MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           30 November 2000                   
	DOCKET NUMBER:   AR2000045026

	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.

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

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Ms. Celia L. Adolphi		Member	
	Mr. Thomas Lanyi		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 his Physical Evaluation Board Proceedings, DA Form 199, be corrected to reflect that his disability retirement is based on a disability resulting from injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war.

APPLICANT STATES:  That he first dislocated his right shoulder during a parachute jump at Fort Bragg, NC in August 1967.  He had no further shoulder dislocations until he was assigned to Vietnam in 1968 as a rifleman.  He had five additional episodes of right shoulder dislocations.  He recalls that once it dislocated while he was crossing a river and he grabbed for a tree branch while losing his balance.  On another occasion, he dislocated it when he grabbed a tree branch while losing his balance making his way down a steep hill.  It again dislocated when a hand grenade exploded next to his position and again several days later while he was on patrol.  The medics fixed his shoulder in the field each time.  In November 1968, he was medically evacuated for medical evaluation.  In January 1969, he was assigned to Fort Hood, TX and had additional dislocations. In April 1969 he underwent surgery.  After his surgery and recovery, he was released back to his unit and in September 1969 he separated from active duty.  In January 1970, he returned to active duty.  He returned to Vietnam in June 1970 and while there his right shoulder continued to dislocate.  In March 1971, he was medically evacuated, physical disability processing was initiated, and in August 1971 he was retired for physical disability.

EVIDENCE OF RECORD:  The applicant's military records show:

That he enlisted in the Regular Army on 26 October 1966.  He completed basic combat training and advanced individual training and was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  He completed basic airborne training and was awarded special qualification identifier “P” (parachutist).  He was assigned to Fort Bragg, NC on 21 April 1967.

Evidence in the applicant’s medical records show that he was first treated for a dislocated shoulder on 15 August 1967, the injury occurring during a jump. 

The applicant arrived in Vietnam on or about 5 December 1967 and was assigned to Company C, 2d Battalion (Airborne), 506th Infantry as an automatic rifleman and grenadier. 

The actual treatment of his dislocated shoulder by field medics in Vietnam is not in evidence in his medical records but his records contain later entries that indicate he had suffered numerous shoulder dislocations while in Vietnam.  A     9 November 1968 entry notes that the 2d Battalion, 506th Infantry battalion aid station felt the applicant had a legitimate history of shoulder dislocation even though he had only one documented dislocation.  The applicant was an 11B40 and the aid station was afraid to have him continue at his job for fear of his own safety and the safety of his men.  

The applicant was medically evacuated to Fort Devens, MA on 25 November 1968.  He was assigned to Ford Hood, TX on or about 11 January 1969.  He underwent surgery to repair his right shoulder on 29 April 1969.  After several duty status changes of hospital to convalescent leave and back again, he was released to temporarily restricted duty on 15 July 1969.  He was released from active duty on 5 September 1969 after completing 2 years, 10 months and        10 days of creditable active service with no lost time and all conduct and efficiency ratings of “excellent.”  His awards for this period of service included the Air Medal (AM) and the Army Commendation Medal (ARCOM) with “V” device.

The applicant reenlisted in the Regular Army on 16 January 1970 for Warrant Officer Flight Training (WOFT).  He was eliminated from WOFT in March 1970 due to resignation (specific reason unknown) prior to the start of the training.  He was then awarded MOS 11B4P and assigned to Fort Bragg, NC where he performed duties as an 11B4P, team leader.  He was assigned to Vietnam on or about 9 August 1970 where he performed duties as a Supply Sergeant.  He was medically evacuated to Camp Zama, Japan on 25 September 1970.  He returned to Vietnam on 14 November 1970 where he performed duties as an 11B4P, team leader with Headquarters and Headquarters Company, 2d Battalion, 506th Infantry (Airmobile).  He was medically evacuated on 4 March 1971.

On 11 June 1971, a Physical Evaluation Board (PEB) found the applicant unfit for duty for a major impairment of the right humerus with frequent recurrent dislocation of the scapulohumeral joint (30 percent) and paralysis of the right long thoracic nerve with winged scapula deformity (20 percent) for a combined disability rating of 40 percent. The PEB found that his retirement was not based on disability resulting from injury or disease received in line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurred in line of duty during a period of war as defined by law.  He was retired by reason of a permanent disability on 10 August 1971. 

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.  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.  It states in pertinent part that a member whose retirement from the service is based on disability resulting from injury or disease received in line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurred in line of duty during a period of war is entitled to certain special considerations if he subsequently goes to work for the Federal Government.  The disability must have resulted from injury or disease received in line of duty as a direct result of armed conflict and which itself renders the soldier unfit.  A disability may be considered a direct result of armed conflict if it was incurred while the soldier was engaged in armed conflict or in an operation or incident involving armed conflict or the likelihood of armed conflict; if a direct causal relationship exists between the armed conflict or the incident or operation and the disability; or if the disability which is unfitting was caused by an instrumentality of war and was incurred in line of duty during a period of war.  A determination that a disability was caused by an instrumentality of war and incurred in line of duty will be appropriate only when it is also determined that the disability so incurred in itself renders the member physically unfit and was incurred during one of the periods of war as defined by law.

Army Regulation 635-40 also states that prior to the enactment of the Tax Reform Act of 1976, military disability retired pay or disability severance pay was excluded from gross income for Federal tax purposes.  With the passage of the Act, one of two conditions must be satisfied for military disability retired or severance pay to be exempt from Federal taxation.  One of the conditions is that the disability pay was awarded by reason of a combat-related injury.   

Disability compensation is paid by the Department of Veterans Affairs to veterans who are disabled by injury or disease incurred or aggravated during active military service.  The benefits are not subject to federal or state income tax.

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 Board concludes that the applicant was not rendered disabled by an instrumentality of war, i. e., through his initial parachute jump injury to his shoulder.  That injury was treated and he continued to perform his duties.  There is no evidence to show and he does not contend that a later parachute jump reinjured his shoulder.  A determination that a disability was caused by an instrumentality of war would be appropriate only if it was also determined that the disability so incurred in itself rendered him physically unfit.

2.  The Board concludes that there is insufficient evidence to show that the applicant’s unfitness resulted from an injury received in line of duty as a direct result of armed conflict.  His battalion aid station had stated that he had a legitimate history of shoulder dislocations; however only his initial injury was documented.  Of the applicant’s descriptions of how he dislocated his shoulder while in Vietnam, only one – when a hand grenade exploded next to his position – approximates the condition of being a direct result of armed conflict.  Even so, that episode is not confirmed by evidence in his medical records.  There is no evidence to show what caused the dislocations.

3.  If the applicant is drawing VA disability compensation for his shoulder condition, he would be receiving approximately the same tax benefits that would accrue had the requested relief been granted.

4.  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

__jns___  __cla___  __ti____  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000045026	
SUFFIX		
RECON		
DATE BOARDED	20001130	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	108.00	
2.		
3.		
4.		
5.		
6.