MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           20 March 2001                   
	DOCKET NUMBER:   AR2000045758

	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	
	Mr. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn 		Chairperson	
	Mr. Raymond J. Wagner 		Member	
	Mr. William D. Powers 		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:  Physical disability retirement and two awards of the Purple Heart.

APPLICANT STATES:  That his medical records clearly show that he had surgery on his right leg to repair damage from a gunshot wound.  He also states that he received a shrapnel wound to the head during a mortar attack.

He states that he was taking valium for years because of his anxiety and hyperventilating caused by his experiences in Vietnam.  He states that he was abruptly taken off valium unprofessionally after continuously being on valium for five years.  He states that medical records show that the valium was prescribed for his flash backs and hyperventilating.

He states in effect that he was determined to be ineligible for a security clearance because he was taking valium, and consequently could not remain in the Army; however, he was not medically retired.  He states that his medical records from 1964 until July 1972 are mysteriously missing.  He states that there are no entries except for a refill of librium, a known tranquilizer used to combat anxiety.  However, he was also placed on valium to combat muscle spasms from a gunshot wound received in Vietnam.  He states that his medical records will show that he was taking valium from 1971 to 1977.  He applied for medical retirement; however, his medical records again mysteriously vanished.  He states that he was denied a Secret security clearance by a flight surgeon because of his valium intake, even though that medication had not interfered with his performance for over six years, and not interfered with his ability to make perfect judgments concerning the safety of Army aircraft under his care as a quality control inspector, as evidenced by the battalion safety awards that he received.  

He states that the flight surgeon overrode the opinion of other doctors.  He had only five years remaining until retirement.  The flight surgeon abruptly stopped his medication without any regard for any side effects that might occur.  He makes mention of a manual concerning the dosage procedures concerning valium, stating that the military doctors violated those procedures.  He remained off valium for 59 days, after which another doctor recommended that he remain on valium indefinitely.  The applicant provides notes concerning his medication intake, loss of his medical records, and his visits with doctors, to include psychiatrists.

The applicant provided copies of his correspondence to VA regarding his medical condition, saying among other things, that he was denied the opportunity to reenlist because he was on valium and because he suffered from chronic anxiety and neurosis directly related to the horrors of Vietnam.  He stated that he suffered from pain of his right hamstring caused by a bullet wound received in combat in Vietnam.  He stated that the valium he received for over six years caused a permanent disability in that he was an addict.  In a separate appeal to the VA he requested a higher disability rating than that given for bilateral pterygia, residuals of right hamstring, and post traumatic stress disorder (PTSD). He stated that he had received thorough medical examinations throughout his military service and upon his discharge from the Army.  He has provided documentation verifying his medical disabilities.        

In a 29 April 1996 petition to the VA the applicant questioned the 10 percent disability rating he was receiving for PTSD, stating that since returning from Vietnam, he had a number of problems dealing with people and maintaining meaningful relationships.  He was discharged from the Army basically because of acute anxiety problems relating to his Vietnam service.  He has been treated many times for anxiety, both while in the service and after he was discharged.  He has been married and divorced twice, and his family life has been destroyed. He has held numerous and varied jobs, but has not been able to hold on to any position for any length of time.  He has been convicted twice and sent to prison for a number of years.  He stated that he was once a former soldier of the month and soldier of the year with an outstanding service record.  He stated that he took exception with the VA statement that indicated that actual combat was not documented by official records, stating that he received awards, to include air medals; and medical records show that he had a gunshot wound to his right thigh severing his hamstring.  He was also shot down and his helicopter crashed.  He was listed as missing in action.  He stated that his gunshot wound was treated many times in the Army.  The applicant also took exception with the zero percent rating he received from the VA for residual bilateral pterygia, and the zero percent rating for residual right hamstring severance.  He described the nature of his bullet wound.

EVIDENCE OF RECORD:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board’s consideration of his case on 14 April 1999 (AR1999023722) in which he requested award of the Purple Heart.  Additional information from records available to the Board are as indicated below.

A 5 February 1971 DA Form 3349 (Medical Condition – Physical Profile Record) shows the applicant with a temporary profile for anxiety neurosis, acute, severe, in the “S” block of the PULHES.  The physician indicated that the other blocks were unknown because his health records were not available.

