PROCEEDINGS

	IN THE CASE OF:        

	BOARD DATE:           8 March 2000                  
	DOCKET NUMBER:   AR1999026207

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Elzey J. Arledge, Jr.		Member	
	Mr. Ernest W. Lutz, 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.  In effect, the applicant requests physical disability retirement, and correction of his DD Form 214 to show the correct awards received. 

3.  The applicant states that he served on active duty from 1966 to 1973, and obtained an early release from active duty in order to enlist in the California Army National Guard; however, he was found to be medically unfit for enlistment because of a hearing loss incurred in Vietnam.  He was denied reenlistment in the Regular Army, transferred to the Reserve Control Group, and subsequently discharged.  He trained as a vocational nurse and was allowed to enlist in the Army Reserve until he was mobilized for Operation Desert Storm.  He remained in the Army Reserve until his transfer to the Retired Reserve in 1993.

4.  The applicant states that prior to Operation Desert Storm he was informed that he was medically unfit for continued service due to a combination of service connected injuries, and injuries incurred while a civilian.  Three days later he was mobilized, received a physical examination and a physical profile serial of            2 2 3 3 2 1.  While awaiting deployment he injured his shoulders, back and neck during training and had a recurrence of the skin condition that he incurred in Vietnam.  During separation processing he was referred for a neurological consultation due to injuries received on active duty; however, due to the nonavailability of a neurologist, he was released from active duty without having undergone that consultation.  The VA did not accomplish the neurological examination until 15 September 1993, after he had retired.  A VA decision in February 1996 found him 20 percent disabled from injuries incurred in Vietnam, and 30 percent for injuries incurred during Operation Desert Storm, for a combined rating of 40 percent.  His ability to perform military duty was also hampered by an additional 53 percent permanent disability incurred as a peace officer.  
 
5.  The applicant states that the Army Commendation Medal, first oak leaf cluster, dated 20 October 1995 should be added to his DD Form 214, as should the Army Reserve Components Achievement Medal, first oak leaf cluster, dated 9 April 1991, and the National Defense Service Medal, M device.  He cites errors on his DD Form 214, in that that form should show award of only 6 overseas bars; and that various awards listed on DA Form 1577 (Authorization for Issuance of Awards) are not included on his DD Form 214.  He also states that his DA Form 1577 contains errors.  The applicant also encloses documents showing the lineage and honors of the 313th MI Battalion and the 404th Army Security Agency Company, units that he states that he served with in Vietnam during the period in which those units received unit awards.

6.  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board’s consideration of his case on    9 January 1985, in which he requested physical disability retirement or separation. 
7.  The applicant’s military records show that he entered on active duty in 1966, served in various locations throughout the world to include Turkey; Berlin, Germany; and three tours of duty in Vietnam.  He was released from active duty in the grade of Sergeant on 7 May 1973 and transferred to a unit in the California Army National Guard.  The order releasing him from active duty shows that his separation was not by reason of physical disability.   

8.  On 23 October 1973 the applicant was transferred to the Army Reserve Control Group (Annual Training) because he did not meet the eligibility criteria for enlistment in the California Army National Guard.  In a 1981 correspondence to the Reserve Personnel Center at St. Louis the applicant indicated that he was unable to fulfill his one year obligation in the Army National Guard in a combat arms position because of a high frequency hearing loss incurred in Vietnam.

9.  In a 1974 letter to a member of congress the Department of Navy Bureau of Medicine and Surgery stated that the applicant did not meet established physical standards for enlistment because of defective auditory acuity, bilateral.

10.  The applicant was promoted to Sergeant First Class on 22 January 1981.  

11.  On 15 January 1984 the applicant requested active duty for training, stating that to the best of his knowledge he was physically qualified for active military duty, and the last time that he was examined was on 7 November 1982.

12.  On 2 December 1985 the applicant was transferred from his Reserve unit in Marina, California to the Army Reserve Control Group (Reinforcement) in St. Louis.  He reenlisted in the Army Reserve for six years on 23 October 1986.

13.  On 29 June 1990 the applicant was awarded the Armed Forces Reserve Medal. 

14.  On 25 January 1991 the Army Reserve Personnel Center informed the applicant that he did not meet the standards for retention in the Army Reserve and/or entry on active duty because of chronic low back pain; and that he had to elect either discharge, transfer to the Retired Reserve, or request a waiver for retention.  There is no evidence that he responded to this notification.

