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Decision Text

ARMY | BCMR | CY1990-1993 | 9005775
Original file (9005775.rtf) Auto-classification: Denied
APPLICANT REQUESTS: In effect. reconsideration of his previous request to correct his records by showing that he was separated due to physical disability.

APPLICANT STATES: In effect, expressed in a letter from his Congressman, that his psychiatric records have never been reviewed.

NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records which were summarized in a memorandum 0f consideration (MOC) prepared to reflect the Board's original consideration of his case on 7 August 1991 (COPY ATTACHED).

A letter from the applicant’s Congressman is accepted as a reconsideration request. In support of the request all of the applicant’s medical and psychiatric records from 1974 to present, in his surname and his alias, are submitted for review.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. All of the applicant’s service medical records, VA medical records, and dental records up to this date and from 1974 under surnames and alias’ have been reviewed in consideration of the applicant’s request.,

2. The law and regulations cited in the Board’s prior consideration of the applicant’s case make it clear that to be separated for physical disability a soldier must be physically unable to perform duty and that the presence of a medical condition that was acquired or aggravated while entitled to basic pay does not necessarily require an medical evaluation board or qualify an individual for physical disability.

3. Furthermore, the MOC points out that the Military and VA systems are essentially different.

4. The rating action by the VA does not necessarily demonstrate any error or injustice in the Army rating. The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit. Any rating action by the VA does not compel the Army to modify its rating.

5. 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. There is no right to a medical evaluation board. Individuals are referred to a medical evaluation board when, in the opinion of their attending military doctors, a medical condition may make them incapable of performing duty.

 6. Prior to reaching the determination that it was not in the interest of justice to excuse the failure to timely file, the Board looked at the entire file. It was only after all other aspects had been considered and it had been concluded that there was no basis to recommend a correction of the records that the Board considered the statute of limitations. Had the Board determined that an error or injustice existed it undoubtedly would have recommended relief in spite of the failure to submit the application within the 3 year time limit. The Board has never denied an application simply because it was not submitted within the required time.

 7. The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

8. In view of the foregoing, there is no basis for granting the applicant's request.

 DETERMINATION : The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.


 BOARD VOTE :
GRANT

GRANT FORMAL HEARING

 DENY APPLICATION




                                                      Loren G. Harrell
                                                      Director

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