APPLICANT REQUESTS: In effect, correction of his military records to reflect disability separation and entitlement to separation pay. He states he did not receive a discharge physical and was not recommended for [a] medical board in spite of being on medication.
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:
The applicant, while a member of the USAR, underwent a physical examination in June 1985. He informed the attending physician that he had to repeat his initial physical examination for entrance into the Army because [his] blood pressure was high. The physician, however, concluded the applicant was medically qualified for USAR retention and issued a physical profile of 1-1-1-1-1-1.
On 15 April 1986 he entered active duty under a 3 year enlistment contract. A physical examination conducted in February 1986 found him medically qualified for entrance on active duty with a physical profile of 1-1-1-1-1-1. The applicant completed training as a medical specialist prior to being assigned to Walter Reed Army Medical Center in July 1986.
In May 1987 he complained to medical personnel of lightheadedness and headaches. He was advised to restrict his salt intake, maintain a good exercise program and return to have his blood pressure checked for several days.
His service medical records indicate he was seen by medical personnel in May 1988 for hypertension. The examining physician noted the applicants examination was normal.
On 15 February 1989 the applicant indicated he wished to undergo a separation medical examination in preparation for his scheduled separation date. The option statement, which the applicant completed, stated that he understood that he was not required to undergo a medical examination for separation and that it was his responsibility to schedule his own appointment.
While there is no evidence in available records that the applicant completed a separation physical examination they do contain a statement that his medical records had been reviewed and a determination made that a medical examination for separation was not required.
On 14 April 1989, at the conclusion of the applicants enlistment contract, he was separated and transferred to an Army Reserve unit.
Subsequent to the applicants separation, in 1991, the applicant was awarded a 10 percent disability rating by the VA for hypertension. He was ultimately released from his Reserve unit for nonparticipation.
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, provides 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.
DISCUSSION: The alleged error or injustice was, or with reasonable diligence should have been discovered on 14 April 1989, the date of discharge. The time for the applicant to file a request for correction of any error or injustice expired on 14 April 1992.
The application is dated 11 December 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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