BOARD DATE: 28 March 2017 DOCKET NUMBER: AR20150016849 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: 28 March 2017 DOCKET NUMBER: AR20150016849 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: 28 March 2017 DOCKET NUMBER: AR20150016849 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, in effect, correction of his record to show he was determined to be unfit by the physical disability evaluation system (PDES) and retired by reason of physical disability. He also requests award of the Purple Heart. 2. The applicant states when he was discharged from active service he did not receive the Purple Heart for an injury he suffered during combat. 3. The applicant provides a self-authored statement, copies of his service and post-service medical records, Department of Veterans Affairs (VA) rating decisions, and miscellaneous correspondence. 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. On 20 and 29 February 1968, the applicant underwent an examination to determine if he was physically qualified for enlistment. On 29 February 1968, a physician determined the applicant was fit for military service. 3. The applicant enlisted in the Regular Army on 29 February 1968. He successfully completed training and he was awarded military occupational specialty MOS 94B (Cook). The evidence shows he served in the Republic of Vietnam from 7 May 1970 to 30 January 1971. 4. He provided a Clinical Record Coversheets dated 1 and 18 January 1971, which show he was diagnosed with an ulcer. 5. On 10 March 1971, the applicant underwent a separation medical examination. The applicant noted, to the best of his knowledge, there had been no change in his medical condition since his previous examination. His official military record contains a Standard Form 88 (Report of Medical Examination), dated 10 March 1971, that shows he was fully qualified for separation. There is no entry showing the applicant received a combat-related wound or injury while serving in Vietnam. 6. On 12 March 1971, the applicant was honorably released from active service. Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) does not show award of the Purple Heart. 7. His record does not contain any evidence of treatment for a combat-related wound or injury while serving in the Republic of Vietnam or at any other time during his active duty service. In addition, item 40 (Wounds) of his DA Form 20 (Enlisted Qualification Record) is blank. 8. During the processing of this case, a member of the Board's staff reviewed the Department of the Army Vietnam casualty roster. The applicant's name is not included on this roster. 9. A review of the Awards and Decorations Computer-Assisted Retrieval System, an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the U.S. Army Human Resources Command Military Awards Branch, failed to reveal any orders awarding him the Purple Heart. 10. On 26 September 1973, the applicant applied to the ABCMR to have his honorable discharge changed to a medical retirement due to receiving a VA rating of 30% for a peptic ulcer. The Board noted the applicant had a number of sick call visits during his service related to gastrointestinal complaints. In January 1971, an Evacuation Hospital in the Republic of Vietnam admitted him for an ulcer and transferred to the Valley Forge Hospital about two weeks later. He was asymptomatic upon arrival at Valley Forge and the hospital sent him on convalescent leave. At the conclusion of this leave he received a separation physical during which there were no significant findings or history observed/ elicited. He was considered to be symptom free and fit for continued military service or appropriate relief from active duty. The consultant staff of The Surgeon General having carefully reviewed the case was of the opinion that the applicant, in accordance with Chapter 3, Army Regulation 40-501 (Standards of Medical Fitness), was medically fit for retention or appropriate separation at the time. 11. On 6 February 1974, after examining and considering the applicant's Army records and the facts he presented, the ABCMR determined that the applicant presented insufficient evidence to indicate probable material error or injustice; accordingly, the Board denied his application. 12. The applicant's records contain a letter penned by the applicant dated 27 November 1990, in which he requested a Purple Heart due to a wound he sustained in the Republic of Vietnam. In the letter he claimed on or about November or December 1970, while attempting to find cover from incoming mortar rounds he was hit by shrapnel in his colon which caused heavy internal bleeding. 13. The applicant provides a VA Form 21-2545 (VA Report of Medical Examination for Disability Evaluation), dated 24 May 1973. The applicant noted saw a psychiatrist for stress and his emotional state. He stated his problem started when he was at Fort Bragg, NC, and his problem became worse when he went to Vietnam because of the added pressure on him to be a leader. Things started to happen to him that he could not believe. Since leaving the Army, he had been taking daily medication to help him adjust to everyday life. 14. He provided a sworn statement from a fellow Soldier who attests that during a mortar attack around September 1970, he and the applicant were on the line to defend the base since they were badly outnumbered. As a number of Soldiers were pushing and shoving, scrambling to get into the bunker, the applicant fell and hit a wooden post on the way into the bunker. He said he was hurt and the next thing the fellow Soldier heard was the applicant had been medically evacuated. 15. He provided a letter from the VA, dated 4 March 2013, granting service-connected compensation for diabetes mellitus type II and hepatitis C. 16. He provided a letter to a Veterans Service Officer, dated 17 September 2015, in which he states he feels the evidence supports a medical discharge since his discharge occurred after a medical injury and psychological injury resulting in an in-service rating of 30% for anxiety neurosis. He further petitioned for a Purple Heart due to his in-service medical injury, which was the result of an enemy rocket and mortar attack. REFERENCES: 1. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the 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 office, grade, rank, or rating. It provides for Medical Evaluation Boards (MEBs) which are 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 chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness). 