15.  The applicant was ordered to active duty in support of Operation Desert Shield/Storm with a reporting date of 8 February 1991 to Fort Jackson, South Carolina.  A HSC Form 621-R (Individual Medical History) of 9 February 1991 shows that his last physical examination was in July 1989, that he had a physical profile serial of 2 2 3 3 2 1; and that his medical condition showed a herniated disc, hypertension, rotator cuff injury, and chronic low back pain.

16.  A 6 March 1991 report of medical examination shows that the applicant had a small lesion of his hands, hypertension (controlled with medication), low back syndrome, a turning in of his left foot, and a history of sciatica in the left leg for     15 years.  The examining official recommended neurology consultation at a VA hospital.  He was medically qualified for separation.  In the report of medical history he furnished for the examination, the applicant indicated that he had numerous ailments and medical problems.  The examining official indicated that the applicant had a history of low back injury with sciatica of left leg since an explosion in Vietnam in 1970, and had an inward deviation of his left foot since performing physical training 3 weeks ago at Fort Jackson.  He again recommended consultation at a neurology clinic at a VA hospital.  

17.  The applicant was released from active duty at Fort Jackson on                  10 March 1991.  His DD Form 214 (since corrected on 21 February 1992), shows that he was awarded the Army Service Ribbon, two awards of the National Defense Service Medal, two awards of the Army Good Conduct Medal, the Army Achievement Medal, the Bronze Star Medal, the Purple Heart, the Republic of Vietnam Gallantry Cross with Palm Unit Citation (three times, a erroneous duplication on the original DD Form 214, and an erroneous entry on the            21 February 1992 correction), the Republic of Vietnam Civil Actions Honor Medal Unit Citation, the Vietnam Service Medal with 10 service stars, the Army Reserve Components Achievement Medal, the Republic of Vietnam Campaign Medal with 60 device (twice, another duplication), the Army of Occupation Medal (twice, another duplication), the Overseas Service Ribbon (twice, another duplication), the NCO Professional Development Ribbon with numeral 3 (another duplicate entry), qualification badges with the rifle, grenade, and pistol (also duplicated), the overseas service bar – 6, and the overseas service bar – 1 (an obvious error), and the Combat Infantryman Badge.

18.  On 9 April 1991 the applicant was awarded the Army Reserve Components Achievement Medal (first oak leaf cluster).
 
19.  A 4 June 1993 chronological statement of retirement points shows as of       10 March 1993 the applicant had 20 years, 5 months, and 17 days of qualifying service for retired pay at age 60.

20.  The applicant was reassigned to the Retired Reserve on 21 June 1993. 

21.  An 18 August 1993 DA Form 1577 shows that the Army Reserve Personnel Center authorized the Commander of the Army Support Activity in Philadelphia to issue the applicant various awards. 

22.  On 20 October 1995 the applicant was awarded the Army Commendation Medal, first oak leaf cluster.

23.  In a 27 October 1995 decision the VA awarded the applicant a 20 percent service connected disability rating for residuals of injury to the spine with postoperative residuals of cervical spine fusion; a 10 percent disability rating for lumbosacral strain with degenerative changes as residuals of a low back injury; and a 0 percent rating for scar as residual of laceration of the gluteal fold.  That decision also showed a 10 percent rating for tinnitus, a 10 percent rating for skin rash with P.O. bilateral ingrown toenails, a 0 percent rating for right little finger fracture and bilateral hearing loss.  He had a combined rating of 40 percent.  The rating decision indicates that although the applicant’s medical records were negative for evidence of treatment for disabilities of the cervical and lumbar spine and the laceration of the gluteal fold as residuals of an injury to his back that he said occurred in Vietnam, and service connection had been denied, on file was a witness statement from a fellow soldier who served in combat with the applicant. Furthermore, the applicant had been awarded the Purple Heart and the Combat Infantryman Badge.  That decision went on to say that the applicant worked as a correctional officer following his service and suffered injuries to his neck and low back pain in November 1980 as a result of an altercation with an inmate, and that there was considerable records pertaining to treatment for that injury.  One doctor opined that the applicant’s spur formation at L2-3 and L3-4 would indicate that the degenerative process had been present for a considerable period of time prior to the applicant’s injury in November 1980.  The rating board medical specialist agreed with that doctor’s findings and indicated that he would not be able to disassociate the residuals of the in-service injury from the post-service injury that occurred in 1980.  He also stated in effect that he would favor the granting of reasonable doubt in the applicant’s favor, and service connected disability of the cervical spine.  

24.  There is no evidence of record, nor has the applicant provided any, to show his units of assignment during his Vietnam tours of duty.

25.  Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

26.  Army Regulation 635-40, paragraph 3-2b states in pertinent part 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.

27.  That paragraph goes on to say that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

28.  Title 38, United States 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.

CONCLUSIONS:

1.  The evidence of record shows that the applicant was medically qualified for retention or separation in May 1973 with a physical profile serial of 1 2 1 1 2 1.  On the report of medical history a traumatic hearing loss was noted.  A copy of a physical examination, dated 5 June1973, shows that the applicant was medically qualified with a physical profile serial of 1 1 1 3 2 1.  A 16 October 1973 VA rating decision indicates a zero percent rating for bilateral high frequency hearing loss, ingrown toe nail (right and left), skin rash, and residuals of fracture of the right little finger.  This evidence is reflected in the Board’s 9 January 1985 decision on his request for physical disability retirement or separation.  That Board found that the applicant’s medical conditions were not of such severity so as to exceed the medical fitness standards; and, therefore, did not warrant disability processing.  His request was denied.  This Board notes that the VA has awarded the applicant a 40 percent rating for service connected disabilities, based on injuries that he received during his Vietnam service in the 1970’s; however, the evidence also shows, as the VA has noted, that the applicant suffered injuries to his neck and low back on his civilian job in 1980.  The applicant himself stated that he was hampered by a permanent disability incurred as a peace officer.  The 1985 Board has adequately addressed the applicant’s request for physical disability retirement or separation based on his contention of service connected conditions.    
2.  The applicant served on active duty in support of Desert Shield/Storm from     8 February to 10 March 1991.  A 9 February 1991 medical history document clearly shows that the applicant had various medical conditions, i.e., herniated disc, chronic low back pain, hypertension, prior to his order to active duty.  In fact, the Army Reserve Personnel Center had determined that he was medically unfit.  There is no evidence of any action concerning this matter.  However, had the applicant requested discharge or transfer to the Retired Reserve in 1991, he would not have 20 qualifying years of service for retired pay at age 60. 
3.  A report of medical examination clearly shows that the applicant was medically qualified for separation in March 1991, notwithstanding the applicant’s contention that he injured his shoulders, back, and neck, and had a recurrence of a skin condition incurred in Vietnam, while at Fort Jackson.  The only evidence of injury that he incurred while on this active duty tour appeared to be a turning in of his left foot while performing physical training at Fort Jackson.  Nevertheless, at the time of the separation physical examination, competent medical authority determined that the applicant was then medically fit for retention or appropriate separation.  Accordingly, the applicant was separated from active duty for reasons other than physical disability. 

4.  Furthermore, the applicant's continued performance of duty raised a presumption of fitness which he has not overcome by evidence of any unfitting, acute, grave illness or injury concomitant with his separation.

5.  The fact that the VA, in its discretion, has awarded the applicant a disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish physical unfitness for Department of the Army purposes.

6.  The award of VA compensation does not mandate disability retirement or separation from the Army.  The VA, operating under its own policies and regulations, may make a determination that a medical condition warrants compensation.  The VA is not required to determine fitness for duty at the time of separation.  The Army must find a member physically unfit before he can be medically retired or separated.

7.  The VA 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, the applicant'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 him for VA benefits based on an evaluation by that agency.

8.  An award of a VA rating does not establish entitlement to medical retirement or separation.  The VA is not required to find unfitness for duty.  Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected.  Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  This is apparent as shown by the 16 October 1973 VA rating decision awarding the applicant a zero percent rating for various disabilities; and awarding him a combined 40 percent rating for those and other disabilities over 20 years later.  The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.

9. The medical evidence of record  indicates that the applicant was medically fit for retention at the time of his separation in 1973 and again in 1991.  He has submitted no probative medical evidence to the contrary.

10.  The applicant did not have any medically unfitting disability which required physical disability processing.  Therefore, there is no basis for physical disability retirement or separation.

11.  The Board agrees that there are errors on the applicant’s 10 March 1991    DD Form 214 and the 21 February 1992 DD Form 215 correcting the                DD Form 214.  Except for two instances, however,  those errors appear to be of duplication, however, and not of omission.  The applicant was awarded the Army Commendation Medal, 1st oak leaf cluster in 1995, and the Army Reserve Components Achievement Medal in April 1991; however, both of those decorations were awarded after his 10 March 1991 separation.  Consequently, they could not and cannot be included on that separation document.  The applicant was awarded  the Army Reserve Components Achievement Medal,    1st oak leaf cluster, and the Armed Forces Reserve Medal prior to his separation and is authorized to wear the mobilization (“M”) device on the latter medal.  Both of those awards should be shown on his separation document.  

12.  The applicant’s units of assignment during his Vietnam tours cannot be verified.  Consequently, he cannot be awarded the Presidential Unit Citation or any Meritorious Unit Citations.  Furthermore, there is no evidence to show any awards of the Humanitarian Service Medal, or the Army Commendation Medal (notwithstanding the fact that he was awarded the1st oak leaf cluster to that medal in 1995).

13.  The applicant’s DD Form 214 should reflect the following awards, decorations, and badges:  The Purple Heart, Bronze Star Medal, Army Achievement Medal, two awards of the Army Good Conduct Medal, two awards of the National Defense Service Medal, the Army Service Ribbon, the Army of Occupation Medal with Germany clasp, the Overseas Service Ribbon, the Vietnam Service Medal with two silver service stars (denoting participation in    10 campaigns), the Republic of Vietnam Campaign Medal with Device (1960), the NCO Professional Development Ribbon with numeral 3, the Army Reserve Components Achievement Medal with 1st oak leaf cluster, the Armed Forces Reserve Medal with “M” device, the Republic of Vietnam Gallantry Cross with Palm Unit Citation, the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, the Combat Infantryman Badge, the Expert Qualification Badge with rifle bar, the Expert Qualification Badge with grenade bar, the Sharpshooter Qualification Badge with pistol bar, and six overseas service bars.  
14.  Due to the duplication and confusion concerning the applicant’s awards as reflected on his DD Form 214 and the 21 February 1992 DD Form 215, it would be appropriate to issue the applicant a new DD Form 214 reflecting the information on his 10 March 1991 DD Form 214 as changed by his                    21 February 1992 DD Form 215, except for that portion concerning decorations, medals, badges, and campaign ribbons.  The information concerning awards on his new DD Form 214 will reflect only those the awards, decorations, badges, etc., indicated in paragraph 13 above.

15.  A DA Form 1577 is simply a request, in this case, from the Army Reserve Personnel Center in St. Louis, to the Army Support Activity in Philadelphia, for that agency to issue an award, decoration, or badge.  It is not an authorization for an award.  This 1993 request for issue of awards, no matter erroneous, cannot be altered; however, even could it be done, it would accomplish nothing.  Formal recommendation and approval in the chain of command are required for awards. The award must be announced or published in general or permanent orders.  Service and campaign medals, and unit awards, are authorized by virtue of honorable performance of duty within specified limited dates in specified geographical areas.  Unless there is some documentation to show authorization for an award of performance of duty within a unit or in an area, the medal, decoration, or award, is not authorized.  Notwithstanding, the information indicated in the DA Form 1577 provided by the applicant, the only awards authorized the applicant are those contained in the aforementioned        paragraph 13.    
    
16.  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 issuing the applicant a new DD Form 214.  That form will reflect the information contained in his 10 March 1991 DD Form 214 as corrected by his    21 February 1992 DD Form 215, with the exception that that form reflect award of the following decorations, medals, badges, and campaign ribbons, in item 13:  
The Purple Heart, Bronze Star Medal, Army Achievement Medal, two awards of the Army Good Conduct Medal, two awards of the National Defense Service Medal, the Army Service Ribbon, the Army of Occupation Medal with Germany clasp, the Overseas Service Ribbon, the Vietnam Service Medal with two silver service stars, the Republic of Vietnam Campaign Medal with Device (1960), the NCO Professional Development Ribbon with numeral 3, the Army Reserve Components Achievement Medal with 1st oak leaf cluster, the Armed Forces Reserve Medal with “M” device, the Republic of Vietnam Gallantry Cross with Palm Unit Citation, the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, the Combat Infantryman Badge, the Expert Qualification Badge with rifle bar, the Expert Qualification Badge with grenade bar, the Sharpshooter Qualification Badge with pistol bar, and six overseas service bars.

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

BOARD VOTE:  

___eja___  ___ewl__  __rvo___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999026207	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000308	
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.  177	108.00	
2.	107.00	
3.		
4.		
5.		
6.