IN THE CASE OF:	  

		BOARD DATE:	  2 July 2014

		DOCKET NUMBER:  AR20130018063 


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 previous request for correction of his record to show he qualified for military retirement with entitlement to all related benefits.

2.  The applicant states the Board failed to consider all evidence submitted with his application.  To wit:  one of the wounds suffered in combat was an open fracture of the left elbow (non-dominate) that has never healed properly and for which he received service-connected compensation from the Department of Veterans Affairs (VA).  Taken together with the other (gunshot) wounds suffered during combat it was and is his position that he is entitled to medical retirement from the U.S. Army.  

3.  The applicant provides a copy of his Abbreviated Clinical Reports.

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 AR20120016761 on 2 April 2013.

2.  The applicant provided copies of his Abbreviated Clinical Reports.  This is new evidence and will be considered by the Board.  


3.  His complete military records are not available to the Board for review.  A fire destroyed approximately 16 million service members’ records at the National Personnel Records Center in 1973.  It is believed his records were destroyed in that fire.  However, there was sufficient documentation contained in a reconstructed record and those provided by the applicant for the Board to conduct a fair and impartial review of this case.

4.  He enlisted in the Regular Army (RA) on 26 July 1950.  He served in military occupational specialty 3835 (inventory adjustment clerk).  

5.  He provided a copy of his Abbreviated Clinical Reports which shows he was wounded in action on 8 August 1952 in North Korea, with shell fragments penetrating both hands, left shoulder, and neck, and he received medical treatment.

6.  A Standard Form 88 (Report of Medical Examination) shows he underwent an examination for the purpose of his separation on 26 October 1953.  The form noted he had sustained shrapnel wounds on both hands and left upper arm with slight adequate extension of the elbow joint.  He was found qualified for separation.

7.  He was honorably discharged on 27 October 1953, under the provisions of Army Regulation 615-360 (Enlisted Men Discharge: Release from Active Duty), at the expiration of his term of service (ETS).  He was credited with completing 3 years of net active service and 1 year and 20 days of other service for a total of 4 years and 20 days of net service with 93 days of time lost.  He was also credited with completing 1 year, 6 months, and 17 days of foreign service.  

8.  A Corporate Award and Rating Data, dated 1 October 1991, shows he was awarded the following service-connected ratings on/for:

* 28 October 1953 – gunshot wound to neck and right thumb (dominant) – 10 percent
* 1 March 1966 – gunshot wound to left elbow with fracture – 20 percent
* 7 November 1986 – gunshot wound, through and through, left upper – 20 percent
* 20 September 1991 – retained shrapnel in right arm (dominant) and degenerative disc disease with post-traumatic degenerative joint disease – 20 percent

* He was subsequently awarded a combined 70 percent service-connected rating 

9.  His available records in void of evidence he served on active duty or was a member of the Reserve Component (RC) for a minimum of 20 qualifying years.

10.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  It states 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 they can no longer continue to reasonably perform because of physical disability incurred or aggravated in service.  It 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 Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  

11.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rated at less than 30 percent.  Section 1212 provides that a member separated under section 1203 is entitled to disability severance pay.

12.  Title 10, U.S. Code, section 3914, provides that a Soldier who has completed 20 but less than 30 years of active Federal service in the U.S. Armed Forces may be retired at his/her request.  The Soldier must have completed all required service obligations at the time of retirement.

13.  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 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 the 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.  

DISCUSSION AND CONCLUSIONS:

1.  The available evidence shows the applicant enlisted in the RA on 26 July 1950.  He was wounded in action on 4 August 1952, sustaining shrapnel wounds to both hands and left upper arm.  He was found qualified for separation and was honorably discharged at his ETS on 27 October 1953.  He was credited with completing a total of 4 years and 20 days of net service.

2.  There is no available evidence and he did not provide sufficient evidence showing he was found unfit to perform his military duties at the time.  The evidence does not sufficiently show his injuries warranted disability processing.  In considering the passage of time and his separation under Army Regulation    615-360, it appears he was properly discharged for his ETS in accordance pertinent regulations with due process. 

3.  Without evidence to the contrary, it appears his separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  There is no evidence he is entitled to an Army medical discharge or medical retirement; therefore, he is not entitled to the requested relief.

4.  With respect to his entitlement to retired pay, the available evidence shows he completed a total of 4 years and 20 day of net active service.  There is no evidence and he provided none showing he completed a minimum of 20 years of active Federal service as a RA Soldier or a minimum of 20 years of qualifying service as an RC Soldier.  Therefore, he is not entitled to military retired pay.  

5.  On 28 October 1953, he was awarded a 10 percent service-connected rating for a gunshot wound to his neck and right thumb.  Years later he was awarded a 70 percent service-connected disability rating based on additional diagnoses made in 1966, and 1986, and 1991.  However, his VA rating does not establish his entitlement to military retired pay.  Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service (i.e., service connected).  In this case, he was properly evaluated and is being compensated for his service-connected medical conditions by the VA.

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 case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20120016761, dated 2 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)                                         AR20130018063



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ABCMR Record of Proceedings (cont)                                         AR20130018063



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