IN THE CASE OF: BOARD DATE: 12 July 2021 DOCKET NUMBER: AR20210007074 APPLICANT REQUESTS: in effect, reconsideration of his prior request for physical disability discharge and/or correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to reflect he was injured in Vietnam. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Reynolds Army Hospital, Ear Nose and Throat (ENT) Clinic Medical Examination, dated 18 November 1965 * Standard Form 513 (Consultation Sheet), dated 8 July 1968 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 AC82-08157 on 22 September 1982. 2. The applicant states: a. His military discharge records should reflect that he was injured while in Vietnam. He is visually impaired, so he did not see this error on his discharge records, but rather his daughter found it. b. His medical examination dated 18 November 1965, reflecting an audio examination prior to going to Vietnam, shows he was given a physical profile rating of “2” for hearing, with no limitations. The Consultation Sheet, dated 8 July 1968, indicates his physical profile rating was increased to “3” for hearing, with limitations. 3. A Standard Form 88 (Report of Medical Examination), dated 6 August 1965, shows the applicant underwent medical examination on the date of the form for the purpose of enlistment. Item 74 (Summary of Defects and Diagnoses) lists impairment of hearing, right ear. The applicant was found qualified for enlistment with a physical profile rating of “2” for hearing (H2). 4. The applicant enlisted in the Regular Army on 9 August 1965. 5. A Reynolds Army Hospital, ENT Clinic Medical Examination, dated 18 November 1965, shows the following: a. The applicant was noted to have a hearing loss since the age of 8. He reportedly sustained trauma to the head at the age of 5 and had both measles and mumps during childhood. The hearing loss had not been increasing. b. It was noted there was no treatment for the type of hearing loss the applicant had. It was recommended he avoid acoustic trauma to the remaining left ear. His diagnosis was neurosensory hearing loss in the right ear secondary to trauma or possible viral etiology since childhood. It was not found to have been incurred in the line of duty (LOD) and was found to have existed prior to service (EPTS). c. His physical profile rating was “H2”, with no duty limitations and he was found qualified for continuation on active duty under the provisions of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, requiring no further processing. 6. The applicant’s DA Form 20 (Enlisted Qualification Record) shows the following: * in item 31 (Foreign Service), service in Vietnam from 18 February 1966 through 17 February 1967 * in item 40 (Wounds), is blank 7. The applicant's name is not shown on the Department of the Army Office of the Adjutant General Casualty Division Casualty Reference Name Listing for the period 1 January 1961 through 30 June 1973, a battle and non-battle listing of Soldiers who were killed, wounded, sick, captured, or missing during their service in Vietnam. 8. The applicant provided a Standard Form 513, dated 8 July 1968, wherein a request for consultation of the ENT Clinic was made for evaluation of audio. The form shows: a. Examination revealed the ear canals and drums to be within normal limits bilaterally and there was no fluid present within the middle ear space. An audiogram revealed essentially a complete loss of hearing in the right ear with a 75 decibel average for speech by pure tone audiometry and a 95 decibel dip at the 4000 frequency. There was no hearing response in the right ear on voice test with mask. b. The applicant’s diagnoses were sensory neural hearing loss, right ear, marked, probably secondary to trauma or viral etiology in childhood; LOD: no; EPTS and sensory neural hearing loss, left ear, secondary to acoustic trauma; LOD: yes. It was noted there was no treatment for this type of hearing loss. c. His physical profile rating was “H3” permanent with duty limitations, but he was qualified for continuation of active duty or REFRAD. He should avoid acoustic trauma to the remaining good ear. 9. The applicant’s REFRAD Physical, likewise dated 8 July 1968, shows verbatim what the above-referenced Standard Form 513 shows. 10. A Standard Form 93 (Report of Medical History), dated 8 August 1968, shows the applicant underwent medical examination on the date of the form for the purpose of release from active duty (REFRAD). The applicant indicated on the form he had a history of hearing troubles, including hearing loss since birth. 11. A Standard Form 88, dated 8 August 1968, shows the applicant was found qualified for REFRAD with a physical profile rating of “H3”. 12. The applicant’s records contain an Auditory Acuity Examination, dated 25 July 1968, with handwritten notes stating no hearing in right ear on voice test, EPTS, H3 permanent physical profile. 13. A DA Form 1811 (Physical and Mental Status on Release from Active Service), dated 8 August 1968, shows the applicant’s physical condition was such that he was considered physically qualified for separation or reenlistment without reexamination provided he reenlisted within 90 days and stated he had not acquired new diseases or injuries in the interim. His physical profile rating is listed as “1” in all categories aside from “2” for hearing. 14. The applicant’s DD Form 214 shows he was honorably REFRAD on 8 August 1968 and transferred to the USAR Control Group (Reinforcement) due to expiration term of service (ETS). He was credited with 3 years net active service this period, of which 1 year was foreign and/or sea service in Vietnam. 15. Office of the Adjutant General, USAR Personnel and Administration Center Letter Orders Number 07-1139934, dated 28 July 1971, honorably discharged the applicant from the USAR Control Group (Standby) effective 8 August 1971, due to ETS. 16. The applicant previously applied to the ABCMR, requesting correction of his records to reflect service-connected disability. On 22 September 1982, the Board denied the applicant’s request, determining the available evidence did not demonstrate the existence of a probable material error or injustice. 17. