MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           2 May 2002                   
	DOCKET NUMBER:   AR2002069810

	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. Fred N. Eichorn		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Christopher J. Prosser		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 records be corrected to show he had 20 years of active service when he was medically retired.

APPLICANT STATES:  That when he was discharged he was promised that he would be retired with 20 years of service.  A 20-year retirement may make him eligible for certain improved disability compensation from the Department of Defense.  He provides two Reports of Transfer or Discharge, DD Forms 214, and his physical evaluation board (PEB) proceedings as supporting evidence.

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

After having had prior service, he reenlisted in the Regular Army in 1957.  He was assigned to Vietnam on or about 13 January 1968 and was assigned to the 4th Battalion, 23d Infantry, 25th Infantry Division as an 11C40 platoon sergeant.

On 30 April 1968, the applicant was wounded in action when a white phosphorus grenade exploded and he sustained extensive facial damage with severe trauma to the right and left eyes, destruction of teeth, deep lacerations, and a fracture of the larynx.  He was medically evacuated to The Surgical Research Unit, Brooke General Hospital around 12 May 1968.  He underwent multiple skin grafts with good results.  His left eye was removed.  Vision in his right eye improved to 20/200.  Plastic surgery was performed on his lower lip defect with good results.  His fractured larynx was left untreated but healed, leaving him with a hoarse voice.  

On 4 September 1968, a medical evaluation board (MEB) noted 23 diagnoses as a result of the applicant’s injuries and recommended he be referred to a PEB as the absence of his left eye made him unfit for further active duty.

On 10 September 1968, an informal PEB found the applicant to be unfit for duty due to third degree burn scars over about 19 percent of his body, impairment of his central visual acuity, disfiguring scars to the head and face, and paralysis of the right internal saphenous nerve and recommended he be permanently retired with a 100 percent disability rating.  The applicant did not apply for continuance on active duty.  On 11 September 1968, he concurred with the findings of the PEB and waived a formal hearing of his case.

The applicant was released from active duty on 29 October 1968 in pay grade   E-7.  He had completed 19 years, 2 months, and 5 days of creditable active service.  

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 a soldier may not be retained or separated solely to increase retirement or separation benefits. Soldiers who are medically unfit and not likely to return to duty should be processed for disability retirement or separation when it is decided that they have attained optimum hospital improvement.

Public Law 106-65, dated 5 October 1999, added section 1413 to Title 10, U. S. Code.  It provides special compensation ($100, $200, or $300 per month if the qualifying service-connected disability is rated as 70 or 80 percent, 90 percent, or 100 percent, respectively) for certain severely disabled retirees.  An eligible member is a retired member who is not retired for disability, is in a retired status, and has 20 or more years of service for purposes of computing retired pay.  The law was later amended to provide this special compensation to delete the requirement to have not been retired for disability.  The amendment took effect on 1 October 2001 and applies to months that begin on or after that date.  No benefit may be paid under this section to any person by reason of the amendment for any period before that date.

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.  It appears that the applicant had obtained optimal hospitalization benefits by the time the PEB convened in September 1968.  His burn injuries had healed to scars, his fractured larynx had healed, his left eye was surgically removed, vision in his right eye improved, and he had some plastic surgery completed.  There is no evidence of record to show he was promised he would retire with 20 years of active duty and his PEB proceedings show that he did not request continuation on active duty.  He was unfit for duty at that time and there were no regulatory provisions for retaining him on active duty an additional 10 months solely to increase any current or future retirement benefits.  

2.  Unfortunately, the timing of the applicant’s injuries appear to have made him ineligible for special compensation under Public Law 106-65, enacted 30 years after he was injured.  

3.  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___  __wtm___  __cjp___  DENY APPLICATION

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

INDEX

CASE ID	AR2002069810	
SUFFIX		
RECON		
DATE BOARDED	20020502	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.