APPLICANT REQUESTS:  Correction of his military records to reflect disability retirement.  He states he should have been medically retired from the military when he was released from active duty in 1991.  He states that he is suffering from medical conditions (right ankle and shoulder pain and asthma) for which he received treatment while on active duty.  He notes he is receiving VA disability compensation for those conditions.  He states if he had been properly counseled “concerning military retirement because of [his] medical conditions” he would not have agreed to be discharged but would have insisted on being medically retired.

PURPOSE:  To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.

EVIDENCE OF RECORD:  The applicant's military records show:

He initially entered active duty in April 1979.  There is no indication he suffered from any medical conditions which impeded the successful completion of his 3 year enlistment contract.  He was released from active duty on 23 April 1982 at the completion of his enlistment.

It appears that the applicant was a member of the Army Reserve following his release from active duty and underwent several periodic medical examinations; all of which found him medically qualified for continued service.  His service medical records indicate he complained to medical personnel in 1985 that his ankle hurt and related that he had originally hurt his ankle in 1984.

On 27 December 1990 the applicant was ordered to active duty in support of Operation Desert Shield/Storm.  An initial medical evaluation, conducted on 3 January 1991, noted the applicant complained of a 10 year history of asthma and “complains of periodic wheezing over last several weeks.”  The evaluating physician recommended the applicant be declared “nondeployable” and re-evaluated in 2 weeks.

Records indicate the applicant was ultimately determined to be deployable and arrived in Southwest Asia on 8 February 1991.  He returned to the United States in April 1991 “because of problems with asthma and bronchitis.”  While being evaluated at Lyster Army Hospital, Fort Rucker, Alabama for his asthmatic condition the applicant also complained of shoulder pain, which he stated commenced while he was in Saudi Arabia.  A physical examination, conducted on 1 April 1991 concluded the applicant was medically qualified for “redeployment” and issued a physical profile of 1-1-1-1-1-1.

On 14 June 1991 the applicant was issued a temporary physical profile for bursitis in his right shoulder.  The profile expired on 14 July 1991 and there is no indication it was renewed.

In July 1991 an evaluating physician noted, in spite of the applicant’s numerous medical complaints, that he “medically does meet” retention standards of Army Regulation 40-501.  He noted, however, “poor patient compliance” and that the applicant was a “manipulator [and] malingering.”

On 8 August 1991, at the expiration of his term of service, the applicant was released from active duty.  It is unclear if he returned to his Reserve unit or if he currently has a some Reserve component association.

Documents contained in the applicant’s VA file indicate by 1996 the applicant was receiving a combined service connected disability rating of 80 percent (asthma was independently rated at 60 percent, his right shoulder condition at 30 percent, and his right ankle condition at 
10 percent).  Previously, as of 9 August 1991, the applicant’s asthma and ankle conditions were independently rated at only 10 percent.  His right shoulder rating stemmed from an August 1996 rating determination.

Army Regulation 40-501, paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.

Army Regulation 40-501, at paragraph 3-3a, provided, in pertinent part, that performance of duty despite an impairment would be considered presumptive evidence of physical fitness. 

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 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.  Furthermore, 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.

Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.

In the processing of this case, a staff advisory opinion (COPY ATTACHED) was provided by the medical consultant to the ABCMR.  It contains no information, advice or recommendation which would constitute a basis for granting the relief requested or for excusing the applicant's failure to timely file.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 8 August 1991, the date the applicant was released from active duty. The time for the applicant to file a request for correction of any error or injustice expired on 8 August 1994.
The application is dated 20 January 1995 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.

DETERMINATION:  The subject application was not submitted within the time required.  The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.

BOARD VOTE:

                      EXCUSE FAILURE TO TIMELY FILE

                      GRANT FORMAL HEARING

                      CONCUR WITH DETERMINATION




		Karl F. Schneider
		Acting Director