ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 1 April 2020 DOCKET NUMBER: AR20190009486 APPLICANT REQUESTS: reconsideration of his previous request that the medical records of his deceased father, a former service member (FSM), be corrected to reflect the severity of what happened to him and to be more specific about the extent of his injuries and how they actually occurred. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: ? DD Form 149 (Application for Correction of Military Record) ? Multiple correspondence letters from and with the Department of Veteran Affairs (VA) ? Emails ? Some of FSM's medical documents and service documents ? 2 Lists of FSM's combat connected injuries completed by applicant ? 3 Lists of evidence of fraud against VA completed by applicant ? Previously submitted letter to ABCMR (2011) ? List of error and injustices to correct the record completed by the applicant ? Previously submitted letter to ABCMR (2012) ? Evidence and Proof that supports the request to correct the FSM's record completed by applicant ? Letter to the Ohio American Legion (2013) ? VA Appeal ? List of laws and regulations violated by the Army and VA completed by applicant ? Power of Attorney FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120010187 on 19 July 2012. 2. The applicant makes numerous statements and contentions as it pertains to the correction of his father's medical records. He contends, in effect, the Army deliberately misrepresented and omitted facts, thereby violating laws and regulations regarding the injuries to the FSM which occurred in combat. The VA used this misrepresentation to further deny the FSM the disability rating, benefits, and compensation deserved. For example: ? One medical document focused on his right ankle and nothing else when he was actually unconscious and requiring to be carried off the battlefield on a stretcher with several other injuries ? Another medical document shows he was conscious upon being admitted to the 17th Field Hospital to conceal the facts about the incident that inflicted numerous casualties on his company ? Another document shows his diagnosis as severe contusion to the right ankle caused by a falling rock without any reference to the explosions and the friendly fire ? There is no mention of the ringing in his ears, hearing difficulty, headaches, or injury to the lower back and shoulder, or that he was unconscious ? There is no mention of any daily care for 29 out of 45 days of hospitalization ? Tests conducted in 2006 clearly show he incurred a major head injury and damage to his hearing and lower back attributed to explosions ? One document has the word "accidentally" added at a later date in an effort to misrepresent the facts about his near-death combat experience ? The FSM was almost killed on 31 October 1944 by friendly fire and he was unconscious for at least 25 days due to major head trauma and possibly blood seepage on his brain ? The FSM was discharged from the hospital on 14 December 1944 and reassigned to another unit to perform driver duties but was sent right back into combat ? On 3 April 1945, he checked back into the hospital and his near fatal injuries were again ignored by the Army ? The Army records misrepresent the facts and claim he had stomach and bowel trouble since he was young ? His induction medical records do not contain any ailments and he never complained about the chronic symptoms the Army alleged he had ? Despite his condition, he was sent to combat a third time and he was involved in the liberation of Manila ? He was also hospitalized after Manila for acute neuritis in the right arm ? Subsequent tests clearly show he suffered from neurological damage which the Army chose to ignore ? All the Army's medical conclusions were obtained from physical examinations without any tests being performed and his records do not reflect the truth ? The Army falsified his discharge examination and claimed there was a fire in St. Louis ? The Army claimed the FSM had psychological problems when he was in fact normal in every way including psychology ? He was mistreated by the VA to the extent that he was threatened if he submitted another appeal they would take away his remaining 10% disability rating ? The treatment he received from the Army and the VA is despicable; the VA used the current Army medical records to destroy him financially ? It would be an act of negligence if the Army does not correct the medical records 3. Not all of the FSM's records are available to the Board for review. A fire destroyed approximately 18 million service members' records at the National Personnel Records Center in 1973. It is believed that his records were lost or destroyed in that fire. However, there were sufficient documents provided by the applicant for the Board to conduct a fair and impartial review of this case. 4. The FSM's WD AGO Form 53-55 shows he was inducted into the Army of the United States on 21 July 1943, and entered active service in Franklin, OH, on 11 August 1943. This form also shows that at the time of separation, he held military occupational specialty 604 (Light Machine Gunner) and he was assigned to Company C, 323rd Infantry, 81st Division. 