PROCEEDINGS by 0aW12S1z

VIEWS: 15 PAGES: 10

									                                    PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:               8 March 2000
      DOCKET NUMBER:          AR1999026207


      I certify that hereinafter is recorded the true and complete record of the
proceedings of the Army Board for Correction of Military Records in the case of the
above-named individual.

       Mr. Kenneth H. Aucock                               Analyst


  The following members, a quorum, were present:

       Mr. Raymond V. O’Connor, Jr.                        Chairperson
       Mr. Elzey J. Arledge, Jr.                           Member
       Mr. Ernest W. Lutz, Jr.                             Member

      The applicant and counsel if any, did not appear before the Board.

      The Board considered the following evidence:

      Exhibit A - Application for correction of military
               records
      Exhibit B - Military Personnel Records (including
                   advisory opinion, if any)

FINDINGS:

1. The applicant has exhausted or the Board has waived the requirement for
exhaustion of all administrative remedies afforded by existing law or regulations.
ABCMR Proceedings (cont)
AR1999026207
2. In effect, the applicant requests physical disability retirement, and correction of his
DD Form 214 to show the correct awards received.

3. The applicant states that he served on active duty from 1966 to 1973, and obtained
an early release from active duty in order to enlist in the California Army National Guard;
however, he was found to be medically unfit for enlistment because of a hearing loss
incurred in Vietnam. He was denied reenlistment in the Regular Army, transferred to
the Reserve Control Group, and subsequently discharged. He trained as a vocational
nurse and was allowed to enlist in the Army Reserve until he was mobilized for
Operation Desert Storm. He remained in the Army Reserve until his transfer to the
Retired Reserve in 1993.

4. The applicant states that prior to Operation Desert Storm he was informed that he
was medically unfit for continued service due to a combination of service connected
injuries, and injuries incurred while a civilian. Three days later he was mobilized,
received a physical examination and a physical profile serial of             2 2 3 3 2 1.
While awaiting deployment he injured his shoulders, back and neck during training and
had a recurrence of the skin condition that he incurred in Vietnam. During separation
processing he was referred for a neurological consultation due to injuries received on
active duty; however, due to the nonavailability of a neurologist, he was released from
active duty without having undergone that consultation. The VA did not accomplish the
neurological examination until 15 September 1993, after he had retired. A VA decision
in February 1996 found him 20 percent disabled from injuries incurred in Vietnam, and
30 percent for injuries incurred during Operation Desert Storm, for a combined rating of
40 percent. His ability to perform military duty was also hampered by an additional 53
percent permanent disability incurred as a peace officer.

5. The applicant states that the Army Commendation Medal, first oak leaf cluster,
dated 20 October 1995 should be added to his DD Form 214, as should the Army
Reserve Components Achievement Medal, first oak leaf cluster, dated 9 April 1991, and
the National Defense Service Medal, M device. He cites errors on his DD Form 214, in
that that form should show award of only 6 overseas bars; and that various awards
listed on DA Form 1577 (Authorization for Issuance of Awards) are not included on his
DD Form 214. He also states that his DA Form 1577 contains errors. The applicant
also encloses documents showing the lineage and honors of the 313 th MI Battalion and
the 404th Army Security Agency Company, units that he states that he served with in
Vietnam during the period in which those units received unit awards.

6. Incorporated herein by reference are military records which were summarized in a
memorandum prepared to reflect the Board’s consideration of his case on       9 January
1985, in which he requested physical disability retirement or separation.
7. The applicant’s military records show that he entered on active duty in 1966, served
in various locations throughout the world to include Turkey; Berlin, Germany; and three
tours of duty in Vietnam. He was released from active duty in the grade of Sergeant on
7 May 1973 and transferred to a unit in the California Army National Guard. The order
                                             2
ABCMR Proceedings (cont)
AR1999026207
releasing him from active duty shows that his separation was not by reason of physical
disability.

8. On 23 October 1973 the applicant was transferred to the Army Reserve Control
Group (Annual Training) because he did not meet the eligibility criteria for enlistment in
the California Army National Guard. In a 1981 correspondence to the Reserve
Personnel Center at St. Louis the applicant indicated that he was unable to fulfill his one
year obligation in the Army National Guard in a combat arms position because of a high
frequency hearing loss incurred in Vietnam.