A 20 July 1972 DA Form 3349 shows the applicant with a physical profile serial of 1 1 T-3 1 1 1 because of a painful scar tissue at the site of previous surgery to his right leg.   

A 3 July 1973 clinical record shows that the applicant was treated for pain for his leg from an old gunshot wound.  That record indicated that he had a past gunshot wound to his right thigh in 1967.
A 12 December 1973 clinical record indicates that the applicant had previous episodes of hyperventilation and anxiety attacks and that he was presently on valium.  Valium was prescribed.

Medical records beginning on 1 February 1974 show that the applicant had continually received refills for valium through July 1976 when he was taken off that medication.

A 9 January 1974 clinical record indicates that the applicant was seen because of a “growth before eyes,” hyperventilation and anxiety.  That record indicated that the applicant had a history of a gunshot wound to his head.

The applicant received a temporary profile on 9 January 1974 because of severance of his hamstring to his right thigh.

In a 19 February 1974 report of medical history, which does not show the designation of the examination facility, but does show a 6 November 1976 date, the applicant indicated that he had been treated for nerves, a gunshot wound to the right leg, severing his hamstring, injuries to both legs and feet damaged because of a helicopter crash, and a head injury in Vietnam when a gas tanker exploded, striking him in the head with debris.  He indicated that he was there to apply for disability.  There are no notes from a physician on that report.

A 19 February 1974 health record indicates that the applicant was told that he would have to have a MOS (military occupational specialty) change or medical retirement.  

A 13 January 1975 health record indicates that the applicant had multiple problems including an old gunshot wound, multiple allergies, and so on; and that his current problems were hyperventilation – problems relating to Vietnam, which was fairly well controlled on valium; bilateral pterygia; and hemorrhoids, among others.  A 10 September 1975 health record revealed those same problems, and included a severed right hamstring.  A 9 January 1976 health record also indicated that he had the same problems.  A 6 February 1976 record indicated that his hamstring was severed in 1967, but the profile was lost and his records were incomplete.  An 18 March 1976 health record indicates that he was seen for the previously mentioned problems.

A 7 May 1976 health record indicates that the applicant’s right hamstring was injured in Vietnam.  It also indicated that the valium that he was taking for his spasms prevented a security clearance.  It showed that he was taking valium for spasms and hyperventilation.  The examining physician indicated that valium was not “indicated” in his opinion.  A 21 July 1976 health record indicates that the applicant had been taken off valium.   
A 3 June 1976 report of psychiatric evaluation indicates that the applicant was self-referred because of difficulties getting a security clearance.  That evaluation indicated that the applicant suffered a bullet wound to his right thigh while serving in Vietnam in 1969, and had intermittent muscle spasms requiring more or less constant use of valium.  That evaluation indicates that he had been taking valium and needed to continue taking it; however, he was informed by a flight surgeon that he was ineligible for a security clearance because of Army regulations pertaining to the use of chronic medication.  That evaluation indicates that the psychiatrist stated that the lack of a clearance would prevent his advancement and end his Army career.  He stated that there was no reason on a psychiatric basis that he could see to prohibit his security clearance; however, if there was an Army regulation prohibiting a security clearance in anyone using such medications as valium, he would be unable to change that.  He stated that the applicant’s service record appeared to be excellent and he was well respected as an aircraft technical inspector.  He stated that the applicant had no inappropriate affect or evidence of depressive illness and there were no symptoms to suggest a psychosis or an organic brain syndrome.  

In a 4 June 1976 correspondence to the 22nd Aviation Battalion S-2, the battalion flight surgeon stated that  he had disqualified the applicant for issuance of a security clearance on 13 April 1976 based on his interpretation of an Army regulation.  He stated that the applicant had suffered for several years from a chronic anxiety neurosis, and although he had no psychiatric profile since 1971, he had been on valium on a chronic basis in order to control his anxiety symptoms.  He stated that the applicant had apparently been told to take the valium to relieve chronic leg spasms which he had subsequent to an old gunshot wound.  He stated that it was due to his underlying emotional problem for which the clearance was denied, not simply due to his taking valium.  He stated that the applicant had recently been evaluated by a psychiatrist, and that person indicated that there was no indication of a persisting anxiety neurosis, and that he and the orthopedic specialist had no objection to a trial of several months without the valium; and that if the applicant remained off the medication for a period of several months and demonstrated no evidence of a continuing anxiety neurosis, there would be no objection to his being medically cleared for security purposes.