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the previous ABCMR denial (4 September 2019; AR20170015060), the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: a. The applicant has applied to the ABCMR requesting that his “military discharge records to reflect that he was injured in Vietnam”, so in essence, he is requesting a referral to the Disability Evaluation System. He states that his hearing profile serial went from a 2 to a 3 during his service. b. The Record of Proceedings details the applicant’s military service and the circumstances of the case. His discharge orders show he was honorably discharged from the USAR on 8 August 1971 at the expiration of his term of service. Part II of his Personnel Qualification Record (DA Form 2-1) shows service in Vietnam from 18 February 1966 thru 17 February 1967. His DD 214 shows he received the Vietnam Service Medal with a bronze service star. c. On 18 November 1965, the applicant underwent a pre-entrance audiological evaluation for a history of hearing loss since age 8. The exam found normal healing in the left ear and significant hearing loss in the right ear. He was place on an H2 hearing profile with “no duty limitations” while being instructed to “Avoid acoustic trauma to the remaining left ear.” d. On his pre-separation audiological evaluation completed 8 July 1968, the audiologist documented “essentially a complete loss of hearing in the right ear” with mild to moderate hearing loss in the left ear. The progression of his hearing loss in both ears was acoustic trauma. His hearing profile was changed from an H2 to an H3. e. His service records do indeed document service incurred hearing loss, but there is no evidence the applicant’s hearing loss or other any medical condition which would have failed the medical retention standards of chapter 3, AR 40-501 prior to his discharge. Thus, there was no cause for referral to the Disability Evaluation System. Furthermore, there is no evidence that any medical condition prevented the applicant from being able to reasonably perform the duties of his office, grade, rank, or rating prior to his discharge. f. Review of his records in JLV shows he has been awarded multiple VA service connected disability ratings. While the applicant has these service connected disabilities, the DES has neither the role nor the authority to compensate service members for anticipated future severity or potential complications of conditions which were incurred or permanently aggravated during their military service; or which did not cause or contribute to the termination of their military career. That role and authority is granted by Congress to the Department of Veterans Affairs and executed under a different set of laws. g. It is the opinion of the ARBA medical advisor that neither a modification of his military records nor a referral to the Disability Evaluation System is warranted. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined relief was not warranted. Based upon the available documentation and the findings and recommendation of the medical advisor, the Board concluded there was insufficient evidence of an error or injustice which would warrant a change to the applicant’s record. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XX :XXX :XXX DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 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 600-200 (Enlisted Personnel Management System), in effect at the time, stated a brief description of wounds or injuries (including injury from gas) requiring medical treatment received through hostile or enemy action, including those requiring hospitalization, would be entered in item 40 (Wounds) of the DA Form 20 (Enlisted Qualification Record). This regulation further stated the date the wound or injury occurred would also be entered in item 40. 2. Army Regulation 635-5 (Separation Documents), in effect at the time, prescribed the separation documents that must be prepared for Soldiers upon retirement, discharge, or release from active duty service or control of the Active Army. a. It established standardized policy for preparing and distributing the DD Form 214 (Certificate of Release or Discharge from Active Duty). The general instructions state all available records would be used as a basis for preparation of the DD Form 214. b. The instructions for item 30 (Remarks) state to use this section to complete entries too long for their respective blocks. For Enlisted personnel, the following are some of the many possible entries to be made when applicable: * blood group * if retained in service beyond the date of expiration of his term of service * lost time * enter all separations and immediate enlistment or reenlistments accomplished * if the cause for separation is a physical disqualification for which he will receive severance pay, enter amount paid; if separated for physical disability for which he is not entitled to severance pay, enter “Severance pay not authorized” * injury or wounds is not one of the listed entries 3. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency is responsible for administering the Army physical disability evaluation system and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in an MEB; when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an MOS Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. b. The disability evaluation assessment process involves two distinct stages: the MEB and PEB. The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability either are separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. c. The mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 4. Army Regulation 635-40 establishes the Army Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. 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. a. Paragraph 3-2 states 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 who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. b. Paragraph 3-4 states Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: (1) The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. (2) The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. 5. 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 of less than 30 percent. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210007074 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1