PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           6 February 2001                   
	DOCKET NUMBER:   AR2000049568

	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. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Thomas Lanyi		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 separation be changed to a medical discharge.

3.  The applicant states that he was wounded 13 months before his separation and was partially blinded.  When his term of service was up, he was told that he had to wait because he was to have a medical discharge.  He felt that they had already had plenty of time to give him a medical discharge and he requested to be released instead.  He provides no supporting evidence.

4.  The applicant’s military records show that he was inducted into the Army on   5 March 1969.  He completed basic combat training and advanced individual training and was awarded military occupational specialty 11B (Light Weapons Infantryman).  His service medical records are not available.

5.  The applicant arrived in Vietnam on or about 3 August 1969 and was assigned to the 1st Battalion, 52d Infantry, 198th Infantry Brigade as an 11B, rifleman.  He was wounded in action on 11 January 1970.  He received a contusion to the right eye and orbit and fairly extensive internal damage to the right eye.  He was awarded the Purple Heart and on General Orders 933, Headquarters, Americal Division dated 24 January 1970, the Bronze Star Medal for meritorious service.  He was medically evacuated to the Medical Holding Company, Fort Gordon, GA on 21 March 1970.

6.  On 24 April 1970, the applicant departed Fort Gordon, GA for reassignment to L Troop, 3d Squadron, 6th Armored Cavalry Regiment, Fort Meade, MD where he performed duties as an 11B, grenadier.  On 1 September 1970, he received a Letter of Appreciation for the assistance he and the rest of his squadron provided in support of training approximately 5,000 Reserve Office Training Corps cadets.

7.  The applicant’s separation physical examination was initiated on 9 January 1971.  His Report of Medical Examination, SF Form 88, notes that he had a disability of loss of vision in his right eye (20/600 not correctable) but that he signed a waiver for a final evaluation and had filed a claim with the VA.

8.  On 4 March 1971, the applicant was released from active duty upon the expiration of his term of service.  His conduct and efficiency ratings from his last assignment at Fort Meade, MD were “excellent.”  His report of Transfer of Discharge, DD Form 214, does not list the Bronze Star Medal.

9.  Army Regulation 635-40 governs the evaluation for physical fitness of soldiers who may be unfit to perform their military duties because of physical disability.  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.  When 
a soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the soldier is scheduled for separation or retirement, creates a presumption that a soldier is fit.  Application of the rule does not mandate a finding of fit.  The presumption is rebuttable and is overcome when the preponderance of evidence establishes the soldier was physically unable to perform adequately the duties of his or her office, grade or rank.

10.  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.

11.  Army Regulation 600-8-22 provides for the award of the Combat Infantryman Badge to a soldier who is an infantryman satisfactorily performing infantry duties, who is assigned to an infantry unit during such time as the unit is engaged in active ground combat, and must actively participate in such ground combat.

12.  Department of the Army Pamphlet 672-3 shows that the 1st Battalion, 52d Infantry, 198th Infantry Brigade was awarded the Republic of Vietnam Gallantry Cross with Palm for the period 24 August – 31 December 1969.

CONCLUSIONS:

1.  The regulation states that physical disability processing 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.  The evidence of record shows that the applicant, despite his disability, continued to perform his duties as an 11B in an excellent manner throughout the date of his expiration term of service.  The applicant’s service medical records are not available; however, it does not appear that he ever entered the physical disability processing system nor does it appear that he was eligible to enter it due to his continuous demonstration of being fit for duty.  It appears that he just waived the completion of his separation physical examination, not physical disability processing.

2.  Any disability rating the applicant may have received from 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.

3.  The evidence of record shows that the applicant was awarded the Bronze Star Medal and it should be listed on his DD Form 214.  He met the eligibility criteria for award of the Combat Infantryman Badge and he should have been awarded that Badge.  He was also assigned to a unit during a period of time that unit was awarded the Republic of Vietnam Gallantry Cross with Palm and he is entitled to wear that award, also.

4.  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 Combat Infantryman Badge.

2.  That the Bronze Star Medal, the Combat Infantryman Badge, and the Republic of Vietnam Gallantry Cross with Palm be added to his DD Form 214.

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

BOARD VOTE:  

__rvo___  __tm____  __tl____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		Raymond V. O’Connor, Jr.
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000049568	
SUFFIX		
RECON		
DATE BOARDED	20010206	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	108.00	
2.	107.0111	
3.		
4.		
5.		
6.