PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           7 November 2000                   
	DOCKET NUMBER:   AR2000044656

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

	Mr. Carl W. S. Chun		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. George D. Paxson		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Ms. Paula Mokulis		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

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

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that his records be corrected to show he was medically retired.

3.  The applicant states that he is suffering from post traumatic stress disorder (PTSD) and a hearing loss.  His hearing loss started out with a 10 percent rating in 1967 and was increased to 70 percent.  He should have been entitled to a disability retirement.

4.  The applicant’s military records show that he was inducted into the Army on   2 November 1965.  He completed basic combat training and advanced individual training and was awarded military occupational specialty 11B (Light Weapons Infantryman).  He was later awarded military occupational specialty 11D (Armor Intelligence Specialist).

5.  The applicant departed for Vietnam on 20 August 1966.  He was assigned to Troop C, 1st Squadron, 11th Armored Cavalry Regiment where he performed duties as an 11D scout observer/senior scout observer.  General Orders 3616, Headquarters 9th Infantry Division, dated 24 July 1967 awarded the applicant the Army Commendation Medal with “V” device for action on 21 November 1966.  The citation states in part that his convoy was attacked by Viet Cong employing recoilless rifles, rockets, mortars, automatic weapons, and small arms.  The applicant’s vehicle was hit and he was injured but his continued actions contributed significantly to the rout of the Viet Cong.

6.  On 7 December 1966, the applicant was treated for pain in his ears resulting from his being involved in the ambush of 21 November 1966 when he was subjected to blasts from claymore mines and mortars.  On 9 March 1967, he was given a permanent profile for bilateral hearing loss.  On 1 April 1967, he was transferred to the 1st Aviation Brigade where he performed duties as a security guard.

7.  A Clinical Record Consultation Sheet dated 23 June 1967 noted that the applicant would be discharged from the service in August 1967 and stated that he would probably have to be evaluated at Walter Reed General Hospital.  There is no further record of evaluation of his hearing loss.

8.  On 4 August 1967, the applicant was released from active duty early as an overseas returnee.  His Personnel Qualification Record, DA Form 20, shows that his conduct and efficiency, including that during his last assignment as a security guard, were rated as “excellent.”  The Army Commendation Medal with “V” device and the Purple Heart are not listed on the applicant’s report of Transfer or Discharge, DD Form 214.

9.  Effective 29 October 1996, the VA increased the applicant’s disability rating for PTSD from 50 percent to 100 percent.

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 regulation defines “physically unfit” as unfitness due to 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.  In pertinent part, it states 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 they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.

11.  Army Regulation 40-501 governs medical fitness standards for retention and separation.  In pertinent part, it states that trained and experienced personnel will not be categorically disqualified if they are capable of effective performances of duty with a hearing aid.  Most soldiers having a hearing defect can be returned to duty with appropriate assignment limitations.  

12.  The mission of the Veterans Benefits Administration is to provide benefits and services to veterans and their families in a responsive, timely and compassionate manner in recognition of their service to the nation.  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.  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.

13.  Army Regulation 600-8-22 provides policy and criteria concerning individual military decorations.  In pertinent part, it states that the Purple Heart is awarded to any member of an Armed Force who has been wounded or killed in any action against an enemy of the United States.

14.  Department of the Army Pamphlet 672-3 shows that the 11th Armored Cavalry Regiment was awarded the Republic of Vietnam Gallantry Cross with Palm for the period 7 September 1966 – 10 August 1968.

15.  In the processing of this case, an advisory opinion was obtained from the Medical Advisor to the Army Review Boards Agency.  The Medical Advisor recommended that no change be made to the applicant’s discharge.  He noted that there was no evidence to show that the applicant was suffering from PTSD when he was separated.  He also noted that Walter Reed has the Army’s primary Audiology and Hearing Loss Center and this would have been the function of sending the applicant to Walter Reed, not for disability processing.  The applicant rebutted the advisory opinion.  He stated that he has PTSD as a result of his Army service.  His head does not work straight because of the traumatic events he was involved in during Vietnam.

CONCLUSIONS:

1.  The rating action by the VA does not necessarily demonstrate an error or injustice on the part of the Army.  The VA, operating under its own policies and regulation, assigns disability ratings as it sees fit.  The VA is not required by law to determine medical unfitness for further military service in awarding a disability rating, only that a medical condition reduces or impairs the social or industrial adaptability of the individual concerned. 

2.  In order for the applicant to have been eligible for disability processing, he must have been found to be unfit for duty.  The Board does not dispute his contention that he most likely suffers from PTSD due to his service in Vietnam.  However, the evidence of record shows that he was able to perform his assigned duties at all times.  His DA Form 20 shows that his conduct and efficiency were always rated as “excellent.”  There is no evidence to show that he was unfit to perform his duties as a result of PTSD while he was in the service.

3.  The Board notes that there was at least one recommendation that the applicant’s hearing loss be evaluated by Walter Reed General Hospital prior to his separation.  At this late date it is not possible to determine for certain why he was not sent there.  However, disability compensation is not an entitlement acquired by reason of service-incurred injury but is rather provided to soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  He was due to separate within a short period of time.  It is reasonable to presume that the decision was made to allow the applicant to separate rather than tie up military facilities better used to treat soldiers who could be returned to duty.  The VA would then have been the appropriate agency to treat the applicant, which it did.  Also, considering the applicant was awarded only a 10 percent disability rating for his hearing by the VA initially, it is reasonable to presume that he would have been found fit for duty by the Army albeit probably not for continued duty in a combat arms specialty.

4.  The Board does note that the applicant was awarded the Army Commendation Medal with “V” device and that that award is not listed on his DD Form 214.  The evidence of record, as shown by the citation to that award and his medical records, show that he was entitled to award of the Purple Heart.  He was also assigned to a unit during a period of time that unit was awarded the Republic of Vietnam Gallantry Cross with Palm; therefore, he is entitled to that award, also.

5.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by awarding the applicant the Purple Heart for wounds received in action on 21 November 1966.

2.  That the Army Commendation Medal with “V” device, the Purple Heart, and the Republic of Vietnam Gallantry Cross with Palm be added to the applicant’s DD Form 214.  

3.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__gdp___  __mhm__  __pm___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			George D. Paxson
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000044656	
SUFFIX		
RECON		
DATE BOARDED	20001107	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	108.00	
2.		
3.		
4.		
5.		
6.