9. In a 1974 letter to a member of congress the Department of Navy Bureau of
Medicine and Surgery stated that the applicant did not meet established physical
standards for enlistment because of defective auditory acuity, bilateral.

10. The applicant was promoted to Sergeant First Class on 22 January 1981.

11. On 15 January 1984 the applicant requested active duty for training, stating that to
the best of his knowledge he was physically qualified for active military duty, and the
last time that he was examined was on 7 November 1982.

12. On 2 December 1985 the applicant was transferred from his Reserve unit in
Marina, California to the Army Reserve Control Group (Reinforcement) in St. Louis. He
reenlisted in the Army Reserve for six years on 23 October 1986.

13. On 29 June 1990 the applicant was awarded the Armed Forces Reserve Medal.

14. On 25 January 1991 the Army Reserve Personnel Center informed the applicant
that he did not meet the standards for retention in the Army Reserve and/or entry on
active duty because of chronic low back pain; and that he had to elect either discharge,
transfer to the Retired Reserve, or request a waiver for retention. There is no evidence
that he responded to this notification.

15. The applicant was ordered to active duty in support of Operation Desert
Shield/Storm with a reporting date of 8 February 1991 to Fort Jackson, South Carolina.
A HSC Form 621-R (Individual Medical History) of 9 February 1991 shows that his last
physical examination was in July 1989, that he had a physical profile serial of 2 2 3 3 2
1; and that his medical condition showed a herniated disc, hypertension, rotator cuff
injury, and chronic low back pain.

16. A 6 March 1991 report of medical examination shows that the applicant had a
small lesion of his hands, hypertension (controlled with medication), low back
syndrome, a turning in of his left foot, and a history of sciatica in the left leg for 15
years. The examining official recommended neurology consultation at a VA hospital.
He was medically qualified for separation. In the report of medical history he furnished
for the examination, the applicant indicated that he had numerous ailments and medical
                                             3
ABCMR Proceedings (cont)
AR1999026207
problems. The examining official indicated that the applicant had a history of low back
injury with sciatica of left leg since an explosion in Vietnam in 1970, and had an inward
deviation of his left foot since performing physical training 3 weeks ago at Fort Jackson.
 He again recommended consultation at a neurology clinic at a VA hospital.

17. The applicant was released from active duty at Fort Jackson on
10 March 1991. His DD Form 214 (since corrected on 21 February 1992), shows that
he was awarded the Army Service Ribbon, two awards of the National Defense Service
Medal, two awards of the Army Good Conduct Medal, the Army Achievement Medal,
the Bronze Star Medal, the Purple Heart, the Republic of Vietnam Gallantry Cross with
Palm Unit Citation (three times, a erroneous duplication on the original DD Form 214,
and an erroneous entry on the               21 February 1992 correction), the Republic of
Vietnam Civil Actions Honor Medal Unit Citation, the Vietnam Service Medal with 10
service stars, the Army Reserve Components Achievement Medal, the Republic of
Vietnam Campaign Medal with 60 device (twice, another duplication), the Army of
Occupation Medal (twice, another duplication), the Overseas Service Ribbon (twice,
another duplication), the NCO Professional Development Ribbon with numeral 3
(another duplicate entry), qualification badges with the rifle, grenade, and pistol (also
duplicated), the overseas service bar – 6, and the overseas service bar – 1 (an obvious
error), and the Combat Infantryman Badge.

18. On 9 April 1991 the applicant was awarded the Army Reserve Components
Achievement Medal (first oak leaf cluster).

19. A 4 June 1993 chronological statement of retirement points shows as of        10
March 1993 the applicant had 20 years, 5 months, and 17 days of qualifying service for
retired pay at age 60.

20. The applicant was reassigned to the Retired Reserve on 21 June 1993.

21. An 18 August 1993 DA Form 1577 shows that the Army Reserve Personnel Center
authorized the Commander of the Army Support Activity in Philadelphia to issue the
applicant various awards.