5. His WD AGO Form 53-55 also shows he departed the Continental United States (CONUS) on 3 July 1944 and he arrived in the Asiatic Pacific Theater (APT) on 8 July 1944. He departed the APT on 3 December 1945 and arrived back in CONUS on 15 December 1945. 6. He completed 11 months and 14 days of CONUS service and 1 year, 5 months, and 13 days of foreign service. He was honorably discharged on 8 January 1946. The WD AGO Form 53-55 also shows in: ? Item 31 (Military Qualifications and Date) - the Combat Infantryman Badge ? Item 32 (Battles and Campaigns) - he participated in the Northern Solomons and Southern Philippines campaigns ? Item 33 (Decorations and Citations) - Asiatic-Pacific Theater Campaign Ribbon with two bronze service stars, Philippine Liberation Ribbon with one bronze service star, World War II Victory Medal, and Purple Heart ? Item 34 (Wounds Received in Action) - the entry "Palau Island 31 October 1944" 7. The FSM died on 20 January 2007. 8. On 29 September 2011, he was issued a DD Form 215 (Correction to DD Form 214 - Certificate of Release or Discharge from Active Duty) that added award of the Bronze Star Medal. 9. On 30 January 2020, an Army Review Boards Agency (ARBA) medical advisor provided an advisory opinion as it pertains to determining if the FSM had medical conditions that should have been diagnosed at the time of discharge. The ARBA medical advisor states, in part, the FSM sustained an injury due to combat as well as injuries that were incurred in a combat zone. The discharge exam included two conditions that were incurred during military service: chronic, mild prostatitis and a well healed right leg shrapnel scar. Both were determined to meet retention standards. However, the discharge exam did not completely list all of the veteran’s conditions. To be complete, the discharge exam may have included the following conditions that all appear to have met retention standards: ? Right ankle sprain, severe – resolved (combat injury) ? Right leg scar (right calf), secondary to shrapnel wound – well healed (combat injury) ? Right leg scar, secondary to heating pad burn – well healed (combat zone incurred) ? Right leg infection, secondary to heating pad burn – resolved (combat zone incurred) ? Functional gastrointestinal condition, intermittent – not currently active (existed prior to service, aggravated in a combat zone) ? Appendectomy scar- well healed (existed prior to service, not aggravated in service) ? Amebic dysentery (Entamoeba histolytica) – treated (combat zone incurred) ? Gastrointestinal parasitic infection (giardia), mild – treated (combat zone incurred) ? Brachial neuritis, right arm, moderate to severe – resolved (combat zone incurred) ? Chronic, mild prostatitis, organism (gonorrhea) – treated, mild inflammation persists ? Mental health diagnosis – see BH report under separate cover 10. The advisory opinion further concludes the Army and the Department of Veterans Affairs have different missions. The Army does not have the authority to compensate for the progression of, nor for complications arising from, service-connected conditions after separation. That authority rests with the Department of Veterans Affairs, which operates under a different set of laws and standards. A copy of the complete medical advisory was provided to the Board for their review and consideration. 11. On 30 January 2020, an ARBA clinical psychologist provided an advisory opinion as it pertains to the determining if the FSM had a behavioral health condition while in- service and whether or not he met medical retention standards at the time of discharge. The ARBA medical advisor states, in part, while the FSM did not meet criteria for PTSD, he met criteria for Somatic Symptom Disorder. Given the available records, the condition was not responding to interventions and rendered him unfit at the time of separation. A copy of the complete medical advisory was provided to the Board for their review and consideration. 