ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 26 June 2020 DOCKET NUMBER: AR20200005478 APPLICANT REQUESTS: requests reconsideration of his previous request for the medical records of his deceased father, a former service member (FSM), be corrected to reflect the severity of what happened to him and to be more specific about the extent of his injuries and how they actually occurred. As a new request, the applicant request correction of the FSM's record to show his entitlement to disability retirement pay. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * personal statement * previously submitted documents FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120010187 on 19 July 2012, and AR20190009486 on 9 April 2020. 2. The applicant states, in effect: a. Upon review of the ABCMR's recent decision to correct his father's record it is clear some major errors remain in his records that are unjust and dishonorable to a man who volunteered and served America meritoriously with honor during WWII and it is way past time to correct some key errors that began when he was on active duty during WII. If the evidence wasn't so clear it would be understandable why the ABCMR would hesitate to correct his records. The ABCMR fell short of what should be done to correct those records. b. He requested the ABCMR attach a summary of the Peleliu incident to his father's records; however, this was not done. His father incurred a major head injury with explosion concussion to his brain and entire body. The U.S. Army failed to properly document this incident and it was harmful to him in subsequent combat hospitalizations and long after WWII. His father incurred hearing damage and tinnitus brachial neuritis that was the source of paralysis to his arm, fingers and hands years after WWII. Hospital records prove tinnitus brachial neuritis was the source of paralysis to his arm, fingers and hands years after WWII. c. His father also incurred permanent post-traumatic stress disorder (PTSD) with depression as confirmed by the VA Hospital in Dayton. His father's permanent hearing damage and tinnitus was also confirmed by the Dayton VA Hospital and was attributed to WWII combat. His severe brain injury or subdural hematoma was also confirmed by Reid Memorial Hospital. It had not totally healed as the ABCMR Medical Advisory Committee stated. His father also had stomach and bowl trouble he incurred during Combat. In addition to his father's discharge being changed to reflect he was disabled, ABCMR needs to clarify his father was also eligible for disability retirement as the ABCMR referred to the rules governing disability retirement. The applicant does not provide any new evidence. The applicant's complete statement is available for the board's review. 3. The FSM's records are not available to the Board for review. A fire destroyed approximately 18 million service members' records at the National Personnel Records Center in 1973. It is believed that his records were lost or destroyed in that fire. However, there were sufficient documents provided by the applicant for the Board to conduct a fair and impartial review of this case. 4. The FSM's WD AGO Form 53-55 shows he was inducted into the Army of the United States on 21 July 1943, and entered active service in Franklin, OH, on 11 August 1943. This form also shows that at the time of separation, he held military occupational specialty 604 (Light Machine Gunner) and he was assigned to Company C, 323rd Infantry, 81st Division. 5. His WD AGO Form 53-55 also shows he departed the Continental United States (CONUS) on 3 July 1944 and he arrived in the Asiatic Pacific Theater of operations (APT) on 8 July 1944. He departed the APT on 3 December 1945 and arrived back in CONUS on 15 December 1945. 6. He completed 11 months and 14 days of CONUS service and 1 year, 5 months, and 13 days of foreign service. He was honorably discharged on 8 January 1946. The WD AGO Form 53-55 also shows in: * Item 31 (Military Qualifications and Date) - the Combat Infantryman Badge * Item 32 (Battles and Campaigns) - he participated in the Northern Solomon and Southern Philippines campaigns * Item 33 (Decorations and Citations) - Asiatic-Pacific Theater Campaign Ribbon with two bronze service stars, Philippine Liberation Ribbon with one bronze service star, World War II Victory Medal, and Purple Heart * Item 34 (Wounds Received in Action) - the entry "Palau Island 31 October 1944" 7. The FSM died on 20 January 2007. 8. On 29 September 2011, he was issued a DD Form 215 (Correction to DD Form 214- Certificate of Release or Discharge from Active Duty) that added award of the Bronze Star Medal. 