22. On 20 October 1995 the applicant was awarded the Army Commendation Medal,
first oak leaf cluster.

23. In a 27 October 1995 decision the VA awarded the applicant a 20 percent service
connected disability rating for residuals of injury to the spine with postoperative
residuals of cervical spine fusion; a 10 percent disability rating for lumbosacral strain
with degenerative changes as residuals of a low back injury; and a 0 percent rating for
scar as residual of laceration of the gluteal fold. That decision also showed a 10
percent rating for tinnitus, a 10 percent rating for skin rash with P.O. bilateral ingrown
toenails, a 0 percent rating for right little finger fracture and bilateral hearing loss. He
had a combined rating of 40 percent. The rating decision indicates that although the
                                              4
ABCMR Proceedings (cont)
AR1999026207
applicant’s medical records were negative for evidence of treatment for disabilities of
the cervical and lumbar spine and the laceration of the gluteal fold as residuals of an
injury to his back that he said occurred in Vietnam, and service connection had been
denied, on file was a witness statement from a fellow soldier who served in combat with
the applicant. Furthermore, the applicant had been awarded the Purple Heart and the
Combat Infantryman Badge. That decision went on to say that the applicant worked as
a correctional officer following his service and suffered injuries to his neck and low back
pain in November 1980 as a result of an altercation with an inmate, and that there was
considerable records pertaining to treatment for that injury. One doctor opined that the
applicant’s spur formation at L2-3 and L3-4 would indicate that the degenerative
process had been present for a considerable period of time prior to the applicant’s injury
in November 1980. The rating board medical specialist agreed with that doctor’s
findings and indicated that he would not be able to disassociate the residuals of the
in-service injury from the post-service injury that occurred in 1980. He also stated in
effect that he would favor the granting of reasonable doubt in the applicant’s favor, and
service connected disability of the cervical spine.

24. There is no evidence of record, nor has the applicant provided any, to show his
units of assignment during his Vietnam tours of duty.

25. Title 10, United States Code, chapter 61, provides disability retirement or
separation for a member who is physically unfit to perform the duties of his office, rank,
grade or rating because of disability incurred while entitled to basic pay.

26. Army Regulation 635-40, paragraph 3-2b states in pertinent part that 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.

27. That paragraph goes on to say that when a member is being separated by reason
other than physical disability, his continued performance of duty creates a presumption
of fitness which can be overcome only by clear and convincing evidence that he was
unable to perform his duties or that acute grave illness or injury or other deterioration of
physical condition, occurring immediately prior to or coincident with separation,
rendered the member unfit.

28. Title 38, United States Code, sections 310 and 331, 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 concerned. Consequently, due to the two concepts involved, an
individual's medical condition, although not considered medically unfitting for military
                                             5
ABCMR Proceedings (cont)
AR1999026207
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.

CONCLUSIONS:

1. The evidence of record shows that the applicant was medically qualified for
retention or separation in May 1973 with a physical profile serial of 1 2 1 1 2 1. On the
report of medical history a traumatic hearing loss was noted. A copy of a physical
examination, dated 5 June1973, shows that the applicant was medically qualified with a
physical profile serial of 1 1 1 3 2 1. A 16 October 1973 VA rating decision indicates a
zero percent rating for bilateral high frequency hearing loss, ingrown toe nail (right and
left), skin rash, and residuals of fracture of the right little finger. This evidence is
reflected in the Board’s 9 January 1985 decision on his request for physical disability
retirement or separation. That Board found that the applicant’s medical conditions
were not of such severity so as to exceed the medical fitness standards; and, therefore,
did not warrant disability processing. His request was denied. This Board notes that
the VA has awarded the applicant a 40 percent rating for service connected disabilities,
based on injuries that he received during his Vietnam service in the 1970’s; however,
the evidence also shows, as the VA has noted, that the applicant suffered injuries to his
neck and low back on his civilian job in 1980. The applicant himself stated that he was
hampered by a permanent disability incurred as a peace officer. The 1985 Board has
adequately addressed the applicant’s request for physical disability retirement or
separation based on his contention of service connected conditions.
2. The applicant served on active duty in support of Desert Shield/Storm from            8
February to 10 March 1991. A 9 February 1991 medical history document clearly
shows that the applicant had various medical conditions, i.e., herniated disc, chronic low
back pain, hypertension, prior to his order to active duty. In fact, the Army Reserve
Personnel Center had determined that he was medically unfit. There is no evidence of
any action concerning this matter. However, had the applicant requested discharge or
transfer to the Retired Reserve in 1991, he would not have 20 qualifying years of
service for retired pay at age 60.
3. A report of medical examination clearly shows that the applicant was medically
qualified for separation in March 1991, notwithstanding the applicant’s contention that
he injured his shoulders, back, and neck, and had a recurrence of a skin condition
incurred in Vietnam, while at Fort Jackson. The only evidence of injury that he incurred
while on this active duty tour appeared to be a turning in of his left foot while performing
physical training at Fort Jackson. Nevertheless, at the time of the separation physical
examination, competent medical authority determined that the applicant was then
medically fit for retention or appropriate separation. Accordingly, the applicant was
separated from active duty for reasons other than physical disability.

