APPLICANT REQUESTS: That his discharge from the Regular Army at the expiration of his term of service (ETS) be corrected to a medical retirement. He states that he was not told that he could be medically retired when he was on active duty. However, when he was released from active duty he had immediately applied for a VA disability, and was awarded a 30 percent rating.
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 personnel and medical records show:
He enlisted for 2 years on 9 June 1972 in pay grade E-1. He was awarded the military occupational specialty of clerk typist and was promoted to pay grade E-3.
On 26 September 1972 the applicant went on sick call complaining of a recurrent dislocation of his left shoulder. He reported an 8-year history of recurrent dislocation of his shoulder, starting with an injury he had in 1964. The applicant reported having had his shoulder dislocated on or about 40 times since his injury. A medical evaluation board was then convened which determined that the applicants condition was disqualifying under enlistment standards but was not disqualifying under retention standards.
He continued to serve despite that condition and completed his term of enlistment. Accordingly, on 7 June 1974 he was honorably released from active duty and transferred to the USAR Control Group to complete his military service obligation.
Army Regulation 635-40 provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board. Those members who do not meet medical retention standards will be referred to a physical evaluation board (PEB) for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition. For example, a noncommissioned officer who receives above average evaluation reports and passes Army Physical Fitness Tests (which have been modified to comply with the individuals physical profile limitations) after the individual was diagnosed as having the medical disqualification would probably be found to be fit for duty. The fact that the individual has a medically disqualifying condition does not mandate the persons separation from the service. Fitness for duty, within the perimeters of the individuals grade and military specialty, is the determining factor in regards to separation. If the PEB determines that an individual is physically unfit, it recommends the percentage of disability to be awarded which, in turn, determines whether an individual will be discharged with severance pay or retired.
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 performing active or inactive (weekend drill) duty.
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.
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 7 June 1974, the date he was separated. The time for the applicant to file a request for correction of any error or injustice expired on 7 June 1977.
The application is dated 28 August 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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