RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            27 MAY 2004
      DOCKET NUMBER:   AR2003096779


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

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Ms. Deborah L. Brantley           |     |Senior Analyst       |


  The following members, a quorum, were present:

|     |Mr. Melvin Meyer                  |     |Chairperson          |
|     |Ms. Regan Smith                   |     |Member               |
|     |Mr. Thomas O'Shaughnessy          |     |Member               |

      The applicant and counsel if any, did not appear before the Board.

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, disability retirement in lieu of
disability separation.

2.  The applicant states, in effect, that he received a 20 percent
disability rating from the Army based on an “unknown neurological problem.”
 He states that he “had to leave [his] military career of ten years to seek
medical care” and that one year after leaving the Army his primary care
physician diagnosed his problem as a brain tumor.  He maintains that
because no brain MRI (Magnetic Resonance Imaging) was done while he was in
the Army which ultimately resulted in his being “misdiagnosed by the Army
and delayed treatment.”  He states that as a result he has spent thousands,
lost hearing on the left side, facial numbness, and facial partial
paralysis.

3.  He states that he was not aware of the “severity of” his problem and
thought that he “had a mental illness because the Army could not find [his]
problem.”  He states that he left the Army in shame and loss and that “it
took all this time to find the problem, try to fix it, and have further
problems arise.”

4.  In a subsequent application, the applicant noted that the Department of
Veterans Affairs “upgraded” his disability to 40 percent and he is only
asking to “be able to get base privileges back.”  He states that he is not
seeking financial compensation, but as a career military person he misses
“being able to visit the bases….”

5.  The applicant provides copies of several civilian health care
examinations, copies of his Medical Evaluation Board, and a copy of his
2000 Department of Veterans Affairs rating document.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an injustice which occurred
on
15 July 1999.  The application submitted in this case is dated 18 August
2003.

2.  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.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitation if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.



3.  Records available to the Board indicate that the applicant was an
enlisted member of the United States Air Force between January 1980 and
December 1987.  In May of 1997 he received his DDS (Doctorate of Dental
Science) and accepted an appointment as a United States Army Reserve dental
corps officer.  On 27 June 1997 he entered active duty in the rank of
captain and was assigned to Fort Knox, Kentucky as a general dentist.

4.  According to his Medical Evaluation Board (MEB), conducted on 6 May
1999, the applicant was found to be suffering from “numbness, weakness,
lack of coordination, and sensory disturbance of left upper extremity.”
The MEB summary noted that the applicant had been to the “Neurology Clinic
for multiple consultations regarding left upper extremity pain and
weakness” and that his “symptoms initially developed several months ago, in
July 1998.”

5.  The summary noted that the applicant underwent an MRI scan to “rule-out
a cervical herniated nucleus pulposus” and was sent to “Physical Therapy
and Occupational Therapy without much improvement of his symptoms.”  The
applicant, however, “continued to make slight improvements in his symptoms
until October of 1998, when again he suffered very acute pain in his left
upper extremity following lifting his infant.”  The applicant was sent for
consultations at Walter Reed Army Medical Center where “an unremarkable
negative EMG and nerve conduction studies” were found and “suggested
Physical Medicine and Rehabilitation consultation.”  Ultimately it was
concluded that the applicant showed “left upper extremity weakness with
diminished strength to the left ADQ [upper quadrant] and interossei, has a
neurological examination whose location could not be further localized with
EMG [Electromyography] and nerve conduction studies, nor with MRI imaging.”
The MEB recommended the applicant be referred to a Physical Evaluation
Board (PEB).

6.  The applicant concurred with the findings and recommendation of the MEB
and indicated that he did not wish to remain on active duty.

7.  An informal PEB found that the applicant’s condition prevented
“reasonable performance of duties required by grade and military specialty”
and recommended separation with entitlement to disability severance pay.
The PEB rated his condition at 20 percent.  The applicant concurred with
the findings and recommendation of the PEB and waived his right to a formal
hearing.  The PEB findings and recommendation were approved on 14 May 1999
and on 15 July 1999 the applicant was honorably discharged by reason of
physical disability.  According to documents from the Department of
Veterans Affairs, the applicant received more than $69,000.00 in disability
severance pay.




8.  In June 2000 the Department of Veterans Affairs found the applicant’s
“mild disc bulges at C4-5 and C-6-7 with numbness, weakness, lack of
coordination, and sensory disturbance of left upper extremity” was 20
percent disabling.

9.  An 8 August 2001 “MRI Brain without and with contrast” conducted at the
American Medical Imaging in Henderson, Nevada, showed a “peculiar 2 cm
ovoid intra-cranial extra-axial cystic mass in the left cerbello-pontine
angle adjacent to the left seventh and eighth cranial nerve complex,
causing slight mass effect upon the surrounding structures.”  The
evaluating physician noted that the “lesion may represent an incidental
finding, unrelated to the patient’s symptoms” but recommended a
neurosurgical consultation.  Beyond the “peculiar 2 cm cystic mass” the MRI
impression was a “normal brain.”