4. Furthermore, the applicant's continued performance of duty raised a presumption of
fitness which he has not overcome by evidence of any unfitting, acute, grave illness or
injury concomitant with his separation.

                                             6
ABCMR Proceedings (cont)
AR1999026207
5. The fact that the VA, in its discretion, has awarded the applicant a disability rating is
a prerogative exercised within the policies of that agency. It does not, in itself,
establish physical unfitness for Department of the Army purposes.

6. The award of VA compensation does not mandate disability retirement or separation
from the Army. The VA, operating under its own policies and regulations, may make a
determination that a medical condition warrants compensation. The VA is not required
to determine fitness for duty at the time of separation. The Army must find a member
physically unfit before he can be medically retired or separated.

7. The VA 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
concerned. Consequently, due to the two concepts involved, the applicant'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 him for
VA benefits based on an evaluation by that agency.

8. An award of a VA rating does not establish entitlement to medical retirement or
separation. The VA is not required to find unfitness for duty. Operating under its own
policies and regulations, the VA awards ratings because a medical condition is related
to service, i.e., service-connected. Furthermore, the VA can evaluate a veteran
throughout his lifetime, adjusting the percentage of disability based upon that agency's
examinations and findings. This is apparent as shown by the 16 October 1973 VA
rating decision awarding the applicant a zero percent rating for various disabilities; and
awarding him a combined 40 percent rating for those and other disabilities over 20
years later. The Army must find unfitness for duty at the time of separation before a
member may be medically retired or separated.

9. The medical evidence of record indicates that the applicant was medically fit for
retention at the time of his separation in 1973 and again in 1991. He has submitted no
probative medical evidence to the contrary.

10. The applicant did not have any medically unfitting disability which required physical
disability processing. Therefore, there is no basis for physical disability retirement or
separation.

11. The Board agrees that there are errors on the applicant’s 10 March 1991    DD
Form 214 and the 21 February 1992 DD Form 215 correcting the                 DD
Form 214. Except for two instances, however, those errors appear to be of
duplication, however, and not of omission. The applicant was awarded the Army
Commendation Medal, 1st oak leaf cluster in 1995, and the Army Reserve Components
Achievement Medal in April 1991; however, both of those decorations were awarded
after his 10 March 1991 separation. Consequently, they could not and cannot be
                                             7
ABCMR Proceedings (cont)
AR1999026207
included on that separation document. The applicant was awarded the Army Reserve
Components Achievement Medal,         1st oak leaf cluster, and the Armed Forces
Reserve Medal prior to his separation and is authorized to wear the mobilization (“M”)
device on the latter medal. Both of those awards should be shown on his separation
document.

12. The applicant’s units of assignment during his Vietnam tours cannot be verified.
Consequently, he cannot be awarded the Presidential Unit Citation or any Meritorious
Unit Citations. Furthermore, there is no evidence to show any awards of the
Humanitarian Service Medal, or the Army Commendation Medal (notwithstanding the
fact that he was awarded the1st oak leaf cluster to that medal in 1995).