9. On 30 January 2020, in support of ABCMR Docket Number AR20190009486, the Army Review Boards Agency (ARBA) medical advisor provided an advisory opinion as it pertains to the determining if the FSM had medical conditions that should have been diagnosed at the time of discharge. The ARBA medical advisor states, in part, the FSM sustained injury due to combat as well as injuries that were incurred in a combat zone. The discharge exam included two conditions that were incurred during military service: Chronic, mild prostatitis and a well healed right leg shrapnel scar. Both were determined to meet retention standards. However, the discharge exam did not completely list all of the veteran’s conditions. To be complete, the discharge exam may have included the following conditions that all appear to have met retention standards: * Right ankle sprain, severe- resolved (combat injury) * Right leg scar (right calf), secondary to shrapnel wound- well healed (combat injury) * Right leg scar, secondary to heating pad burn- well healed (combat zone incurred) * Right leg infection, secondary to heating pad burn- resolved (combat zone incurred) * Functional gastrointestinal condition, intermittent- not currently active (existed prior to service, aggravated in a combat zone) * Appendectomy scar- well healed (existed prior to service, not aggravated in service) * Amebic dysentery (Entamoeba histolytica)- treated (combat zone incurred) * Gastrointestinal parasitic infection (giardia), mild- treated (combat zone incurred) * Brachial neuritis, right arm, moderate to severe- resolved (combat zone incurred) * Chronic, mild prostatitis, organism (gonorrhea)- treated, mild inflammation persists * Mental health diagnosis- see BH report under separate cover 10. The advisory opinion further concludes the Army and the Department of Veterans Affairs have different missions. The Army does not have the authority to compensate for the progression of, nor for complications arising from, service-connected conditions after separation. That authority rests with the Department of Veterans Affairs, which operates under a different set of laws and standards. 11. On 30 January 2020, in support of ABCMR Docket Number AR20190009486, the Army Review Boards Agency (ARBA) clinical Psychologist provided an advisory opinion as it pertains to the determining if the FSM had a behavioral health condition while in-service and whether or not he met medical retention standards at the time of discharge. The ARBA medical advisor states, in part, while the FSM did not meet criteria for PTSD, he meet criteria for Somatic Symptom Disorder. Given the available records, the condition was not responding to interventions and rendered him unfit at the time of separation. 12. In response to the advisory opinions, the applicant submited a 15-page rebuttal where he disagrees with the opinions and states, in part: a. He is convinced the advisory opinions are incomplete, omit numerous documents of record, are filled with major errors and contradictions. There is just reason to question the effectiveness of this process. It is very clear the advisory committee has no clue what has gone on and cannot separate the facts from someone’s uneducated and unfounded opinion. But before this response is over the facts will be magnified beyond denial. Frankly the facts of record and his personal knowledge of the FSM's service to this nation demands the U.S. Army to explain why they tampered with his records, omitted key facts about his service, and clearly treated the FSM inhuman as if he was a rag they could discard at any time. In the face of his meritorious service the U.S. Army should explain why they disregarded their own mottos, codes of conduct, and along with VA, disregard Federal and State Law and U.S. Army and Military rules and ethics. b. While the US Army and VA supposedly have rules and standards, the FSM's case shows they sadly violate those rules and standards at times and even go so far as to commit criminal acts in the process. It is past time for truth and justice and the U.S. Army and the VA to be held accountable for what they did to this meritorious volunteer soldier and veteran in and with his records. c. It is very clear the advisory was prepared by a psychiatrist for it focuses on mental, neurotic, and brachial problems as the FSM endured and after his combat meritorious service. VA stooped so low one time they had a psychiatrist in Northern Ohio call him on the phone to interview the FSM sight unseen so VA could use his report against him and not to help him to develop his claim. This was abnormal and typical of VA’s consistent tactics used against the FSM. It has been his experience most, not all of these mental experts themselves are egotistical and think they are so much smarter than those who do not have their education. These kind of people made many errors and stated false things about the FSM who was suffering badly from the incident at Peleiu. The advisory opinion starts off by getting the date of his entrance exam wrong and contradicting the dates for his entrance examine and period of service. d. The documented facts, the evidence and the law supports the FSM and his son’s appeal and case there is no practical denial or rebuttal to that fact. For starters, according to the second advisory opinion, ABCMR should ignore