, the VA provided him a letter in which they explained his service-connected disability ratings from the Vietnam era.  He was granted "Unemployability" from 7 November 2000.  His disability rating and the effective date of that rating are listed as follows:

* PTSD, 30 percent (%) 7 November 2000 increased to 70% 24 April 2003
* Rheumatoid Arthritis and Ankylosing Spondylitis, 60% from 
17 September 1971
* Residuals of Gunshot Wound, Right Lower Leg with Fracture of Tibia, 20% from 1 October 1967
* Scar as Residual of Shell Fragment Wound of Right Elbow, 0% from
1 October 1967
* Trichophytosis of the Feet, 0% from 1 October 1967

	e.  There is no evidence showing that he was physically unfit to perform his duties at the time of his separation.  Further, the evidence of record shows he underwent a separation physical in which he indicated he was having trouble with his right leg after sustaining a gunshot wound, but otherwise he was in excellent physical condition.  He was cleared by the examining physician for separation.

	f.  The applicant implies that since he received a 70 percent disability rating from the VA for PTSD, coupled with his other disability ratings, he should have received a similar rating and a subsequent medical retirement from the Army.  The VA is not required by law to determine medical unfitness for further military service.  The VA 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, the applicant'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 him for VA benefits based on an evaluation by that agency.

4.  His service medical records are not available for review.

5.  His records contain:

	a.  A DA Form 1049 (Personnel Action) dated 21 February 1966 in which he requested a 7-month extension of his active duty.

	b.  A DA Form 78 (Recommendation for Promotion of Officer), dated 14 April 1967, in which he is recommended for promotion to captain.  In the Remarks Section his commander stated, "[Applicant] is an enthusiastic, energetic, capable Infantry Officer." 

6.  An award of a VA rating does not establish entitlement to medical retirement or separation.  Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected.  Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.

7.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 3, provides that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it 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.  To be found unfit by reason of physical disability, individuals must be unable to perform the duties of grade, rank, or rating.

8.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to 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.

9.  Title 10, U.S. Code:

	a.  chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade, or rating because of disability incurred while entitled to basic pay;

	b.  section 1201, provides for the physical disability retirement of a member who has an impairment rated at least 30-percent disabling; and

	c.  section 1203, provides for the physical disability separation of a member who has an impairment rated of less than 30-percent disabling.

10.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) provides Department of the Army policy, criteria, and administrative instructions regarding an applicant's request for the correction of a military record.  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  Paragraph 2-11 states applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  His new argument has been noted; however, it is not sufficient to merit granting the applicant's request.

2.  The applicant's assertion about physical profiles is irrelevant because there is no evidence that at the time of his separation he was unable to perform his duty.  Disability is determined not by profiles or by diagnoses but by evidence that the Soldier is physically incapable of performing assigned duties.

3.  The evidence shows that 3 months prior to his REFRAD, the applicant felt himself to be sufficiently fit to request a 7-month active duty extension, and
1 month prior to his REFRAD his commander stated he was an energetic and capable infantry officer and recommended his promotion to CPT.

4.  In view of the above, the applicant's request should be denied.

5.  The applicant's request for a personal appearance hearing was carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant/counsel is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.



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 to amend the decision of the ABCMR set forth in Docket Number AR20120016671, dated 11 April 2013.



___________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)                                         AR20130012930



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ABCMR Record of Proceedings (cont)                                         AR20130014151



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