ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 16 May 2019 DOCKET NUMBER: AR20160017645 APPLICANT REQUESTS: A medical disability retirement. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * two DD Forms 149 (Application for Correction of Military Record) * U.S. Army Reserve (USAR) Chief Warrant Officer Three (CW3) promotion memorandum * USAR Honorable Discharge Certificate * Department of Veterans Affairs (VA) Rating Decision * DOD Identification (ID) and Privilege Card FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states: a. The reason for his separation was related post-traumatic stress disorder (PTSD) by serving as a flying combat and dust-off pilot in Vietnam from August 1969 to August 1970. He also sustained a back injury as a result of being shot down. He was awarded a service-connected combat Veteran disability rating for the back injury, PTSD, Agent Orange, Tinnitus, and Severe Headaches. b. Had he remained on active duty, he would have assuredly been boarded out for psychiatric reasons or court-martialed. Recently, a fellow veteran (Afghanistan) advised him of the Army policy for redressing the nature of veteran’s discharges. c. He was a career officer at the time of his Army separation. He deeply regretted leaving the military, but under the circumstances it seemed that he had little choice. During his year in Vietnam, he lost 13 aircrafts due to battle damage, evacuated over 2,000 patients (U.S. Vietnamese civilian, Vietnam Soldiers, and a number of wounded a. communist combatants) and flew just under 850 combat hours. During his period of military service, he was awarded the Distinguished Flying Cross, Republic of Vietnam Gallantry Cross/Order of the Palm (individual award), 1 Air Medal (should have been 33 given the hours flown), 1 Air Medal with “V” Device, Vietnam Campaign Medal, and Vietnam Service Medal. d. After Vietnam, he was assigned to the 182nd Aviation Company at Fort Bragg, NC, at the end of 1970. There he was offered and accepted a Cobra transition. He thought at the time that he was surely returning to Vietnam. After receiving the transition, he soon realized that killing people in a “free fire” zone that were not carrying arms or shooting at him was not something that he was capable of doing. Being in the cockpit of a Cobra required that short of mindset. He did not have it and that could make him a danger to the mission and the other pilot that he was flying with. In less than one year in the states, he telephoned branch and requested orders for another tour in Vietnam. He just could not adjust to what he had dreamed of, “being back in the world.” e. Before he completed the Rucker course, his branch telephoned him and told him that they were pulling troops out and were flagging his orders. He told them that he did not want to return to Fort Bragg and asked them to send him somewhere overseas. His orders for Korea were cut. Arriving in Korea, he was able to convince personnel that his 201 file had, in error, indicated attack helicopter qualification. They accepted his explanation. Since, he was medically qualified, he was assigned to the 377th Medical Company. f. Upon his estimated date of return from overseas, in late 1971, he received orders for Fort Lewis, and was assigned to the 116th Assault Helicopter Company. He remained there for a time as an UH-1 pilot and was later assigned to the 3rd Battalion, 5th Cavalry. Upon receiving his notice of impending transfer to Cavalry, he telephoned branch, tendered his resignation, and received a 180 days delayed separation date. As a Cobra pilot, it became clear that it was going to be attack helicopter assignments for the remainder of his career. Attack helicopter pilot qualification had become a critical military occupational specialty (MOS) and this was the reality at the time. g. By the time he arrived at the 3rd Battalion, 5th Cavalry, he had only 72 days remaining of active duty. He advised the commander that he was separating from active duty in less than 3 months. The commander told him that while he was there, he would be earning his flight pay in a Cobra. He told the commander that he was incapable of flying Cobras for psychological reasons and for reasons outlined in Army Regulation (AR) 95-1 (a psychological fear of flying). He finished his last 72 days of active duty in a grounded status and relegated to administrative duties. h. After separating from the Army, he had a difficult time finding and keeping employment. He remained on his last job about 6 months because of the stress, intrusive thoughts of Vietnam, and sleepless nights. He was employed as a trauma a. therapist for 11 years at the Tacoma Veterans Center. Because of his combat related injuries (and issues), he had to medically retire from this job in 1995. Soon afterwards, the VA awarded him permanent and total disability for all of his service-connected injuries. i. He is requesting a medical retirement because there is only one difference between being a 100 percent (%) service-connected veteran and being a medically retired veteran, the ID card. Veterans rated at 100% received the same ID card as a spouse or child of an active duty Soldier or retired service member. They, as a totally/permanently disable veterans took a “slow bullet” in that their conditions were recognized after separation as opposed to being recognized while on active duty and medically boarded out. Maybe it is just him, but to carry a dependent colored ID car is degrading, minimizing his service and a personal affront. He is hopeful that the Department of the Army would also see merit in his request. 