the law as stated in 38 USC 1132, which states every person employed in the active military, naval or all service, for 6 months or more shall be taken to have been in sound condition when examined and accepted enrolled for service except as to defects, infirmities, or disorders noted at the time of examination acceptance and enrollment or where evidence or medical judgment is such as to warrant a finding that the disease or injury existed before acceptance and enrollment. According to the FSM's entrance exam and prior to the incident at Peleliu, the FSM was in good health. e. The advisory opinion confirmed the FSM and his Company were victims of a terrible friendly fire bombardment attack killing or severely injuring over half of the Company. It is clear the U.S. Army failed to accurately and fully document the incident and dishonored the FSM and those who lost their lives in service of America. Scribbling the word accidental failed miserably to properly record the incident. It is even worse ABCMR has so far failed to correct the FSM's records when they were initially given the evidence and the law requiring them to do so. f. The second advisory opinion focuses on the mental or neurotic aspect of the FSM's appeals and is an example of what took place many times during his appeals. While VA was supposed to assist him in developing his claims, they used illegal tactics to interfere with his due process right to claim and appeal. They used tactics such as concealing his records and blaming his mental symptoms on pre-service events. The FSM did not exhibit any PTSD or mental problems until after he went through the incident at Peleliu on 31 October 1944, and an accurate record of it was not available to those who cared for him after two additional major battles which could have easily explained not only his physical issues but also his mental issues. There is photo evidence to prove it. g. It is against the law to conceal or tamper with a soldier’s or Veteran’s military and medical records; however, that is exactly what VA and U.S. Army did to the FSM. Federal, State, Military and U.S. Army Laws were violated by both VA and U.S. Army over a long period of time. This occurred as recently 2006, when a formal written request was made to VA to produce the FSM's records to assist the Tiger Team in handling his expedited appeal. h. He is not requesting every record be corrected but the account of the incident at Peleliu and a summary of the FSM's combat injuries being attached to his military record and file. It is only just and the legal thing to do and what ABCMR is chartered to do and should have done a long time ago. It needs to be noted the ABCMR sent a letter to the FSM's son on 27 November 2012, acting as if the correction of his records was still possible. ACBMR was told they would be removed from a lawsuit if they correctly corrected the FSM's. 13. On 9 April 2020, the ABCMR granted the applicant partial approval of his previous request for correction of his father's military records and recommended that all Department of the Army records of the individual concerned be corrected by: a. Preparing an appropriate document amending his WD AGO Form 38 (Report of Physical Examination of Enlisted Personnel Prior to Discharge, Release from Active Duty or Retirement) to show the following: • Right ankle sprain, severe – resolved (combat injury) • Right leg scar (right calf), secondary to shrapnel wound – well healed (combat injury) • Right leg scar, secondary to heating pad burn – well healed (combat zone incurred) • Right leg infection, secondary to heating pad burn – resolved (combat zone incurred) • Functional gastrointestinal condition, intermittent – not currently active (existed prior to service, aggravated in a combat zone) • Appendectomy scar – well healed (existed prior to service, not aggravated in service) • Amoebic dysentery (Entamoeba histolytica) – treated (combat zone incurred) • Gastrointestinal parasitic infection (giardia), mild – treated (combat zone incurred) • Brachial neuritis, right arm, moderate to severe – resolved (combat zone incurred) • Chronic, mild prostatitis, organism (gonorrhea) – treated, mild inflammation persists • Psychoneurosis, anxiety state, later changed to anxiety state, moderate (combat zone incurred) • Complaint of head injury – no related treatment or diagnoses documented • Complaint of tinnitus and hearing loss – no related treatment or diagnoses documented b. Issuing a Certificate of Discharge for Disability or equivalent document showing he was discharged due to disability incurred in the line of duty. c. Redacting the word "accidentally" from his 17th Field Hospital Clinical Record mission 3 November 1944). 