On 2 July 1976 that same flight surgeon indicated to the applicant’s commanding officer that the applicant’s medical records showed that he was given valium on 27 June 1973 for his leg complaints. He did state that the psychiatrist saw no mental or psychological reason for the applicant to continue to take the valium, and the orthopedist did not feel that it was needed for his leg complaints.  The flight surgeon recommended that the applicant have a two or three month trial off valium.

A 23 July 1976 health record indicates that the applicant expressed his concern about being taken off valium.

In a 30 July 1976 psychiatric evaluation, the examining physician stated that all the historical evidence indicated that the applicant had a chronic anxiety reaction which was significantly helped by taking valium (usually 5 mg), and that the applicant understood that might disqualify him from a security clearance.  The psychiatrist recommended that the applicant be continued on valium indefinitely.

The second page of a report of medical evaluation indicates that the applicant was medically qualified for separation with a physical profile serial of 1 1 1 1 1 1. That report indicates that the applicant was diagnosed as having chronic anxiety, gunshot wound to the right leg – “ortho says ‘no disability, no limitations,’” and pterygia.  In the report of medical history he furnished for the examination, the applicant stated that his health was good.  He indicated that he had been treated for nerves, and a gunshot wound to the right thigh in 1967.

The applicant was discharged on his ETS (effective date of separation) on          5 April 1977.

The applicant provides a copy of a book titled Goodman & Gilman’s The Pharmacological Basis of Therapeutics which indicates the therapeutic uses of benzodiazepines (tranquilizers) and their effects, including adverse psychological effects.  He encloses an article taken from a magazine titled “Benzodiazepines as Anxiolytic Agents: The Risks of Long-Term Treatment.”  That article also indicates that an effect of long term use of benzodiazepines are chiefly psychiatric illnesses, including generalized anxiety disorder and panic disorder and that short term or intermittent use [problems] include acute situational anxiety or distress.  They are also given on a short-term or as needed basis as adjunctive therapy for other psychiatric disorders, such as depression, or as adjunctive therapy of anxiety associated with medical illnesses.
 
In a 29 June 2000 letter a VA official informed the applicant that he should apply to this Board concerning his contention that the prescribing of valium while on active duty led to his discharge.  He was also informed that he was currently service connected for PTSD at 30 percent, bilateral pterygia at zero percent, and residuals, gunshot wound, right hamstrings at zero percent.

In the processing of this case an advisory opinion was obtained from the Medical Advisor to the Army Review Boards Agency.  That official acknowledged that the applicant had been diagnosed with chronic anxiety and was treated by valium on a continuing basis for several years, and the treatment was also continued to alleviate symptoms of an injury to his right thigh.  He stated that there were several notations in the medical record of a gunshot wound, but both the thigh and the head were mentioned as the wound site.  He stated that the applicant underwent a routine ETS physical examination and was found qualified for separation.  There was no permanent profile in his record and there was no evidence that his medical condition resulted in the termination of his military career.  He also stated that the diagnosis of an anxiety disorder, if severe enough would warrant a separation for medical reasons, which did not appear to be applicable in the applicant’s case.  He stated that the VA would assign ratings to any service connected ailment upon application, and the Army physical disability system would rate disabilities that were service incurred or aggravated that would terminate a military career.  That was not the case, and it is apparent that the applicant was able to perform his duties until separation.  In effect, he recommended that the applicant’s request be denied.

