PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:           28 AUGUST 2001                  
	DOCKET NUMBER:   AR2001061004

	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	
	Ms. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone 		Chairperson	
	Mr. Richard T. Dunbar		Member	
	Mr. Donald P. Hupman, Jr.		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 1989 DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to reflect award of the Legion of Merit.  He also asks that a statement be added to his DD Form 214 to indicate that he “was awarded a 20 percent disability as a result of combat action.”  The applicant states that he was awarded a Legion of Merit upon his retirement from active duty in 1989 but the award was omitted from his separation report.  He also states, in effect, that subsequent to this retirement from active duty he was awarded disability compensation by the VA for prostate cancer which the VA attributed to his exposure to Agent Orange during the Vietnam War.  He notes that he needs the statement on his separation document in order to have his military service credited as part of his civilian employment service time.  In support of his request he submits copies of orders awarding him the Legion of Merit and documents from the VA confirming his receipt of disability compensation.

3.  Information available to the Board indicates that the applicant entered active duty in 1966 and served continuously until he retired for length of service in 1989. On 14 February 1989 orders were issued by the Office of the Deputy Chief of Staff for Personnel in Washington, D.C. awarding the applicant a Legion of Merit in recognition of his meritorious service during the period 1 February 1979 through 28 February 1989.  The award, however, was omitted from his DD Form 214.

4.  Subsequent to his retirement the VA awarded him a 100 percent disability rating for “prostate cancer due to Agent Orange Exposure” which was subsequently reduced to 20 percent effective 1 April 2000 when his “records noted improvement in [his] service-connected residuals, radical prostatectomy due to prostate cancer with resultant urinary stress incontinence….”  The original 100 percent rating was effective on 1 December 1999.

5.  Included with the applicant’s petition to the Board was a memorandum from him to the Human Resources Office of the D.C. Public Schools.  In that memorandum the applicant cited a retirement plan for teachers which indicated that "If you served in the armed forces and received an honorable discharge, you can get credited for that time.  However, you may not receive credit for any time for which you receive a military pension, unless that pension is awarded as the result of a disability incurred during combat or certain other activities in the line of duty.”

6.  Army Regulation 635-5 establishes the policies and provisions for the preparation and distribution of the DD Form 214.  It states, in pertinent part, that the DD Form 214 is a summary of a soldier’s most recent period of continuous active duty.  It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge.  The regulation permits a variety of required entries in item 18 (remarks) of the form but does not permit the entry of subsequent disability compensation issues under the jurisdiction of the VA.

7.  Army Regulation 635-40 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 solider 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 the soldier is fit.  The presumption of fitness may be overcome if the evidence establishes that the soldier was, in fact, physically unable to perform adequately the duties of his or her office, grade, rank or rating for a period of time because of disability.  There must be a causative relationship between the less than adequate duty performance and the unfitting medical condition or conditions.  The presumption of fitness may also be overcome by an acute, grave illness or injury or other significant deterioration of the soldier’s physical condition occurring immediately prior to, or coincident with processing for separation or retirement for reasons other than physical disability and which rendered the soldier unfit for further duty. 

8.  Army Regulation 635-40 states that a soldier who is determined to be physically unfit for continued service is eligible for disability retired pay if he has a rating of less than 30 percent and has 20 years of active service for retirement.

9.  Monetary benefits, awarded by the VA, are referred to as disability compensation and are paid to veterans who are disabled by injury or disease incurred or aggravated during active military service.  Monetary benefits are related to the residual effects of the injury or disease and are not subject to federal or state income tax.  The payment of military retirement pay, disability severance pay, and separation incentive payments affect the amount of VA compensation payable.

CONCLUSIONS:

1.  The evidence confirms the applicant was awarded a Legion of Merit for meritorious service prior to his retirement from active duty and his record should be corrected accordingly.

2.  However, the evidence of record indicates that the applicant was physically fit at the time of his retirement by reason of length of service and as such is not receiving military disability retirement pay based on that service.  The fact that he was subsequently awarded VA disability compensation based on prostrate cancer attributed to his exposure to Agent Orange is not a basis to correct his DD Form 214, nor are there any provisions to capture that information on the separation report.

3.  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 showing that the individual concerned was awarded the Legion of Merit.

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

BOARD VOTE:  

__JNS __  __RTD   _  __DPH__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_____John N. Slone ____
		        CHAIRPERSON

INDEX

CASE ID	AR2001061004	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010828	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	107.00	
2.	110.00	
3.		
4.		
5.		
6.