MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:


         BOARD DATE: 23 OCTOBER 2001
         DOCKET NUMBER: AR2001058990


         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Ms. Shirley L. Powell		Chairperson
Mr. Allen L. Raub		Member
Mr. Thomas E. O’Shaughnessy, Jr.		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether the application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: Physical disability retirement.

The applicant states that he was not properly compensated for disabilities during a Medical Evaluation Board (MEB). He received an improper rating for the disabilities of his left shoulder and left knee, and did not receive a rating from the Army for his left knee. Had his disabilities been properly rated, he would have received a physical disability retirement instead of a physical disability discharge. Furthermore, his service connected disability for steatoheapatitis, which warranted physical disability retirement, was not considered [by the MEB].

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.

COUNSEL CONTENDS: Counsel supports the applicant’s request, asking for the Board’s careful and sympathetic consideration of all the evidence used in rendering a fair and impartial decision.

EVIDENCE OF RECORD: The applicant's military records show:

The applicant enlisted in the Army for four years on 8 April 1988 and served on continuous active duty until his discharge. The applicant had service in Germany and in Saudi Arabia; and has been awarded the Bronze Star Medal, the Army Achievement Medal, the Kuwait Liberation Medal, the Southwest Asia Service Meal with three bronze service stars, the Good Conduct Medal, and the Combat Infantryman Badge.

A 30 November 1990 laboratory test shows that the applicant had a high level on his uric acid test, AST/SGOT test (which the applicant highlighted), and his LDH test.

On 13 October 1992 the applicant was determined to be overweight and was placed on the overweight program. He was removed from that program on 23 November 1992.

On 19 October 1992 the applicant was awarded a physical profile serial of 1 P3 1 1 1 1 because of left shoulder pain, and was pending evaluation by a MEB.

On 10 February 1993 the Total Army Personnel Command (PERSCOM) issued instructions to the applicant’s command to discharge the applicant under the provisions of Army Regulation 635-40 because of physical disability. The instructions indicated that he was authorized a disability rating of 10 percent, and that the disability did result from a combat-related injury. He was discharged on 25 February 1993. He had 4 years, 10 months, and 18 days of service. He received severance pay of $12,132.00.

In a 9 March 2000 statement an individual from the VA Medical Center at Louisville stated that the November 1990 lab workup showed elevated liver enzymes and he opined that it was as likely as not that was the start of his current liver condition, steatoheapatitis; and that a liver biopsy performed in June 1998 found marked liver damage.

A 1 June 2000 decision by the Board of Veterans’ Appeals awarded the applicant service connection for steatoheapatitis, a 20 percent disability rating for his left knee disability, and an effective date of 23 March 1993 for a grant of service connection for exercise-induced asthma. Service connection for a right ankle disability and for a skin disorder was denied.

In a 15 June 2000 rating decision the VA continued the applicant’s 20 percent rating for his left knee disability, granted him a 10 percent disability rating for exercise-induced asthma effective 23 March 1993, and granted him a 30 percent rating for steatohepatitis with gastritis effective 3 March 1998.

In a 30 January 2001 statement a doctor at the Louisville VA Medical Center stated that the applicant had consistently shown elevated liver enzyme levels on multiple liver function tests, and that the first time the elevated liver enzymes were documented was in November 1990 while he was on active duty. He went on to say that the applicant’s symptoms were consistent with hepatitis, and that it was possible that he had a rare form of hepatitis that was still undiagnosed.

On 8 February 2001 the VA increased the applicant’s disability rating for steatoheapatitis with gastritis from 30 percent to 100 percent and stated that he was entitled to special monthly compensation based on being housebound. The VA informed him, however, that since a likelihood of improvement existed, the assigned evaluation was not considered permanent and was subject to a future review examination.

With his request, the applicant submitted a copy of a document from the American Liver Foundation concerning nonalcoholic steatohepatitis.

Army Regulation 635-40 establishes the Army physical disability evaluation system and sets forth policies, responsibilities, and procedures that apply in determining whether a soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. It provides for medical evaluation boards, which are convened to document a soldier’s medical status and duty limitations insofar as duty is affected by the soldier’s status. A decision is made as to the soldier’s medical qualifications for retention based on the criteria in AR 40-501, chapter 3. If the MEB determines the soldier does not meet retention standards, the board will recommend referral of the soldier to a Physical Evaluation Board (PEB).

Physical evaluation boards are established to evaluate all cases of physical disability equitability for the soldier and the Army. It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of soldiers who are referred to the board; to evaluate the physical condition of the soldier against the physical requirements of the soldier’s particular office, grade, rank or rating; to provide a full and fair hearing for the soldier; and to make findings and recommendation to establish eligibility of a soldier to be separated or retired because of physical disability.

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 entitled to basic pay.

Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rated at less than 30 percent.

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.

The applicant’s MEB and PEB are not available; nonetheless, there is no evidence, nor has the applicant or counsel provided any, to indicate that his discharge with severance pay in 1993 was in error or unjust and as such there is no basis correct his record to grant physical disability retirement.

DISCUSSION: The alleged error or injustice was, or with reasonable diligence should have been discovered on 25 February 1993, the date the applicant was discharged. The time for the applicant to file a request for correction of any error or injustice expired on 25 February 1996.

The application is dated 30 May 2001 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. Prior to reaching this determination the Board looked at the applicant’s entire file. It was only after all aspects of his case had been considered and it had been concluded that there was no basis to recommend a correction of his record that the Board considered the statute of limitations. Had the Board determined that an error or injustice existed it would have recommended relief in spite of the applicant’s failure to submit his application within the three-year time limit.

BOARD VOTE:

________ ________ ________ EXCUSE FAILURE TO TIMELY FILE

________ ________ ________ GRANT FORMAL HEARING

__SLP __ __ALR _ __TEO __ CONCUR WITH DETERMINATION

Carl W. S. Chun
Director, Army Board for Correction
         of Military Records

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INDEX

CASE ID	AR2001058990
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20011023
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	142.00
2.	108.00
3.	177
4.
5.
6.