13. The applicant’s DD Form 214 should reflect the following awards, decorations, and
badges: The Purple Heart, Bronze Star Medal, Army Achievement Medal, two awards
of the Army Good Conduct Medal, two awards of the National Defense Service Medal,
the Army Service Ribbon, the Army of Occupation Medal with Germany clasp, the
Overseas Service Ribbon, the Vietnam Service Medal with two silver service stars
(denoting participation in    10 campaigns), the Republic of Vietnam Campaign Medal
with Device (1960), the NCO Professional Development Ribbon with numeral 3, the
Army Reserve Components Achievement Medal with 1st oak leaf cluster, the Armed
Forces Reserve Medal with “M” device, the Republic of Vietnam Gallantry Cross with
Palm Unit Citation, the Republic of Vietnam Civil Actions Honor Medal First Class Unit
Citation, the Combat Infantryman Badge, the Expert Qualification Badge with rifle bar,
the Expert Qualification Badge with grenade bar, the Sharpshooter Qualification Badge
with pistol bar, and six overseas service bars.
14. Due to the duplication and confusion concerning the applicant’s awards as
reflected on his DD Form 214 and the 21 February 1992 DD Form 215, it would be
appropriate to issue the applicant a new DD Form 214 reflecting the information on his
10 March 1991 DD Form 214 as changed by his                           21 February 1992
DD Form 215, except for that portion concerning decorations, medals, badges, and
campaign ribbons. The information concerning awards on his new DD Form 214 will
reflect only those the awards, decorations, badges, etc., indicated in paragraph 13
above.

15. A DA Form 1577 is simply a request, in this case, from the Army Reserve
Personnel Center in St. Louis, to the Army Support Activity in Philadelphia, for that
agency to issue an award, decoration, or badge. It is not an authorization for an award.
 This 1993 request for issue of awards, no matter erroneous, cannot be altered;
however, even could it be done, it would accomplish nothing. Formal recommendation
and approval in the chain of command are required for awards. The award must be
announced or published in general or permanent orders. Service and campaign
medals, and unit awards, are authorized by virtue of honorable performance of duty
within specified limited dates in specified geographical areas. Unless there is some
documentation to show authorization for an award of performance of duty within a unit
or in an area, the medal, decoration, or award, is not authorized. Notwithstanding, the
                                           8
ABCMR Proceedings (cont)
AR1999026207
information indicated in the DA Form 1577 provided by the applicant, the only awards
authorized the applicant are those contained in the aforementioned        paragraph
13.

16. In view of the foregoing, the applicant’s records should be corrected as
recommended below.

RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected by
issuing the applicant a new DD Form 214. That form will reflect the information
contained in his 10 March 1991 DD Form 214 as corrected by his        21 February 1992
DD Form 215, with the exception that that form reflect award of the following
decorations, medals, badges, and campaign ribbons, in item 13:
The Purple Heart, Bronze Star Medal, Army Achievement Medal, two awards of the
Army Good Conduct Medal, two awards of the National Defense Service Medal, the
Army Service Ribbon, the Army of Occupation Medal with Germany clasp, the Overseas
Service Ribbon, the Vietnam Service Medal with two silver service stars, the Republic of
Vietnam Campaign Medal with Device (1960), the NCO Professional Development
Ribbon with numeral 3, the Army Reserve Components Achievement Medal with 1 st oak
leaf cluster, the Armed Forces Reserve Medal with “M” device, the Republic of Vietnam
Gallantry Cross with Palm Unit Citation, the Republic of Vietnam Civil Actions Honor
Medal First Class Unit Citation, the Combat Infantryman Badge, the Expert Qualification
Badge with rifle bar, the Expert Qualification Badge with grenade bar, the Sharpshooter
Qualification Badge with pistol bar, and six overseas service bars.

2. That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:

___eja___ ___ewl__ __rvo___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                                   ______________________
                                         CHAIRPERSON




                                           9
ABCMR Proceedings (cont)
AR1999026207

                                    INDEX

CASE ID                    AR1999026207
SUFFIX
RECON                      YYYYMMDD
DATE BOARDED               20000308
TYPE OF DISCHARGE          (HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE          YYYYMMDD
DISCHARGE AUTHORITY        AR . . . . .
DISCHARGE REASON
BOARD DECISION             GRANT
REVIEW AUTHORITY
ISSUES        1. 177       108.00
           2.              107.00
           3.
           4.
           5.
           6.




                                     10

								
To top