12. In response to the advisory opinions, the applicant submits a 15-page rebuttal wherein he disagrees with the opinions and states, in part: a. He is convinced the advisory opinions are incomplete, omit numerous documents of record, and are filled with major errors and contradictions. There is just reason to question the effectiveness of this process. It is very clear the advisory committee has no clue what has gone on and cannot separate the facts from someone’s uneducated and unfounded opinion. But before this response is over the facts will be magnified beyond denial. Frankly the facts of record and his personal knowledge of the FSM's service to this nation demands the U.S. Army to explain why they tampered with his records, omitted key facts about his service, and clearly treated the FSM inhumanely as if he was a rag they could discard at any time. In the face of his meritorious service the U.S. Army should explain why they disregarded their own mottos, codes of conduct, and along with VA, disregard Federal and State Law and U.S. Army and Military rules and ethics. b. While the U.S. Army and VA supposedly have rules and standards, the FSM's case shows they sadly violate those rules and standards at times and even go so far as to commit criminal acts in the process. It is past time for truth and justice and the U.S. Army and the VA to be held accountable for what they did to this meritorious volunteer Soldier and Veteran in and with his records. c. It is very clear the advisory was prepared by a psychiatrist for it focuses on mental, neurotic, and brachial problems as the FSM endured and after his combat meritorious service. The VA stooped so low one time they had a psychiatrist in Northern Ohio call him on the phone to interview the FSM sight unseen so VA could use his report against him and not to help him to develop his claim. This was abnormal and typical of VA’s consistent tactics used against the FSM. It has been his experience most, not all, of these mental experts themselves are egotistical and think they are so much smarter than those who do not have their education. These kind of people made many errors and stated false things about the FSM who was suffering badly from the incident at Peleliu. The advisory opinion starts off by getting the date of his entrance exam wrong and contradicting the dates for his entrance exam and period of service. d. The documented facts, the evidence and the law supports the FSM and his son’s appeal and case. There is no practical denial or rebuttal to that fact. For starters, according to the second advisory opinion, ABCMR should ignore the law as stated in 38 USC 1132, which states every person employed in the active military, naval or all service, for 6 months or more shall be taken to have been in sound condition when examined and accepted enrolled for service except as to defects, infirmities, or disorders noted at the time of examination acceptance and enrollment or where evidence or medical judgment is such as to warrant a finding that the disease or injury existed before acceptance and enrollment. According to the FSM's entrance exam and prior to the incident at Peleliu, the FSM was in good health. e. The advisory opinion confirmed the FSM and his company were victims of a terrible friendly fire bombardment attack killing or severely injuring over half of the company. It is clear the U.S. Army failed to accurately and fully document the incident and dishonored the FSM and those who lost their lives in service of America. Scribbling the word accidental failed miserably to properly record the incident. It is even worse ABCMR has so far failed to correct the FSM's records when they were initially given the evidence and the law requiring them to do so. f. The second advisory opinion focuses on the mental or neurotic aspect of the FSM's appeals and is an example of what took place many times during his appeals. While VA was supposed to assist him in developing his claims, they used illegal tactics to interfere with his due process right to claim and appeal. They used tactics such as concealing his records and blaming his mental symptoms on pre-service events. The FSM did not exhibit any PTSD or mental problems until after he went through the incident at Peleliu on 31 October 1944, and an accurate record of it was not available to those who cared for him after two additional major battles which could have easily explained not only his physical issues but also his mental issues. There is photo evidence to prove it. g. It is against the law to conceal or tamper with a Soldier’s or Veteran’s military and medical records; however, that is exactly what the VA and U.S. Army did to the FSM. Federal, State, Military and U.S. Army laws were violated by both the VA and U.S. Army over a long period of time. This occurred as recently 2006, when a formal written request was made to VA to produce the FSM's records to assist the Tiger Team in handling his expedited appeal. h. He is not requesting every record be corrected, but that the account of the incident at Peleliu and a summary of the FSM's combat injuries be attached to his military record and file. It is only just and the legal thing to do and what ABCMR is chartered to do and should have done a long time ago. It needs to be noted the ABCMR sent a letter to the FSM's son on 27 November 2012, acting as if the correction of his records was still possible. ACBMR was told they would be removed from a lawsuit if they correctly corrected the FSM's record. 