In his rebuttal to the advisory opinion, the applicant recounted his military service, stating that he suffered multiple injuries during his second tour of duty in Vietnam, including a gunshot wound severing the hamstring of his right leg, a gunshot wound to the head, chronic anxiety and other medical and mental problems.  He stated that his records show that he had a profile in 1971 which restricted his duty due to severe and acute anxiety neurosis.  He stated that his medical records concerning his injuries had been lost.  He stated that numerous medical records show that the medications librium and valium were prescribed for him; however, the date those medications were prescribed could not be determined because his records had been lost a second time.  In February 1974 he requested medical retirement or an MOS change because of his medical and mental problems, but nothing happened and he was transferred to Alaska.  His disqualification for a security clearance was inappropriate, and his ETS physical examination was incomplete in that it did not list all of his medical problems.  The statement by the flight surgeon that he was in good health and not currently on medication was erroneous.  The facts of his condition were not recorded.  His continued use of valium resulted in his dependence on that drug, and the flight surgeon was fully aware of his constant use of valium and other medications. The applicant stated that the flight surgeon was responsible for his losing his security clearance causing him to be discharged against his will, denying him retirement with full medical and mental assistance benefits, and ignoring his disabilities.  He stated that immediately taking him off valium placed him in a dangerous medical condition.  He stated that the flight surgeon abused his authority and was not qualified to make a determination about his medical condition.  He states that there was not a thorough examination at the time of his discharge to determine if he had a severe anxiety disorder; and questions why he was denied a security clearance if he had no mental disorders.

Army Regulation 600-8-22 provides that the Purple Heart is awarded for a wound sustained as a result of hostile action. Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have required treatment, and the medical treatment must have been made a matter of official record.
Title 10, United States Code, 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.

Army Regulation 40-501 provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.

Army Regulation 635-40, paragraph 3-2b states in pertinent part 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.  

That paragraph goes on to say 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, 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.
  
DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1.  Although various medical records beginning in 1973 refer to the applicant having received a gunshot wound to his right thigh, there is yet no substantiating evidence that shows that he was wounded in action in Vietnam or that the wound was treated.  There is no medical evidence of the treatment of that wound at the time that he was supposedly wounded.  Furthermore, the applicant’s statements concerning his injuries are inconsistent.  He himself has stated that he was wounded in the leg, either in 1967 (as indicated on most medical reports dating 

from 1973) or during his second tour in Vietnam (19 August 1970 – 1 December 1970).  He stated in 1974 that he injured both legs and feet in a helicopter crash.  He stated that he was wounded in the head during his second tour, but also stated that he received a head injury when a gas tanker exploded striking him in the head with debris.  Consequently, the conclusions reached by the 14 April 1999 Board are still relevant.  There is no proof that the applicant was wounded as a result of hostile action and the applicant has not provided any.  He is not entitled to an award of the Purple Heart.  

2.  The applicant’s medical records do show that he did have a temporary medical profile for anxiety neuroses in 1971, and a temporary profile because of pain in right leg in 1972.  His records also show that he was taking valium from  1973 until 1976.  His military records indicate that he continued to perform his duties.  He himself has stated that that the medication that he was taking did not interfere with his performance.  Service medical records do not indicate any medical condition incurred while entitled to receive basic pay which was so severe as to render the applicant medically unfit for retention on active duty.  At the time of the separation physical examination, competent medical authority determined that the applicant was then medically fit for retention or appropriate separation.  Notwithstanding the applicant’s contentions, there is no basis in fact that medical personnel who treated him and evaluated his condition were anything less than competent.  The applicant was separated from active duty for reasons other than physical disability.  

3.  The applicant's continued performance of duty raised a presumption of fitness which he has not overcome by evidence of any unfitting, acute, grave illness or injury concomitant with his separation.

4.  The fact that the VA, in its discretion, has awarded the applicant a disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish physical unfitness for Department of the Army purposes.

5.  The VA, operating under its own policies and regulations, may make a determination that a medical condition warrants compensation.  The VA is not required to determine fitness for duty at the time of separation.  

6.  The award of VA compensation does not mandate disability retirement or separation from the Army.  The VA 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.  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 a member physically unfit before he can be medically retired or separated.  Consequently, due to the two concepts involved, 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.

7.  The applicant did not have any medically unfitting disability which required physical disability processing.  Therefore, there is no basis for physical disability retirement or separation.

8.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.   

9.  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 that requirement.

10.  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

___fne___  ___rjw___  ___wdp_  DENY APPLICATION

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

INDEX

CASE ID	AR2000045758	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010320	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  177	107.00	
2.	108.00	
3.		
4.		
5.		
6.