| Mr. Carl W. S. Chun | Director | |
| Ms. Deborah L. Brantley | Senior Analyst |
| Mr. Arthur A. Omartian | Chairperson | |
| Mr. Lester Echols | Member | |
| Mr. John T. Meixell | Member |
APPLICANT REQUESTS: In effect, disability retirement or separation. He states that he was given a permanent profile while in the military and that his medical problem never went away. He notes that he cannot function properly. In support of his request he submits a copy of his 1971 permanent profile.
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 16 November 1967and had successful tours of duty in Vietnam and Korea. In April 1971 he was issued a permanent "P3" profile for "chronic pruritis ani." (Pruritis ani, or anal itching is one of the most common complaints related to anal pathology. Itching tends to occur in and just around the anus. It is frequently more pronounced at night.) His profile prohibited assignment to any unit where daily shower facilities were not available.
The applicant continued to serve successfully until 24 December 1971 when he was released from active duty under a program which permitted the early separation of soldiers returnee from overseas. The applicant was released with an honorable characterization of service.
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.
There is no evidence, nor has the applicant provided any, which indicates that he was unable to perform his military duties as a result of his medical condition. There is no basis for a disability separation or retirement. As a matter of information, however, the applicant should be aware that 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 24 December 1971, the date the applicant was released from active duty. The time for the applicant to file a request for correction of any error or injustice expired on 24 December 1974.
The application is dated 20 August 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
__AAO__ __LE____ __JTM _ CONCUR WITH DETERMINATION
| CASE ID | AR2001062433 |
| SUFFIX | |
| RECON | YYYYMMDD |
| DATE BOARDED | 20011127 |
| 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. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
AF | PDBR | CY2013 | PD-2013-02780
The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards to the unfitting medical condition at the time of separation. Post-Separation)ConditionCodeRatingConditionCodeRatingExam Pruritus Ani With Current Fissures Formation73370%Pruritus Ani7337-733610%20070207Other x 0 (Not In Scope)Other x 5 RATING: 0%RATING: 50% *Derived from VA...
ARMY | BCMR | CY2004 | 2004104118C070208
He had surgery to correct his condition. On 17 October 2003 the applicant had surgery at St. John's Mercy Medical Center in St. Louis for chronic anterior anal fissure and left lateral hemorrhoid. His statements indicating that he was not deployed on two occasions indicate that the applicant is in the Army Reserve, as he states in his application to the Board, proof positive that he is still medically fit for active military service, despite his nondeployable status.
AF | PDBR | CY2012 | PD2012-00884
The CI underwent a Limited Duty (LIMDU) Board in October 2001 approximately 15 months prior to separation in which the examiner noted that the CI was still complaining of hives being continuous and daily with some urticaria noted on her arms and a requirement of antihistamine medications. The Board reviewed the criteria for 7825 and considered the CI’s history of chronic urticaria and the need for daily medications to control this condition. After due deliberation in consideration of...
AF | PDBR | CY2012 | PD2012-00158
The PEB adjudicated the chronic hand and foot dermatitis condition as unfitting, rated 10% with application of the Veteran’s Affairs Schedule for Rating Disabilities (VASRD). The chronic hand and foot dermatitis condition requested for consideration meets the criteria prescribed in DoDI 6040.44 for Board purview, and is addressed below. The older ratings were based on a judgment about the degree of exfoliation, exudation or itching; or the presence of disfigurement, systemic or nervous...
ARMY | BCMR | CY2010 | 20100009954
Application for correction of military records (with supporting documents provided, if any). His military records contain a Report of Medical Examination, dated 28 December 2005, for the purpose of his retention, that shows a temporary profile was recommended until a cardiac evaluation was completed. An SF 507 (Medical Record), dated 10 May 2006, shows he was advised on 16 March 2006 of his abnormal EKG and additional information was requested.
ARMY | BCMR | CY2004 | 040005488C070208
He complained of low back pain on 21 May 1987, stating that the pain went back 7 years. A 22 December 1994 report of medical examination indicated that the applicant was medically qualified for retention with a physical profile of 1 1 3 1 1 1. Notwithstanding the applicant’s various medical conditions and ailments that he had over his military career spanning more than 28 years, he has not provided any evidence to indicate that he was physically unfit for retention.
ARMY | BCMR | CY2004 | 040008934C070208
An 8 October 1968 report of medical examination shows that the applicant was medically qualified for separation with a physical profile of 1 1 3T 1 1 1. The evidence shows that the applicant was treated for two months at Ireland Army Hospital at Fort Knox, after which medical personnel felt that his condition was such that he could be discharged from the hospital. At the time of the separation physical examination, competent medical authority determined that the applicant was then...
AF | PDBR | CY2011 | PD2011-00773
The VA rated the CI at 30% and specified “when taken as a whole, the evidence (particularly the records in the service medical records which show frequent exacerbations of this condition) that this condition is best classified as moderately severe.” The VA combined the CI’s GI symptoms of Crohn’s disease with Crohn’s related fistula-in-ano, GERD, and corrected anemia IAW §4.114 Schedule of Ratings—Digestive System. The Board directs its attention to its rating recommendations based on the...
ARMY | BCMR | CY2011 | 20110017594
The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The applicant completed two periods of active service. The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before that service member can be medically separated or retired.
AF | PDBR | CY2013 | PD-2013-01062
Following nonconcurrence/rebuttal, the US Army Physical Disability Agency reaffirmed the FPEB’s rating and the CI was medically separated. Given the CI’s symptoms necessitating wearing of pad continuously as well as soft stool occurring at other than bowel movements, the CI’s disability picture more nearly approximated that envisioned by the disability picture of the 30% rating level. In the matter of the rectum and anus impairment condition and IAW VASRD § 4.114, the Board unanimously...