14. The ARBA medical advisor reviewed the case file to include any new additional evidence and believes the following three conditions merit a more detailed explanation for the conclusions reached in the 30 January 2020 medical advisory opinion: a. Concerning the right ankle, the veteran suffered a severe sprain while in service in 1944. The ankle film was negative for a fracture. At the time of discharge, no abnormalities were noted in the right ankle. In May 1990, more than forty years after the injury, an x-ray to check for degenerative disease was negative. However, by Feb 1992, some degenerative changes were detected as well as soft tissue swelling. In addition, during the 25 Jul 2006 Dayton VAMC C&P Exam by Orthopedics, there was decreased range of motion and tenderness. The ankle condition worsened when the 2006 exam is compared to the discharge exam. Suggested change to the discharge exam list of conditions: * Right ankle sprain, severe – sprain resolved; residual intermittent pain; no physical exam findings (combat injury) b. Head Injury complaint. At age 84, on 29 Jun 2006, the veteran was being evaluated for acute mental status change. During the work up, the veteran was found to have a “Chronic subdural hematoma. This appears not to be new and may not be directly related to his current active problems”. It is important to note that ‘chronic’ in this context only means longer than several days as it relates to being a possible reason for the veteran’s then acute mental status change. There was no indication in the report that medical providers attributed this finding to a head injury due to exposure to explosives or any other cause occurring while in service. Chronic in this context can mean anything from a few days to a few weeks, but it does not infer that the subdural hematoma had been present for decades or was result of a brain injury sustained during military service. Review of the veteran’s treatment records does not establish a direct nexus between the finding of the subdural hematoma on the veteran’s head CT scan in Jun 2006 and a head injury during service over 40 years prior. After military service, the veteran did describe battle events wherein a brain injury was possible, but residuals from such were not detected. A head injury was not reported to the specialist during the 23 Aug 2006 Dayton VAMC C&P Exam; therefore, a complete TBI (traumatic brain injury) exam was not performed by the neurologist at that time. The veteran’s history that was relayed during that exam was that “he was recently diagnosed with brain atrophy and probable Alzheimer’s dementia”. Therefore, the Tiger Team VA Rating Decision did not include a rating for a TBI. But based on available records for review, the veteran may have sustained a head injury, but records are insufficient to definitively diagnose or prove its existence at the time of discharge. In addition, if a head injury was present at discharge, the residuals from such did not appear to be of sufficient severity to fail retention standards. No change is recommended. * Complaint of head injury - no related treatment or diagnoses documented c. Brachial Neuritis. During the 23 Aug 2006 Dayton VAMC C&P Exam by neurology, no motor or sensory deficits were found on examination that day that were consistent with ongoing brachial plexus dysfunction. In the past, the diagnostic work up had included a cervical myelogram which did not show a specific nerve condition. A myelogram uses contrast dye and radiographic imaging (x-rays or CT scans) to diagnose nerve injury. The test is done by radiology specialist. A specific injury to the brachial nerve was not found. Therefore, the neurologist wrote the following as his diagnostic impression: “History of right upper extremity brachial neuritis per medical records, 1945, resolved”. In the 25 Jul 2006 Dayton VAMC C&P Exam by orthopedics, non-localizing pain and tenderness was found in the right arm. Suggested change to the discharge exam list of conditions: * Brachial neuritis, right arm, moderate to severe – neuritis resolved, residual intermittent pain and subjective numbness, no physical exam findings (combat zone incurred) d. The changes in bold above are recommended to acknowledge the veteran’s report of continued symptoms and his son’s observations after discharge from service, as well as to reflect the condition at the time of discharge as documented by the military discharge exam. However, it remains the medical advisor’s opinion that all three conditions met retention standards at the time of discharge. 15. Army Regulation 615-361 (Enlisted Men – Discharge – Medical), in effect at the time, discussed Certificates of Disability for Discharge, which were issued to enlisted Soldiers who were permanently unfit for further military service because of wounds or disease. 16. Prior to 1 October 1949, on which date the Career Compensation Act of 1949, Public Law 351, 81st Congress, became effective, compensation for service-connected disabilities was under the jurisdiction of the VA. This Act vested the administration of payment of disability retirement pay in the Secretary of the Army. 17. Section 61 of Title 10, U.S. Code, amended by Public Law Number 140, dated 30 June 1941, extended disability retirement to Army enlisted Soldiers with 20 or more years of service to be retired for disability. 18. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. 19. The Army rates only conditions determined to be physically unfitting at the time of discharge, which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career. The VA does not have authority or responsibility for determining physical fitness for military service. The VA may compensate the individual for loss of civilian employability. 20. Title 38, USC, Sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a VA rating does not establish an error or injustice on the part of the Army. 21. Title 38, CFR, Part IV is the VA’s schedule for rating disabilities. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge. As a result, the VA, operating under different policies, may award a disability rating where the Army did not find the member to be unfit to perform his duties. Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 22. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents and evidence in the records. The Board considered the applicant’s statement regarding his request that details of the incident at Peleliu and a summary of the FSM's combat injuries be documented in the FSM’s records. The Board found insufficient evidence in the records to justify further documenting the circumstances of the FSM’s military career, as those circumstances are asserted by the applicant. The Board appreciates and considered the applicant’s statement about the FSM’s military career, which is summarized in this Record of Proceedings. The Board advises the applicant that a copy of these proceedings will be placed in the FSM’s records. The Board considered the review and conclusions of the medical advising official regarding three of the FSM’s conditions. The Board considered the previous ABCMR consideration, corrections and the previously rendered medical advisory opinions. At the time of the FSM’s discharge, Army Regulations 615-360 and 615-361 provided that Soldiers with less than 20 years of service who claimed service-connected disabilities were required to seek medical care and / or monetary compensation from the Veterans Administration (VA). Consequently, for Soldiers such as the FSM, compensation for service-connected disabilities was under the jurisdiction of the VA, not the Army. Based on a preponderance of evidence, the Board determined that the applicant’s father was not eligible for military disability retirement at the time of his separation. The Board did however, concur with the amended entries to the FSM’s records as recommended by the ARBA medical advising official. These amended entries are detailed more fully in the Determination / Recommendation portion of this Record of Proceedings. 2. After reviewing the application and all supporting documents, the Board found that partial relief was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by inserting the following statements into the Former Service Members Medical Treatment Records, discharge exam list of conditions: - Right ankle sprain, severe – sprain resolved; residual intermittent pain; no physical exam findings (combat injury), and; - Brachial neuritis, right arm, moderate to severe – neuritis resolved, residual intermittent pain and subjective numbness, no physical exam findings (combat zone incurred) 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to relief other than that stated above. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Army Regulation 615-361 (Enlisted Men – Discharge – Medical), in effect at the time, discussed Certificates of Disability for Discharge, which were issued to enlisted Soldiers who were permanently unfit for further military service because of wounds or disease. 2. Prior to 1 October 1949, on which date the Career Compensation Act of 1949, Public Law 351, 81st Congress, became effective, compensation for service-connected disabilities was under the jurisdiction of the VA. This Act vested the administration of payment of disability retirement pay in the Secretary of the Army. 3. Section 61 of Title 10, U.S. Code, amended by Public Law Number 140, dated 30 June 1941, extended disability retirement to Army enlisted Soldiers with 20 or more years of service to be retired for disability. 4. 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. a. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. b. This regulation defines "physically unfit" as unfitness due to physical disability when 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. The mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability. 5. Title 38 U.S. Code 1110 (General - Basic Entitlement): For disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 6. Title 38 U.S. Code 1131 (Peacetime Disability Compensation - Basic Entitlement): For disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 7. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30 percent. 8. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. //NOTHING FOLLOWS//