APPLICANT REQUESTS: Disability separation or retirement. He states at the time of his discharge he was unable to perform his duties because of burns he sustained to his legs while on active duty and accepted a general discharge without realizing the implications. He states he was awarded a 40 percent VA disability rating but it was reduced to 10 percent.
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:
He entered active duty on 15 November 1973. Although his service medical records do not contain the specific date of his burn injury the applicant noted in other documents in his file that he was injured while undergoing basic training at Fort Polk, Louisiana. His VA records state that a large can of lighter fluid was spilled and accidentally caught on fire, burning [the applicants] medial aspect of both thighs, knees and legs.
The applicant successfully completed basic and advanced individual training and was assigned to Germany as a wheel vehicle mechanic in July 1974.
In August 1975 the applicants unit commander initiated action to administratively separate the applicant under the expeditious discharge program for failing to meet acceptable standards for continued military service. The commander noted the applicant had held several jobs since his arrival at the unit and not performed satisfactorily in any of them. He was punished three times under Article 15, UCMJ, and counseled on numerous occasions by members of his chain of command. The unit commander indicated he intended to
recommend that the applicant receive a general discharge.
The applicant acknowledged the proposed separation action, waived his right to submit statements on his own behalf, and indicated he understood the ramifications of a general discharge.
The recommendation was approved and on 29 August 1975 the applicant was released from active duty with a general discharge. He was serving in pay grade E-2 at the time and had 1 year and 15 days of creditable service.
Subsequent to his separation, in November 1975, the applicants request for disability compensation from the VA was denied. In February 1986 the applicant was granted a 40 percent service connected disability rating by the VA for burn scars. The rating was reduced to 10 percent in 1988.
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, provided, 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.
In the processing of this application an advisory opinion was provided by the Boards medical advisor. He noted there was no evidence to support the applicants request for a medical separation.
DISCUSSION: The alleged error or injustice was, or with reasonable diligence should have been discovered on 29 August 1975, the date of discharge. The time for the applicant to file a request for correction of any error or injustice expired on 29 August 1978.
The application is dated 3 June 1996 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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