APPLICANT REQUESTS: In effect, that his discharge for medical unfitness with severance pay be corrected to a disability retirement. He states that he has been rated 70 percent disabled by the VA which proves that he should have been 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:
On 23 April 1951 he was inducted into the Army. He served as an armory foreman and was promoted to corporal.
On 16 February 1952, while serving in Korea, he was hospitalized for severe avulsion (the tearing away of a part of a structure) of both inner thighs, lacerations of his right thumb, and multiple, small penetrating wounds to both hands. Those wounds were the result of an accidental explosion of an American 105 millimeter howitzer shell.
A Medical Evaluation Board (MEB), was conducted and determined that the applicant suffered from avulsion, severe, both inner thighs, caused by shrapnel from a shell which accidentally exploded, with coinciding weakness and tightening of his extremities; missile wound, penetrating his right thumb, both thighs and right leg; old malaria traces, proven by blood smear; and cicatrix (scar) of both thighs, not disabling.
On 4 August 1952 a Physical Evaluation Board (PEB) convened and determined that he was physically unfit and recommended that he be discharged with severance pay, rated 20 percent disabled.
The recommendation was approved and the applicant was honorably discharged with severance pay on 25 October 1952 due to physical disability, rated 20 percent disabled.
Subsequent to his separation, he was granted a combined service connected disability rating of 70 percent by the VA, 40 percent for wound, right thigh with partial paralysis of cutaneous nerves; 40 percent for wound, left thigh with partial paralysis of cutaneous nerves; 10 percent for wound, right thumb and hand; zero percent for malaria; zero percent for wounds of both forearms and left foot and hand, slight, and scars of abdomen and lumbar areas with acne; 10 percent for osteoarthritis of his left knee; 10 percent for osteoarthritis of his lumbar spine with disc degeneration of L4-L5; and zero percent for left calcaneal (heal) spur.
Title 10, United States Code, section 1203, provides for the physical disability separation (discharge) of a member who has less than 20 years service and a disability rated at less than 30 percent.
Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.
Title 38, United States Code, sections 310 and 331, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish error or injustice in the Army rating. An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service. The VA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's employability. Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at a different disability rating based on the same impairment. 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. Confusion arises from the fact that different rating systems are used by the Army and the DVA. While both use the Veterans Administration Schedule for Rating Disabilities (VASARD), not all of the general policy provisions set forth in the VASARD apply to the Army. The Army rates only conditions determined to be physically unfitting, thus compensating the individual for loss of a career; while the DVA may rate any service connected impairment, in order to compensate the individual for loss of civilian employability.
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.
DISCUSSION: The alleged error or injustice was, or with reasonable diligence should have been discovered on 25 October 1952, the date he was discharged. The time for the applicant to file a request for correction of any error or injustice expired on 25 October 1955.
The application is dated 16 April 1993 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
ARMY | BCMR | CY2008 | 20080012532
That is why the VA can rate the applicant for having medical conditions even though those same conditions did not make him unfit to perform his military duties. The PEB found the applicant to be unfit under VASRD code 8626 due to chronic neuritis in his left leg, including wounds to the left proximal medial thigh, and recommended he be discharged with severance pay with a 20 percent disability rating. If he should ask the VA to rate him for PTSD, and if he received even just a 10 percent...
ARMY | BCMR | CY2013 | 20130018063
His complete military records are not available to the Board for review. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rated at less than 30 percent. There is no available evidence and he did not provide sufficient evidence showing he was found unfit to perform his military duties at the time.
ARMY | BCMR | CY2001 | 2001063539C070421
With the disability allowed for his paralysis of his ulnar digital nerve which produces a 40 percent loss of sensation to the area of his small finger, he requested that his hand impairment be considered on the basis of limitation of motion to three fingers of his right (major) hand, and that he be found physically unfit for further service by a disability percentage of 30 percent or more. The Army must find that a service member is physically unfit to reasonably perform his or her duties...
AF | PDBR | CY2013 | PD-2013-01798
The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the VASRD standards to the unfitting medical condition at the time of separation. The General Surgeon noted the shrapnel wounds were healing well and a Physical Medicine Specialist documented right anterolateral thigh numbness, sharp pain, and weakness. RECOMMENDATION : The Board, therefore, recommends that there be no re-characterization of the...
AF | PDBR | CY2009 | PD2009-00564
The VA examiner noted that there was nerve damage to the Sciatic Nerve. In the matter of the scars, abdomen, from surgical procedure to repair the gunshot wound injuries, resection of the transverse colon, liver repair, shoulder dislocation, incompletely healed, and hearing loss conditions the Board unanimously determined that it cannot recommend any findings of unfit for additional rating at separation. In the matter of the bilateral tinnitus, lumbar strain condition, bilateral pes...
ARMY | BCMR | CY2004 | 2004103221C070208
The Rating Decision noted that a 40 percent rating (for the applicant's hip condition) was granted because the physical examination showed he could flex his hip only 10 degrees. It is also noted that the Army rated the applicant's knee condition in May 1994 at 10 percent whereas the VA, even after his numerous complaints of knee problems after the PEB, initially awarded a zero percent rating for his knee condition. There is no evidence that the applicant's ankle condition or injury to his...
AF | PDBR | CY2010 | PD2010-00099
The CI was found to have injuries mainly to his legs, more severe on the right than the left leg; however, the left leg still sustained IED injury. The Board determined therefore that neither tinnitus nor the right elbow condition was subject to service disability rating. Exhibit C. Department of Veterans' Affairs Treatment Record.
ARMY | BCMR | CY2013 | 20130021072
A DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 10 July 2012, shows an informal PEB reviewed the applicant's MEB proceedings, along with his medical records, a. Once a Soldier is determined to be physically unfit for further military service, a percentage rating is applied to the unfitting condition from the VASRD. b. Consequently, due to the two concepts involved, an individual's medical condition(s), although not considered physically unfitting for military service at...
ARMY | BCMR | CY2009 | 20090001022
Effective 1 January 2006, the U.S. Army was authorized to award the ROK-KWSM to eligible U.S. Army veterans or their next of kin. The letter from VA provided by the applicant and the entry on the Korean Casualty Roster are accepted as sufficient evidence as a basis to correct his DD Form 214 to show award of the Purple Heart. _________XXX________________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of...
AF | PDBR | CY2009 | PD2009-00368
His right hand injury included an open comminuted fracture of his second metacarpal, and a severed flexor tendon of his thumb. The Board recommends that the CI’s prior determination be modified as follows and that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective as of the date of his prior medical separation. Exhibit C. Department of Veterans' Affairs Treatment Record.