MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            12 April 2000
	DOCKET NUMBER:   AR1999029065

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Ms. Deyon D. Battle		Analyst	

The following members, a quorum, were present:

	Mr. Robert G. Hinkle		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Mr. James P. Steuve		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
            records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That the records of her late husband, a former service member (FSM) be corrected to show that he was placed on the permanent disability retired list (PDRL) at the time of his discharge from the Army.

APPLICANT STATES:  That her husband was severely wounded while he was in Vietnam and he should have gone before a physical evaluation board (PEB) prior to being discharged because he was unfit to continue his military service due to his line-of-duty combat related injuries.  In support of her request she submits a copy of the FSM’s Certificate of Death dated 29 April 1999, a copy of a Clinical Record Cover Sheet which reflects the treatment he received while he was hospitalized in Japan, a copy of a Clinical Record Narrative Summary from Walter Reed General Hospital dated 15 May 1970 and a copy of the VA Rating Decision dated 26 March 1971 awarding the FSM a service-connected disability rating at 100 percent.

EVIDENCE OF RECORD:  The FSM’s military records show:

He was inducted in the Army on 23 January 1969.  He successfully completed his training as a light weapons infantryman and he was transferred to the Republic of Vietnam.

On 7 January 1970, the FSM was wounded by fragments from a hostile exploding booby trap while he was in Vietnam.  He received wounds to the left of his chest, a fracture of the left humerus and a perforated left ventricle at apex.  He also had a possible pulmonary embolism.  He was initially treated for his wounds in Vietnam and he was subsequently evacuated to Japan for treatment.

On 27 March 1970, the FSM was evacuated to Walter Reed Army Medical Center where he underwent surgery and his treatment continued.  The record shows that he was placed on temporary restricted duty.

On 4 May 1970, the applicant was discharged from Walter Reed Army Medical Center and he was transferred to Ft. Meade, Maryland where he was returned to duty as a redeye gunner.  He continued to perform his duties until he was released from active duty and transferred to the USAR Control Group (Annual Training) on 22 January 1971 at the expiration of his term of service.

On 26 March 1971, the VA awarded the FSM a 100 percent service-connected disability rating for fragment wounds to his face, chest, left shoulder, abdomen, laceration of left ventricle and neurosensory hearing loss of the right ear.

Army Regulation 635-40, paragraph 2-2b as amended, provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

Title 38, United States Code, section 310 and 331, permits 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.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The actions by the Army in this case were proper, and there is no doubt to be resolved in favor of the applicant.

2.  The medical evidence of record indicates that the FSM was medically fit for retention at the time of his separation.

3.  Although the applicant was placed on temporary restricted duty as a result of his wounds, his continued performance of duty raised a presumption of fitness which has not been overcome by evidence of any unfitting, acute, grave illness or injury concomitant with his separation.  He underwent surgery after he was wounded in Vietnam and he was properly treated for his wounds.  He was subsequently returned to duty and he performed his duties until he was released from active duty at the expiration of his term of service.  There is no evidence of record to substantiate the applicant’s contention that the FSM met the criteria for evaluation by a PEB or placement on the PDRL.

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

___rgh__  __jps____  ___be___  DENY APPLICATION

						Karl F. Schneider
				     Director, Army Review Boards Agency

INDEX

CASE ID	AR1999029065	
SUFFIX		
RECON		
DATE BOARDED	2000/04/12	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1971/01/22	
DISCHARGE AUTHORITY	AR 635-200, ch 2  (ETS)	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  177	108.0000	
2.  178	108.0100	
3.		
4.		
5.		
6.