13. Army Regulation 615-361 (Enlisted Men – Discharge – Medical), in effect at the time, discussed Certificates of Disability for Discharge, which were issued to enlisted Soldiers who were permanently unfit for further military service because of wounds or disease. 14. Section 61 of Title 10, U.S. Code, amended by Public Law Number 140, dated 30 June 1941, extended disability retirement to Army enlisted Soldiers with 20 or more years of service to be retired for disability. 15. Prior to 1 October 1949, on which date the Career Compensation Act of 1949, Public Law 351, 81st Congress, became effective, compensation for service-connected disabilities was under the jurisdiction of the VA. This Act vested the administration of payment of disability retirement pay in the Secretary of the Army. 16. Army Regulation 635-40 governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability 17. Title 38, United States Code, sections 1110 and 1131, permit 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. 18. 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. The VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 19. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. BOARD DISCUSSION: 1. The Board considered the application, the applicant's written statements, the evidence he provided, evidence from the FSM's service record, advisory opinions provided by ARBA medical staff, and the applicant's response to the advisory opinions. By teleconference, the applicant also provided oral testimony to the Board, answered questions from the Board members and directed questions to the Board members. During the teleconference the applicant again listed the corrections he desired on behalf of his father. The applicant agreed that there was almost no way to show that the Army tried to cover up the mistakes made by leadership at the battle of Peleliu, or to have that cover-up reflected in his father’s records. But the applicant was convinced that the cover-up effort contributed to the numerous erroneous entries in his father’s records. The applicant frequently reiterated his displeasure with how the VA treated his father. The teleconference lasted approximately 45 minutes. 2. The Board noted that the FSM's separation physical examination completed on 8 January 1946, the date of his discharge, did not fully capture all of the conditions he had at that time. The Board concurred with the medical advisor's assessment that to be complete, the examination should have included all of the following conditions: ? Right ankle sprain, severe – resolved (combat injury) ? Right leg scar (right calf), secondary to shrapnel wound – well healed (combat injury) ? Right leg scar, secondary to heating pad burn – well healed (combat zone incurred) ? Right leg infection, secondary to heating pad burn – resolved (combat zone incurred) ? Functional gastrointestinal condition, intermittent – not currently active (existed prior to service, aggravated in a combat zone) ? Appendectomy scar – well healed (existed prior to service, not aggravated in service) ? Amoebic dysentery (Entamoeba histolytica) – treated (combat zone incurred) ? Gastrointestinal parasitic infection (giardia), mild – treated (combat zone incurred) ? Brachial neuritis, right arm, moderate to severe – resolved (combat zone incurred) ? Chronic, mild prostatitis, organism (gonorrhea) – treated, mild inflammation persists 3. The Board considered the applicant's contention that the FSM incurred a brain injury. Although the Board agreed it is possible the FSM suffered some type of concussive head injury during combat, the available service records make no mention of such an injury. The Board found the available evidence insufficient as a basis for correction of the FSM's record to show he incurred a brain injury. The Board noted that a 2006 diagnostic scan of the FSM’s head showed a chronic subdural hematoma. The Board concurred with the medical advisory opinion that there was no indication that this condition was attributable to exposure to explosives or to any other cause occurring while in service. The Board was persuaded by the medical advisory opinion that a subdural hematoma would not persist for decades, and that hematoma therefore was not connected to military service. The Board did, however, agree that the evidence supports adding a statement to the record indicating the FSM complained of such an injury prior to his discharge. The Board further determined that the FSM's separation physical should also reflect that he had complained of tinnitus and hearing problems related to his combat service. 