ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 9 August 2019 DOCKET NUMBER: AR20190003037 APPLICANT REQUESTS: a medical retirement. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Personal Statement * Purple Heart Certificate * Map * DD Form 215 (Correction to DD Form 214 (Certificate of Release or Discharge from Active Duty)) * DD Form 214 * Calendar * Medical documents * DA Form 20 (Enlisted Qualification Record) * Department of Veterans Affairs (VA) Records * Information on hepatitis 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, in part: a. His reason for discharge is incorrect. At the time of his discharge, he had a total combined disability rating of 40 percent due to being wounded in action by a gunshot wound to the abdomen by enemy fire in Vietnam. He received a Purple Heart for the incident. He was denied CRSC because he was not in a retired status. He was unaware his discharge didn’t include medical disability listed among the reasons for separation, which is technically considered retired. b. He was shot in the abdomen by a North Vietnamese AK47 and hospitalized for total of 107 days before being discharged. The incident took place in the valley between Hills 996 and 937 in the A Shau Valley, Thua Thien Provence, I Corps Tactical Zone, Vietnam. He was dragged through the dense jungle for nearly 2 km to a landing zone, where he awaited a medical evacuation chopper. He was evacuated to the 22nd Surgical Hospital in Vietnam and stabilized over the next 8 days. c. On 29 July 1969, he was transported to the 95th Evacuation Hospital in Vietnam. They noted the wound had become grossly infected/abscessed. He was treated for 2 days. On 31 July 1969, still in need of surgery to repair this injury, he was then transported to the 249th General Hospital in Japan. He had massive hemorrhaging and received multiple blood transfusions (which resulted in the contraction of Hepatitis B & C and would later cause him to have a liver transplant). He was treated in this facility for 22 days. On 22 August 1969, he was transferred to Madigan Army Medical Center at Fort Lewis, WA. He spent 75 days being treated for his combat injury. On 7 November 1969, he was relieved from assignment to 3rd Armored Cavalry Regiment/Troop K 3rd Squadron at Fort Lewis and assigned to K Troop 3/3 AC (WG2N- KO). He was on limited duty and given a medical paper/pass that prohibited him from being ordered to run, jump, bend, stoop, carry weight, etc. due his injuries. He was unable to perform his duties. d. He was honorably discharged on 18 June 1970. Within 1 year of discharge, he applied for VA disability compensation and was awarded a total combined disability rating of 40 percent effective 19 June 1970. According to Department of Defense (DOD) Disability for Medical Retirements, if the service member is given a Total Combined Military Disability Rating of 30 percent or higher, he is medically retired from the military. When a service member is medically retired, he receives all the benefits of a service member who retired regularly from the military, including complete medical care, and a monthly disability/retirement payment for the rest of his life. Furthermore, he should have been placed on the Permanent Disability Retired List (PDRL), according to DOD. e. He believes his military career was cut short by reason of a physical injury/disability, which caused him to be unfit for duty. The "Report of Medical History" completed for reason of separation on 25 May 1970, says "I'm bothered by left leg and hip when I have to walk or stand for long time." As mentioned earlier, he could not run, jump, bend, stoop, carry weight, etc. due to his injuries incurred in service while still on active duty. He was unfit to perform my duties. He did not receive a full and fair hearing to determine my physical fitness for continued military service after my combat injury, to determine a possible level and type of compensation, and take action to retire him because my military career was interrupted by reason of physical disability. He didn't know a process like that existed, or he would have asked to be evaluated. He was also never notified about the possibility of the process of medical separation by the Medical Evaluation Board or the Physical Evaluation Board (MEB/PEB). Both of these facts violates governing regulations. f. He is currently rated 100 percent totally and permanently disabled due to service- connected injuries/ailments. He has never recovered from his combat wounds; in fact, things only got worse, especially when the Hepatitis B and C caused him to need a liver transplant, which in turn injured his kidneys (he is in end-stage renal failure and is in need of a kidney transplant). He requires the regular aid and attendance of others to live and am substantially housebound. He served honorably, was awarded a Purple Heart and am proud of his service to this country. For all of these reasons, he believes his DD Form 214 should be corrected to "medically retired" from the Army so that he may have access (however fleeting) to the benefits lost to him due to service-connected combat injuries/illness. 3. The applicant was inducted into the Army of the United States on 19 June 1968. He served in the Republic of Vietnam (RVN) from 23 May 1969 to 20 August 1960. 4. On 21 July 1969, the applicant was wounded by a gunshot to the abdomen. He was awarded the Purple Heart on 28 July 1969. 5. On 18 June 1970, the applicant underwent an expiration of term of service physical. The Report of Medical History show the applicant indicated he was good except that he was bothered by his left hip and leg when he walk or stand for a long time. The form notes the applicant had received a gunshot wound in Vietnam with no sequelae. 6. DA Form 1811 (Physical and Mental Status on Release from Active Duty), dated 18 June 1970, shows the applicant was considered to be physically qualified for separation or for reenlistment without reexamination provided he reenlisted within 90 days and state he had not acquired new diseases or injuries during the interval period when not a member of the military service. 7. Special Orders 169, dated 18 June 1970, shows the applicant was relieved from active duty not by reason of physical disability and transferred to the United States Army Reserve (USAR) effective 18 June 1970. 