10.  In a July 2003 statement from the applicant’s family physician, the
family physician noted that in October 2001 the applicant underwent surgery
to remove the cystic mass and after surgery his “left hand numbness went
away.”  A February 2002 “post-op MRI” noted an “abnormal signal intensity
throughout the mastoid air cells on the left suggesting Mastoiditis, but
there was no evidence of a space occupying mass.”  According to the
Dictionary of Medical Terms, Mastoiditis is an inflammation within the
mastoid bone, which is the bone immediately behind the ear.  Mastoiditis is
usually caused by an infection.

11.  By 29 May 2002 the family physician noted that a physician who had
reviewed his various MRI’s told the applicant that “everything was fine.”
However, the family physician indicated that “unfortunately, due to the
brain surgery, the patient has a permanent total loss of hearing in the
left ear and would still experience some numbness in the left hand and left
side of face and occasional headaches.”

12.  Although the applicant indicated that he now has a 40 percent
disability rating from the Department of Veterans Affairs (VA), there were
no documents available to the Board confirming that rating.

13.  Army Regulation 635-40, which establishes the policies and procedures
for the separation of Soldiers because of disability states that the
objectives of the disability system are to maintain an effective and fit
military organization with maximum use of available manpower, to provide
benefits for eligible Soldiers whose military service is terminated because
of a service-connected disability and to provide prompt disability
processing while ensuring that the rights and interests of the Government
and the Soldier are protected.  It notes that the overall effects of all
disabilities present in a Soldier whose physical fitness is under
evaluation must be considered.  The effect will be considered both from



the standpoint of how the disabilities affect the Soldier’s performance and
the requirements imposed on the Army to maintain and protect him or her
during future duty assignments.  A Soldier may be unfit because of physical
disabilities caused by a single impairment or physical disabilities
resulting from the overall effect of two or more impairments even though
each of them, alone, would not cause unfitness.  Findings with respect to
fitness or unfitness for military service will be made on the basis of the
preponderance of the evidence.  Thus, if the preponderance of evidence
indicates unfitness, a finding to that effect will be made.

14.  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.

15.  Title 10, United States Code, section 1201, provides for the physical
disability retirement of a member who has at least 20 years of service or a
disability rated at least 30 percent.

16.  Army Regulation 635-40 also provides that commanders of medical
treatment facilities will appoint a Physical Evaluation Board Liaison
Officer who is responsible for counseling Soldiers concerning their rights
and privileges at each step in the disability evaluation, beginning with
the decision of the treating physician to refer the Soldier to a Medical
Evaluation Board and until final disposition is accomplished.  During the
physical evaluation process Soldiers are required to concur or nonconcur
with conclusion and recommendations concerning their medical conditions and
fitness status and provided opportunities to submit information and
documents in their behalf.

17.  Title 38, United States Code, permits the VA to award compensation for
disabilities which were incurred in or aggravated by active military
service.  However, an award of a higher VA rating does not establish error
or injustice in the Army rating.  An Army disability rating is intended to
compensate an individual for interruption of a military career after it has
been determined that the individual suffers from an impairment that
disqualifies him or her from further military service.  The VA, which has
neither the authority nor the responsibility for determining physical
fitness for military service, awards disability ratings to veterans for
conditions that it determines were incurred during military service and
subsequently affect the individual's employability.  Accordingly, it is not
unusual for the two agencies of the Government, operating under different
policies, to arrive at a different disability rating based on the same
impairment.  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.


DISCUSSION AND CONCLUSIONS:

1.  The fact that the applicant has continued to experience problems since
his separation from the Army, or that he ultimately suffered additional
problems following surgery to remove a cystic mass, is not evidence that
any error or injustice occurred in his Army disability processing.  It is
noted that the initial MRI, completed in August 2001, was accomplished more
than 2 years after the applicant was separated from active duty, not 1 year
as claimed by the applicant. It is also noted that following that MRI the
evaluating physician noted that the “lesion may represent an incidental
finding, unrelated to the patient’s symptoms.”

2.  There is no evidence that the Army’s rating was in error or unjust.
The VA initially rated the applicant’s condition at only 20 percent, the
same rating as the Army.  However, a subsequent increase in the VA rating
would not necessarily demonstrate any error or injustice in the Army
rating.  The VA, operating under its own policies and regulations, assigns
disability ratings as it sees fit.  Any rating action by the VA does not
compel the Army to modify its rating.

3.  The applicant’s desire to be able to utilize military facilities is
understandable, however, it does not serve as a basis to increase his Army
disability rating to satisfy that desire.

4.  In order to justify correction of a military record the applicant must
show, or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy the aforementioned requirement.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 15 July 1999; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
14 July 2002.  However, the applicant did not file within the 3-year
statute of limitations and has not provided a compelling explanation or
evidence to show that it would be in the interest of justice to excuse
failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

__MM___  __RS ___  ___TO __  DENY APPLICATION




BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate
the existence of a probable error or injustice.  Therefore, the Board
determined that the overall merits of this case are insufficient as a basis
for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




            _____Melvin Meyer________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2003096779                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040527                                |
|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.       |108.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |