BOARD DATE: 9 February 2017 DOCKET NUMBER: AR20150015216 BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x____ ____x____ ____x___ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 9 February 2017 DOCKET NUMBER: AR20150015216 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. _____________x_____________ CHAIRPERSON 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. BOARD DATE: 9 February 2017 DOCKET NUMBER: AR20150015216 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 18 September 1972 to show he was retired by reason of medical disability. 2. The applicant states at the time of his separation the Army: * failed to find that the physical injuries he sustained in an accident on 6 June 1971 were incurred in the line of duty * failed to find that its own line of duty investigation was in error * failed to find that his mental illness (described later as post-traumatic stress disorder (PTSD)) and high stress levels were factors * failed to find that his physical injuries and mental illness warranted a status of "unfit for continued military service" He served 3 years of active duty in the Army, including combat service in Vietnam and Indo China, followed by 3 years of service in the Army Reserve. 3. The applicant provides an 8-paged self-authored statement with the following documents labeled and organized as: a. Items mentioned in statement: * Department of Veterans Affairs (VA) Form 21-526e (Veteran's Application for Compensation or Pension at Separation from Service), dated 18 September 1972 * VA Form 21-526 (Veterans Application for Compensation or Pension) * PTSD Evaluation, dated 23 February 1984 * VA Administrative Decisions, dated November 1972 and 21 June 1989 * VA Form 21-2545 (Report of Medical Examination for Disability Evaluation), dated 23 February 1984 * VA Form 119 (Report of Contact), 4 June 2001 b. Additional relevant medical documents: * DA Form 3647-1 (Clinical Record Cover Sheet), dated 20 June 1971 * VA Form 21-2545 (Report of Medical Examination for Disability Evaluation), dated 20 January 1990 * VA Compensation and Pension (C&P) Exam Report, dated 1 February 2001 * Orthopedic Examination, dated 24 July 1989 * Social Summary, dated 8 November 1985 * Psychiatric Examination, dated 15 November 1985 c. His VA Rating Decision, dated 28 May 2014 and VA Award Letter, dated 2 June 2014. d. Other related documents: * "Flash" routing slips regarding line of duty issue * PTSD exam, dated 23 January 2001 * Statement of Medical Examination and Duty Status, dated 10 June 1971 * Board of Veteran Appeals (BVA) letter, dated 10 March 1987 * VA line of duty (LOD) determination and findings, 2 November 1987 * VA Rating Decisions, dated 9 September 1986, 19 December 1989, and 16 April 1990 * Report of Investigation LOD and Misconduct Status, dated 14 July 1971 * Investigating Officer (IO) appointment letter, dated 16 July 1971 * DA Form 188 (Extract Copy of Morning Report), dated 14 July 1971 * his request for reconsideration, dated 6 November 1987 * VA Form 21-4138 (Statement in Support of Claim), dated 9 September 1987 CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant enlisted Regular Army on 19 September 1969. He completed his initial entry training and was awarded military occupational specialty (MOS) 67U (Helicopter Mechanic). 3. The applicant served in the Republic of Vietnam from on or about 26 May 1970 through on or about 10 April 1971. 4. A DD Form 261 (Report of Investigation), dated 13 August 1971, shows the applicant was a passenger in a vehicle on 19 June 1971, when he was involved in a head-on collision with another vehicle; a passenger in the other vehicle was fatally injured. The IO stated that both the driver and the applicant were absent without leave (AWOL) at the time of the accident. It was determined that the accident was not in LOD – not due to own misconduct. 5. On 16 August 1971, the IO provided a résumé of LOD, wherein he stated the applicant: * departed AWOL from his unit on 7 June 1971 * was hospitalized as a result of an automobile accident on 19 June 1971 * was transferred to an Army Hospital on 20 June 1971 6. On 28 October 1971, the applicant accepted non-judicial punishment under Article 15, Uniform Code of Military Justice (UCMJ), for being AWOL: * from on or about 1 June through on or about 2 June 1971 * from on or about 7 June through on or about 18 June 1971 * from on or about 16 September through on or about 10 October 1971 7. On 18 September 1972, the applicant was honorably released from active duty due to the phase-down release program and was transferred to the U.S. Army Reserve Control Group (Reinforcement). 8. The applicant's complete service medical records are not available for review; however, there is no evidence in his official military personnel file that indicates he was diagnosed with PTSD during his period of military service. 9. The applicant provides: a. A PTSD Evaluation, dated 23 February 1984, which shows he was diagnosed with PTSD, chronic, moderate and status, post severe accident, with post traumatic pain problems. b. A VA Administrative Decision, dated 21 June 1989, wherein the VA determined the applicant was not AWOL at the time of his automobile accident and his injuries were incurred in the LOD, not due to his own willful misconduct. c. Rating Decision, dated 28 May 2014, which granted him service-connected disability ratings for: * PTSD, 70% from 1 June 2001 * spinal stenosis, manifested by weakness of left planar flexion with secondary neuropathy and degenerative joint disease of the lumbar spine, manifested by sclerosis of the facet joints at L4-5 and L5-S1 secondary to status post fracture, pelvis associated with status post fracture of pelvis, 60% from 20 September 2000 * status post fracture of pelvis, 10% from 18 August 1987 * shortening of right lower extremity by one inch, 0% * fracture, right fifth metacarpal, 0% * status post fracture of mandible, 0% 10. In connection with the processing of this case, an advisory opinion was obtained from the Army Review Board Agency's (ARBA) Senior Medical Advisor. The medical advisory opinion states: a. The applicant is petitioning for medical retirement related to his automobile accident. The applicant states "...discharge was in error or unjust for the following reasons: (1) the Army failed to find at the time of my separation that the physical injuries I sustained in an accident on 6 June 1971 were, in fact, incurred in the line of duty in a combat zone; (2) failed to find that its own line of duty investigation was in error; (3) failed to find that my mental illness (described later as PTSD) and high stress levels judged in 1984 to be "catastrophic" were factors; and (4) failed to find that my physical injuries and mental illness warranted a status of "unfit for continued military service" and that this also warranted a medical separation or medical retirement." VA and military medical records were provided by the applicant in support of the request. b. Brief summary: (1) A review of the applicant's electronic medical record (AHLTA) revealed no record (note: AHLTA implemented starting in 2003). (2) Pre-military service history notes that the applicant dropped out of high school at age 16 to join a rock band, obtained a GED at age 19 and got married at age 19. (3) Report of Medical History (SF88), dated 8 September 1969, with unremarkable clinical evaluation with physical inspection, dated 19 September 1969, with no disqualifying defects or communicable disease were noted this date. Examinee is qualified for induction/enlistment. PULHES-111111. (4) Record of Proceedings under Article 15, UCMJ, dated 25 May 1971, for AWOL from 16 May 71 through 24 May 1971. (5) Alabama Uniform Traffic Accident Report (#37667) with location and time, 19 June 1971, at Goven Abbett Road at Piney Woods Road 1.7 miles south of Alexander City at 7:25 pm. Note: The accident involving the applicant is clearly and unequivocally documented as occurring on Saturday 19 June (not Sunday 6 June). (6) Admission History and Physical Examination (SF 504, SF 505, and SF 506) dated 20 June 1971. Urology (GU) noted dated 20 June 1971 at 6:30 PM with "21 y/o WM involved in MVA between 2->4 am (does not know if he was driving or not). Conscious and coherent. Seen in ER (emergency room) @ Alexander City. There complaining of pain in chest and pelvis." This is followed by notes on the physical examination, Foley catheter in place, etc.... (7) Statement by Accused or Suspect Person (DA 2820), dated 11 August 1971, signed by the applicant under oath: "I was the passenger in the automobile accident, driven by SP4 DBM on 19 June 1971. I do not remember anything about the accident." (8) Witness Statement (DA 2823), dated 11 August 1971, signed by DBM under oath: "The accident happened on 19 June 1971, which was on a Saturday. The applicant was just a passenger in the car and had nothing to do with the accident. He was reading a book before the accident happened. He really didn't even know what happened because it all happened so fast." (9) Report of Investigation - Line of Duty and Misconduct Status, dated 13 August 1971, noting accident at 1925 hours. 19 June 1971, in Alexander City, Alabama with fractured hand, jaw and pelvis. 9c, was not present for duty; 9d. Absent without authority; 9e. Intentional misconduct or neglect was not the proximate cause; 9f. Was mentally sound. 9g.Remarks: "SP4 RWG was a passenger in a civilian car driven by SP4 DBM when it was involved in a head-on collision with another car driven by SLB. SP4 RWG was severely injured. SP4 DBM received only minor bruises and no LOD investigation was required. SLB was not injured. Miss VLO, a passenger in Mr. B's car was fatally injured at the scene of the accident. Both SP4 RWG and SP4 DBM were AWOL at the time of the accident since 7 June 1971. The first degree manslaughter charges and drunken driving charges against DBM have subsequently been reduced to second degree manslaughter. (10) No statement was needed from Mr. SLB to complete the investigation. This is the second LOD Investigation in this particular case. It was first initially investigation by captain (CPT) M (See Exhibit 8). CPT M was not able to satisfactorily complete the investigation prior to his expiration term of service for reasons beyond his control. Subsequently another LOD officer was appointed." (11) Resume of Line of Duty Investigation, dated 16 August 1971, with the following chronology of events: * 7 June 1971, PFC [Applicant] departed AWOL * 19 June 1971, PFC [Applicant] (sic) hospitalized in Russell Hospital, Alexander City, Alabama, as a result of an automobile accident in which he was a passenger * 20 June 1971, PFC [Applicant] transferred to Martin Army Hospital (MAH), Fort Benning, Georgia (12) Extract Copy of Morning Report, dated 14 July 1971 notes that on the morning report ending 2400 7June 1971 REDISTRIBUTION AWOL - Applicant departed AWOL from this station 0730 hours on 7 June 1971. On the morning report ending 2400 13 July 1971 REDISTRIBUTION AWOL, the applicant on 19 June 1971 went from AWOL to admitted Russell Hospital Alexander City AL time not available (NVAL) auto accident LOD unknown (UNK). On the morning report ending 2400 13 July 1971 REDISTRIBUTION, the applicant on 20 June 1971 went from Russell Hospital Alexander City AL to MAH this station. Reviewer note: On 19 June, the applicant was AWOL at the time of the accident and 20 June at MAH he was not AWOL. (13) Clinical Record Cover Sheet (DA 3641) from MAH dated 26 September 1971 (Dropped from Hospital Rolls) notes convalescent leave 19 August - 16 September 1971 (28 days), then 16 September 1971 to AWOL. Item 35 (Cause if Injury) "Al 1925 hrs., 6 Jun 71, Alexander City, Ala., when patient, absent without auth and riding as passenger, was involved in automobile accident." NOTE: This document appears to be the source of the accident date error (accident occurred on 19 June, not 6 June as listed in this medical document closing out his subsequent AWOL from convalescent leave). (14) LOD Determination memorandum dated 7 September 1971 pertaining to injury on 19 June 1971 in Alexander City, Alabama. Final determination is: "Not in line of duty - not due to own misconduct." (15) ABCMR Memorandum of Consideration dated 13 July 1988, Docket number AC86- 05535, not submitted within the time required. (16) VA C&P application dated 18 Sept 1972 for sequela of an auto accident per applicant: "On or about 18 June while a passenger in an auto involved in a wreak [sic]." (17) PTSD Evaluation for the VA dated 23 February 1984 with history of reported traumatic experience in Vietnam documented by the examiner. DSM Ill diagnoses of Axis I- PTSD, chronic, moderate; Axis II - deferred; Axis Ill - status post severe automobile accident with multiple post traumatic pain problems; Axis IV - stress level in military judged to be catastrophic, with long standing life threating periods, episodes of attack and viewing of death and mutilation of close friends, and exposure to a massive explosion thought initial to be atomic in nature; Axis V - Best level of function since discharge from military is fair with good work history but chronic alcohol and substance abuse to severely impaired with transient lifestyle and chronic substance abuse. (18) VA Administrative Decision dated 6 November 1972. Facts: "On June 6, 1971, the veteran was absent without leave and was involved in an automobile accident wherein he sustained back, pelvis, jaw and leg injuries. Conclusion: It is therefore determined that the veterans' injuries sustained were not in the line of duty." (19) VA Administrative Decision dated 21 June 1989. "Issue: Line of Duty Determination: Whether injuries occurred in an automobile accident on June 6 1971, were incurred in the Line of Duty. Conclusion: The evidence clearly shows that the veteran was not absent without leave and he was a passenger in the automobile at the time of the accident which implies no misconduct on the part of the veteran (to conclude otherwise is to engage in pure speculation). Therefore, it can be concluded that his injuries incurred in the automobile accident on June 6 1971, were incurred in the Line of Duty and were not due to his own willful misconduct. This decision vacates and supersedes the decision of November 8, 1972." (20) VA Orthopedic Examination, dated 24 July 1989 with impression of Status post fracture of the pelvis with x-ray evidence of fracture of the pubic rami and diastasis of the sacral ileac joint. Multiple fractures of the right hand with slight malunion of the 5th metacarpal and irregularity of the distal phalanx of the right thumb. Shortening of the right leg 1 inch due to the fracture of the pelvis. (21) VA Psychiatric Examination, dated 20 January 1990 with diagnosis on record: PTSD, reason for examination - application for increase in benefits. "Diagnostic Formulation: This is a 40 year old man who clearly meets the diagnosis of alcohol abuse with possible dependence. In terms of his PTSD he does have a number of symptoms that are synonymous with PTSD but I really could not say that he meet the DSM3R criteria for PTSD disease..." (22) VARD dated 28 May 2014 with service connected PTSD (10% from 26 Sept 1983, 70% from 20 September 2000, 100% from 27 February 2001 (38 CFR 4.29) and 70% from 1 June 2001), Spinal stenosis manifested...(60% from 20 Sept 2000), Status post fracture of pelvis (10% from 18 Aug 1987), shortening of right lower extremity by one inch (0% from 18 Aug 87), Fracture right fifth metacarpal (0% from 18 Aug 87), Status post fracture of mandible (0% from 18 Aug 1987). Not service connected and not subject to compensation: bilateral hearing loss, tinnitus, history of chronic aggressive hepatitis, hepatitis C, residuals of exposures to agent orange (not shown), chloracne, acne, history of depression, crushed shattered chin (original date of denial: 6 February 2004). (23) Limited review of VA records through the Joint Legacy Viewer (JLV) with problem listed diagnoses reviewed. The applicant has 35 problems listed including PTSD, alcohol and polysubstance abuse. c. The applicant met medical retention standards in accordance with chapter 3, Army Regulation 40-501 (Standards of Medical Fitness), and following the provisions set forth in Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) that were applicable to the applicant's era of service from 19 September 1969 through 18 September 1972. The medical condition(s) resulting from the automobile accident were clearly not in the line of duty as noted above. d. The applicant's medical conditions were duly considered during medical separation processing. Special Orders Number 258, dated 14 September 1972, note: Following Individual RELIEVED FROM ACTIVE DUTY not by reason of physical disability and transferred to the United States Army Reserve as indicated. Assigned to U.S. Army Reserve Control Group, Reinforcement effective 22 September 1972. e. A review of the available documentation found no evidence of a medical disability or condition which would support a change to the character or reason for the discharge in this case. f. NOTE: The applicant's DD Form 214 appears to have erroneously tabulated time lost, it should state 7-19 June 1971 (not 7-17 June 1971) as evidenced by the DD Form 261 dated 13 August 1971, the DA Form188 dated 14 July 1971, and the LOD Determination memo dated 7 September 1971. g. NOTE: The factual basis of the VA LOD Determination of the applicant's status was in error. The VA incorrectly utilized 6 June 1971 as the date of the accident, clearly demonstrating error in reviewing prime source documentation of the incident. The accident clearly occurred on 19 June 1971, with the applicant clearly AWOL 7-19 June 1971 as evidenced by the DD Form 261, dated 13 August 1971, the DA Form 188, dated 14 July 1971, and the LOD Determination memo, dated 7 September 1971. 