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ARMY | BCMR | CY1990-1993 | 9210632
Original file (9210632.rtf) Auto-classification: Denied
APPLICANT REQUESTS: In effect, reconsideration of his previous request to correct his records by showing that he was discharged for physical disability retirement.
APPLICANT STATES : That he has been denied post service benefits because he was not on active duty or on the Temporary Disability Retired List (TDRL) for at least six months prior to discharge.

 NEW EVIDENCE OR INFORMATION : Incorporated herein by reference are military records which were summarized in a memorandum f consideration (MOC) prepared to reflect the Board's original consideration of his case on 11 August 1993 (COPY ATTACHED).

The applicant submits a statement of disability by the Social Security Administration and a union request for civilian employment and related medical records. He also submits the basic request for appeal of the VA’s previous denial of service connection for his back problem. Medical reports submitted by the applicant in the appeal show some treatment for a low back condition, however, they do not relate that the condition had any relationship to military service and no evidence was presented showing a low back condition of service onset. One report contains a doctor’s statement that he has seen the applicant and that he was treated with physical therapy for chronic low back pain since February 1997. Additionally, he submits photo copies of some service medical record pages.

Included in the service medical record pages he submits is a 22 July 1970 disposition form in which he acknowledged that he would be separated because he had not met procurement medical standards, that he would not be eligible for physical disability separation retirement or severance pay and that he could stay on active duty if he so chose. He requested discharge.

 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. By the applicant’s own admission in the separation processing his back problems existed prior to entry into the service (EPTS).

2. The evidence submitted to the VA did not relate his current treatment to his period of active duty. Furthermore, the post service medical evaluations submitted by the applicant are based upon a medical history provided by him and are irrelevant to the EPTS issue. The decision by the Social Security Administration some 20 plus years after the discharge is irrelevant as are his civilian work restraints.

 3. 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.
4. 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.

5. 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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