4. The Board considered the FSM's post-service diagnosis of PTSD and the advisory opinion provided by an ARBA psychologist. The Board concurred with the advisory opinion’s assessment that the FSM had Somatic Symptom Disorder at the date of discharge. The Board, however, further determined that, given the FSM's history of intense combat service, a preponderance of the evidence supports a conclusion that the behavioral health symptoms he was exhibiting prior to discharge were symptoms of PTSD, a diagnosis for which he later received a service-connected disability rating. The Board acknowledged that PTSD was not a diagnosis in use by the psychiatric community at the time, but agreed that his separation physical examination documents should have documented the behavioral health diagnosis he had received prior to discharge (i.e., psychoneurosis, anxiety state, later changed to anxiety state, moderate). 5. The Board concurred with the ARBA psychologist's opinion that the FSM was not fit for continued military service at the time of his discharge. Based on a preponderance of the evidence, the Board determined the FSM's record should be corrected to show he was discharged due to disability incurred in the line of duty and issued a Certificate of Disability for Discharge. The Board found the FSM’s Somatic Symptom Disorder alone would have warranted a disability discharge. But the Board also found that the FSM’s PTSD symptomology and his aforementioned physical ailments would have contributed to his overall physical and mental condition such that a Certificate of Disability for Discharge would have been warranted. 6. Finally, the Board considered the insertion of the word "accidentally" in the clinical record of the ankle injury the FSM incurred from a falling rock on or about 31 October 1944. The Board agreed a preponderance of the evidence does not support this insertion and the word "accidentally" should be removed from the record. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a. Preparing an appropriate document amending his WD AGO Form 38 (Report of Physical Examination of Enlisted Personnel Prior to Discharge, Release from Active Duty or Retirement) to show the following: ? Right ankle sprain, severe – resolved (combat injury) ? Right leg scar (right calf), secondary to shrapnel wound – well healed (combat injury) ? Right leg scar, secondary to heating pad burn – well healed (combat zone incurred) ? Right leg infection, secondary to heating pad burn – resolved (combat zone incurred) ? Functional gastrointestinal condition, intermittent – not currently active (existed prior to service, aggravated in a combat zone) ? Appendectomy scar – well healed (existed prior to service, not aggravated in service) ? Amoebic dysentery (Entamoeba histolytica) – treated (combat zone incurred) ? Gastrointestinal parasitic infection (giardia), mild – treated (combat zone incurred) ? Brachial neuritis, right arm, moderate to severe – resolved (combat zone incurred) ? Chronic, mild prostatitis, organism (gonorrhea) – treated, mild inflammation persists ? Psychoneurosis, anxiety state, later changed to anxiety state, moderate (combat zone incurred) ? Complaint of head injury – no related treatment or diagnoses documented ? Complaint of tinnitus and hearing loss – no related treatment or diagnoses documented b. Issuing a Certificate of Discharge for Disability or equivalent document showing he was discharged due to disability incurred in the line of duty. c. Redacting the word "accidentally" from his 17th Field Hospital Clinical Record (date of admission 3 November 1944). 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to any relief in excess of that described above. 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. REFERENCES: 1. Army Regulation 615-361 (Enlisted Men – Discharge – Medical), in effect at the time, discussed Certificates of Disability for Discharge, which were issued to enlisted Soldiers who were permanently unfit for further military service because of wounds or disease. 2. Section 61 of Title 10, U.S. Code, amended by Public Law Number 140, dated 30 June 1941, extended disability retirement to Army enlisted Soldiers with 20 or more years of service to be retired for disability. 3. Prior to 1 October 1949, on which date the Career Compensation Act of 1949, Public Law 351, 81st Congress, became effective, compensation for service-connected disabilities was under the jurisdiction of the VA. This Act vested the administration of payment of disability retirement pay in the Secretary of the Army. 4. Army Regulation 635-40 governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. a. 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. b. This regulation defines "physically unfit" as unfitness due to physical disability when the unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank, or rating in such a way as to reasonably fulfill the purposes of his employment on active duty. The mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability. 5. Title 38, United States Code, sections 1110 and 1131, permit 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. 6. 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. The VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 7. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. //NOTHING FOLLOWS//