11. The advisory opinion was provided to the applicant to allow him the opportunity to submit comments or a rebuttal. He did not respond. REFERENCES: 1. Army Regulation 40-501 (Standards of Medical Fitness) provides that for an individual to be found unfit by reason of physical disability, he/she must be unable to perform the duties of his office, grade, rank or rating. Performance of duty despite impairment would be considered presumptive evidence of physical fitness. 2. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Physical Disability Evaluation System (PDES) 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 or her office, grade, rank, or rating. It provides for a medical evaluation board that is convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501, chapter 3. 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 service. a. Paragraph 2-1 provides that the mere presence of impairment does not of itself justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade, or rating. The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated. b. Paragraph 2-2b(1) provides that when a member is being processed for separation for reasons other than physical disability (e.g., retirement, resignation, reduction in force, relief from active duty, administrative separation, discharge, etc.), his or her continued performance of duty (until he or she is referred to the PDES for evaluation for separation for reasons indicated above) creates a presumption that the member is fit for duty. Except for a member who was previously found unfit and retained in a limited assignment duty status in accordance with chapter 6 of this regulation, such a member should not be referred to the PDES unless his or her physical defects raise substantial doubt that he or she is fit to continue to perform the duties of his or her office, grade, rank, or rating. c. Paragraph 2-2b(2) provides that when a member is being processed for separation for reasons other than physical disability, the presumption of fitness may be overcome if the evidence establishes that the member, in fact, was physically unable to adequately perform the duties of his or her office, grade, rank, or rating even though he or she was improperly retained in that office, grade, rank, or rating for a period of time and/or acute, grave illness or injury or other deterioration of physical condition that occurred immediately prior to or coincidentally with the member's separation for reasons other than physical disability rendered him or her unfit for further duty. 4. Title 38, U.S. Code, 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. 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 awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. 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. DISCUSSION: 1. The applicant's request for correction of his DD Form 214, to show he was retired by reason of medical disability, was carefully considered. His request is based on the fact that the VA determined his vehicle accident was incurred in the LOD and he was not AWOL at the time of the accident. 2. The evidence of record shows the applicant was AWOL from on or about 7 June through on or about 19 June 1971. On 19 June 1971, he was involved in an automobile accident wherein he sustained back, pelvis, jaw and leg injuries. Subsequently, an LOD determination concluded the applicant was AWOL at the time of the accident and was deemed not in the LOD - not due to own misconduct. 3. Following the applicant's honorable release from active duty by reason of phase-down, he was transferred to the Army Reserve. On 21 June 1989, the VA determined his injuries were incurred on 6 June 1971 instead of 19 June 1971 and were in the LOD. He now contends the Army should have given him a medical separation or retirement. The evidence of record does not support his contentions. 4. A LOD determination by the VA does not establish error by the Army in its investigation. Operating under different laws and their own policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service. 5. There is no evidence of record and the applicant has not submitted any evidence that he had a medical condition that would have warranted him being considered by a Medical Evaluation Board (MEB). Without an MEB, there would have been no basis for referring him to a Physical Evaluation Board (PEB). Without a PEB, the applicant could not have been issued a medical discharge and could not have been retired for physical unfitness. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150015216 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150015216 12 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2