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. This regulation also states the following: a. Paragraph 3-1 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 3-2b(2) states 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 continued performance of duty 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 3-2b(2)(a) and 3-2b(2)(b) state 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. d. Paragraph 3-5 states the percentage assigned to a medical defect or condition is the disability rating. A rating is not assigned until the Physical Evaluation Board determines the Soldier is physically unfit for duty. Ratings are assigned from the VA Schedule for Rating Disabilities (VASRD). The fact that a Soldier has a condition listed in the VASRD does not equate to a finding of physical unfitness. An unfitting, or ratable condition, is one which renders the Soldier unable to perform the duties of their office, grade, rank, or rating in such a way as to reasonably fulfill the purpose of their employment on active duty. There is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying. 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. 2. Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement. Chapter 3 gives the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required for the individual in paragraph 3-2, below. These medical conditions and physical defects, individually or in combination: * significantly limit or interfere with the Soldier's performance of duties * may compromise or aggravate the Soldier's health or well-being if the Soldier remains in the military; this may involve dependence on certain medications, appliances, severe dietary restrictions, frequent special treatments, or a requirement for frequent clinical monitoring * may compromise the health or well-being of other Soldiers * may prejudice the best interests of the government if the individuals were to remain in the military service 3. 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. 4. Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a higher 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. 5. Army Regulation 600-8-22 (Military Awards) provides that the Purple Heart is awarded for a wound sustained while in action against an enemy or as a result of hostile action. Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record: a. Examples of enemy-related injuries which clearly justify award of the Purple Heart are as follows: injury caused by enemy bullet, shrapnel, or other projectile created by enemy action; injury caused by enemy placed mine or trap; injury caused by enemy released chemical, biological, or nuclear agent; injury caused by vehicle or aircraft accident resulting from enemy fire; and/or concussion injuries caused as a result of enemy generated explosions. b. Examples of injuries or wounds which clearly do not justify award of the Purple Heart include accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action. DISCUSSION: 1. The purpose of the PDES is to maintain an effective and fit military organization with the maximum use of available manpower, provide benefits for eligible Soldiers whose military service terminates because of a service-connected disability, and provide prompt disability processing while protecting the rights and interests of the Army and the Soldier. 2. As such, a Soldier who suffers an injury or an illness while on active duty is retained in the service until he or she has attained maximum hospital benefits and completion of a disability evaluation if otherwise eligible for referral into the disability system. Medical officials are responsible for counseling Soldiers concerning their rights and privileges at each step of the PDES, beginning with the decision of the treating physician to refer the Soldier to an MEB and until final disposition is accomplished. 3. His record does not contain nor has he provided evidence to show he was determined to have a medical condition, which was of such severity that it would have warranted his entry into the PDES. As part of his honorable separation, the evidence of record shows the examining physician indicated the applicant was qualified for service, and his physical profile revealed that he did not have any conditions, which limited his ability to work in his primary MOS or required geographic or assignment limitations. 4. The applicant now believes he should have received a medical retirement for various medical conditions because the VA awarded him a disability rating for his service-connected conditions. However, an award of a rating by another agency, such as the VA, does not establish error on the part of the Army. Operating under different laws and its own policies, the VA does not have the authority or the responsibility for determining medical fitness for military service. The VA may award ratings because of a medical condition related to service (service-connected) that affects the individual's civilian employability. 5. The PDES provides that 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 a physical disability present with the requirements of the duties the Soldier may be reasonably expected to perform based on the Soldier’s office, grade, rank, or rating. 6. A disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and can only be accomplished through the PDES. The applicant appears to have been medically fit at the time of his release from active duty in March 1971 as shown by his separation physical. 7. The criteria for an award of the Purple Heart requires the submission of substantiating evidence to verify that the injury or wound was the result of hostile action, the injury or wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record. 9. The applicant's service in the Republic of Vietnam and his sincerity are not in question. However, his military record does not contain any medical treatment records or other documents showing he was wounded as a result of enemy action or treated for a combat-related wound or injury while serving in Vietnam. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150016849 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150016849 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2