APPLICANT REQUESTS: That his discharge for physical disability, rated 20 percent disabled, be corrected to a medical retirement. He states that he has been rated 30 percent disabled by the VA effective the date of his discharge.
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 10 June 1987, while serving on active duty in the Regular Army in pay grade E6, at approximately 0200 hours, the applicant was hit by an oncoming car while he was traveling by motorcycle. He was initially treated at a civilian hospital for multiple fractures of his left leg and was then transferred to a military medical treatment facility.
Neither the applicants military medical records nor his VA medical records were provided to the Board.
On 13 April 1988 the applicant was honorably discharged for physical disability and was given $47,932.80 in severance pay. He had 13 years, 3 months and 8 days of active service during that period and had 2 years, 11 months and 15 days of prior active service.
Army Regulation 635-40 provides that those members who do not meet medical retention standards will be referred to a physical evaluation board to determine whether they are physically unfit to perform their duties and if found unfit, to determine the percentage of disability to be awarded. This regulation also provides that only unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.
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, 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.
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 13 April 1988, the date he was discharged. The time for the applicant to file a request for correction of any error or injustice expired on 13 April 1991.
The application is dated 17 June 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
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