3. The applicant provides his: * USAR Promotion Memorandum, dated 26 January 1979, announcing his promotion to CW3 effective 16 June 1978 * USAR Honorable Discharge Certificate discharging him on 16 September 1980 * VA Rating Decision, dated 30 March 2001, awarding service-connection for PTSD (70%), Degenerative Arthritis, Tinnitus, Vascular Headaches, Hemorrhoids, Nasal Congestion, and Earaches * DOD ID and Privilege Card 4. Review of the applicant’s record shows: a. He enlisted in the Regular Army on 4 March 1968. He was honorably discharged on 15 June 1969 to accept a warrant officer (WO) appointment. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he completed 1 year, 2 months, and 28 days of active service. b. He was appointed in the USAR, as a WO One, on 15 June 1969. He remained on active duty. He held MOS 100B (UH-1 Pilot). He was promoted to CW2 on 16 June 1970. c. He served in: * Vietnam from 1 September 1969 to 31 August 1970 * Korea from 14 July 1972 to 10 August 1973 d. He was honorably released from active duty on 28 May 1976 under the provisions of Army Regulation (AR) 635-100 (Personnel Separations – Officer Personnel), chapter 3, Separation Program Designator “MND” (separation for a. miscellaneous/general reasons). He was transferred to the USAR Control Group (Standby). His DD Form 214 (Report of Separation from Active Duty) shows he completed 7 years and 14 days of active service. This form also shows he was awarded or authorized the: * National Defense Service Medal * Army Aviation Badge * Armed Forces Expeditionary Medal * Republic of Vietnam Gallantry Cross with Palm * Vietnam Service Medal * Distinguished Flying Cross * Air Medal with 1 to 34 Oak Leaf Clusters * Vietnam Campaign Medal * two Overseas Service Bars 5. An advisory opinion was received from the Medical Advisor/Psychologist, Army Review Boards Agency, on 23 January 2017, in the processing of this case. The psychologist reviewed the record to determine if the applicant’s military separation warranted a change to medical retirement based on the diagnosis of PTSD. She reiterated the applicant’s period of military service and stated: a. A review of the available records found no evidence the applicant experienced or met criteria for any behavioral health condition while in service. Although he had been diagnosed with PTSD post-service, there was no indication that this condition did not meet medical retention standards at his time of separation. b. VA examinations could confirm diagnoses and determined if medical conditions occurred while on active duty; however, it does not address whether a medical condition met or failed Army retention criteria or if it was a ratable condition during the period of service. No change to the applicant’s reason for discharge is recommended. 6. The applicant was provided with a copy of this advisory opinion for acknowledgement and/or rebuttal. He did not response. 7. By regulation (AR 635-100) non-regular commissioned and warrant officers could be separated from the Active Army for miscellaneous/general reasons. 8. By law, the VA may award ratings because of a medical condition related to service (service-connected) and affects the individual's civilian employability. The findings of the VA as to disability conditions are not binding on the Army and do not require reassessment of earlier determinations. 1. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. Based upon the medical advisory’s finding that although he had been diagnosed with PTSD post-service, there was no indication that this condition did not meet medical retention standards at his time of separation, the Board concluded that there was insufficient evidence to change the narrative reason for separation. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING X X X 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. 5/23/2019 X CHAIRPERSON Signed by: 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 (AR) 635-100 (Personnel Separations – Officer Personnel), chapter 3, in effect at the time, provided the authority for the separation of non-regular commissioned and warrant officers from the Active Army, under Separation Program Designator “MND” for miscellaneous/general reasons. 2. AR 40-501 (Standards of Medical Fitness), governs medical fitness standards for enlistment, induction, appointment, retention, and separation (including retirement). Once a determination of physical unfitness is made, the PEB rates all disabilities using the VASRD. Ratings can range from 0% to 100%, rising in increments of 10%. 3. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24B, prescribes policy and implements the requirements of chapter 61 (Retirement or Separation for Physical Disability) of Title 10, U.S. Code (USC). The regulation states: a. 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. 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. b. Based upon the requirements of section 1203 of chapter 61, Title 10, USC, states Soldiers, not otherwise eligible for military retirement, with a disability not the result of intentional misconduct or willful neglect, and with less than a 30 percent disability rating, will receive severance pay. c. The VA Schedule for Rating Disabilities (VASRD) is primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. Because of differences between Army and VA applications of rating policies, differences in ratings may result. Unlike the VA, the Army must first determine whether or not a Soldier is fit to reasonably perform the duties of his office, grade, rank, or rating. Once a Soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VASRD. These percentages are applied based on the severity of the condition at the time of separation. 4. Title 38, USC, sections 1110 and 1131, 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 1. 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.