8. His DD Form 214, as corrected by a DD Form 215 (Correction to DD Form 214) issued to him at the time of release shows he was discharged due to expiration term of service (ETS). He completed 2 years of net service this period. He was awarded or authorized the following: * Purple Heart * Expert Marksmanship Qualification Badge with Rifle Bar * Sharpshooter Marksmanship Qualification Badge with Rifle Bars (M-16 and M- 60) * RVN Campaign Medal with Device (1960) * RVN Gallantry Cross with Palm Unit Citation * RVN Civil Actions Honor Medal First Class Unit Citation * Army Good Conduct Medal * Vietnam Campaign Medal with two Bronze Service Stars * National Defense Service Medal 9. His record is void of documentation that shows he was treated for an injury or an illness that warranted his entry into the Physical Disability Evaluation System (PDES). Additionally, there is no indication he was issued a permanent physical profile or underwent a medical evaluation board (MEB) or a physical evaluation board (PEB) during his period of active duty. 10. Effective 1 June 1974, the applicant was honorably discharged from the USAR Control Group (Standby) due to ETS. 11. On 28 June 2019, the Army Review Boards Agency (ARBA) medical advisor provided an advisory opinion. The ARBA medical advisor states, in part, the applicant’s exit physical specifically notes his injury had not resulted in ongoing health issues; he was healthy and medically fit. His PULHES profile of all 1’s indicates he was not on profile at the time of separation; treating providers determined he did not require duty limitations. The applicant appealed the decision in 1971, which was considered by the Physical Review Board with the determination he was fit for duty at separation and for ongoing service in the Army Reserves. This determination does not negate the applicant’s service in Vietnam or post-service diagnoses and treatment from VA; however, the Army has neither the role nor the authority to compensate for progression or complications of service-connected conditions after separation. That role and authority is granted by Congress to the Department of Veterans Affairs who conduct evaluations based on different standards and regulations. VA examinations can confirm diagnoses and determine 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. A copy of the complete medical advisory was provided to the Board for their review and consideration. 12. In response to the medical advisory, the applicant’s representative states the following: a. A major portion of the advisory opinion sent from the Army Review Boards Medical Advisor is in error. The applicant contends he did not serve In the Army Reserves. He says he was receiving disability pay and was informed he would have to give that up in order to join the Reserves and he declined to do so, and never served those additional years. They are confident there is no documentation signed by the applicant acknowledging Reserve service, nor any evidence of him having carried out any duties or made any appearances as such. Regardless of whether he signed his DD Form 214 or not, has no bearing on the fact he later discovered he would lose disability benefits and therefore declined to join the Reserves. b. The Army Medical Advisor states the applicant was a patient until 18 November 1969, and then was assigned as an Infantryman Squad Leader until his ETS. The letter also states he was not put on duty limitations after that; however, they overlooked the fact he was placed on limited duty for 90 days on 6 November 1969. The applicant maintains he was on limited duty up until discharge. Furthermore, during his exit exam, there indeed was sequelae, the applicant handwrote it onto the form "I'm bothered by left leg and hip when I have to walk or stand for a long time." He still suffered the same conditions less than a year after his discharge, stating on VA Form 21-2545 on 3 December 1971, "I still have no feeling in my left thigh. It hurts if I stand for a long time and I still can't bend it as much as the right leg." c. The applicant is appealing VA’s denial of claims for contracting Hepatitis Band C via multiple blood transfusions after being shot in combat. Multiple doctors have given nexus letters in support of these conditions being service connected. So unbeknownst to the applicant, he left the service with an undetectable, life-shattering disease inside him (there were no tests for it back then-researchers didn't identify the existence of Hepatitis C until 1989) that would eventually rear its ugly head and take his liver, causing a cascade of secondary ailments and diseases for which he has been sick most of his adult life. This came directly from his combat wounds. 13. 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. 14. 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. 15. 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. 16. Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities that were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish 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 VA does not have the 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. These two government agencies operate under different policies. 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. BOARD DISCUSSION: After review of the application and all evidence, the Board denied relief. The Board agreed with the medical advisory opinion that the applicant was medically evaluated during her period of service; however, his medical service records do not indicate that his medical concern was severe enough to receive a permanent 3 Profile or higher that would have required medical boarding, which indicates that his condition at that time was not unfitting and the applicant met medical retention standards. Furthermore, the applicant continued to serve in the Army Reserves for four years after active service. This does not in any way diminish honorable service in Vietnam or his post-service diagnoses and treatment from the VA. However, regarding his discharge from active service, the Board agreed that the applicant’s discharge was proper and fitting and there is no evidence of a medical disability or condition that would support a change to the character and/or reason for the discharge in this case. 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. 10/15/2019 X 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. 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. 3. 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. 4. 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. 5. Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities that were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish 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 VA does not have the 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. These two government agencies operate under different policies. 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. //NOTHING FOLLOWS//