APPLICANT REQUESTS: In effect, an increase in his physical disability rating.
APPLICANT STATES: In effect, that he would like an increase in disability rating because his eye sight has recently deteriorated.
EVIDENCE OF RECORD: The applicant's military records show:
He was born on 2 November 1945. He completed 12 years of formal education. On 25 January 1965, he was inducted into the Army of the United States for 2 years. He completed the required training and was awarded military occupational specialty (MOS) 16E10 (Hawk Missile Fire Control Crewmember). The highest grade he achieved was pay grade
E-5.
On 11 January 1967, while assigned to a unit in Germany, the applicant was involved in an automobile accident. He sustained multiple lacerations to the face, both eyelids were lacerated, the cornea of the left eye was lacerated and laceration to the right ear. The applicant was referred a Medical Evaluation Board (MEBD) due of the extent of his injury .
On 23 September 1967, the applicant appeared before a MEBD. The MEBD diagnosed the applicant as having Glaucoma, left eye secondary to perforating wound. The MEBD referred the applicant to a Physical Evaluation Board (PEB). The applicant concurred with the MEBDs findings and recommendation.
On 29 November 1967, the PEB diagnosed the applicant as being blind in one eye and having light perception only in the other eye. The PEB found the applicant physically unfit for further military service and recommended that he be placed on Temporary Disability Retired List (TDRL) at
30 percent. The applicant concurred with the PEBs findings and recommendation.
On 5 March 1968, the applicant was released from active duty in pay grade E-5, by reason of physical disability. The following day, the applicant was placed on TDRL with a disability rating of 40 percent. He served 3 years, 1 month and 9 days of honorable active service and was awarded the National Defense Service Medal.
On 1 April 1968, the Veterans Administration awarded the applicant a 30 percent service connected disability rating.
On 29 June 1969, the applicant was removed from the TDRL and placed on permanent retirement at 50 percent for blindness in one eye and having light perception only in the other eye.
On 1 May 1995, the applicant filed an appeal to this Board for correction of his military records.
On 18 September 1996, the VA increased the applicants rating to 50 percent.
The Commander, USA Physical Disability Agency, in a comment (COPY ATTACHED) to this Board, found no evidence of error or injustice and recommended that the records not be changed.
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.
Title 10, United States Code, section 1202, provides for the placement of a member on the Temporary Disability Retired List when the disability may be permanent. Placement on the Temporary Disability Retired List requires that the member meet the criteria of Title 10, United States Code, section 1201.
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.
DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion, it is concluded:
1. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy the aforementioned requirement.
2. The evidence of record shows that the applicant's disability was properly rated in accordance with the VA Schedule for Rating Disabilities.
3. The evidence of record also shows that the applicant concurred with the determination of the PEB and only became dissatisfied with the PEBs determination after his condition deteriorated.
4. The applicant presented no medical evidence of any error or injustice in the PEBs adjudication of his case.
5. 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.
6. The foregoing is supported by the opinion from the Physical Disability Agency.
7. Therefore, there is no basis for granting the applicants 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
Karl F. Schneider
Acting Director
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