RECORD OF PROCEEDINGS


         IN THE CASE OF:


         BOARD DATE: 03 JUNE 2004
         DOCKET NUMBER: AR2003098272


         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
Mr. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Mr. Luther Santiful		Chairperson
Mr. Roger Able		Member
Mr. Patrick McGann		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).

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THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant requests physical disability retirement.

2. The applicant states that he was diagnosed with blindness in his left eye while on active duty. He was awarded a 30 percent disability rating by the Department of Veterans Affairs (VA). The Army should have referred him to a medical board.
He entered the Army in July 1983 and was trained as a supply specialist. He was assigned to Fort Stewart, Georgia. On 5 December 1985 while on leave, he lost the vision in his left eye. He was evaluated by a private physician in Bradenton, Florida, who diagnosed his condition as optic neuritis in his left eye. He was seen by many doctors at Fort Stewart and it was determined that his condition was caused by an unknown virus. The condition remained unchanged because of damage to the optic nerve. He received a separation physical examination on 15 March 1986, and although his condition was noted, he was discharged with an honorable characterization of service.

3. Subsequent to his discharge, he planned to attend college and return to active duty as an officer. He was accepted into a Reserve Officer Training Corps (ROTC) program, but after completing one year, he was informed that the waiver that he had applied for was denied because of the loss of vision in his left eye. In June 1989 he joined the Army National Guard and attended monthly drills awaiting admission to OCS (officer candidate school). On 30 June 1989 he was seen by his family doctor and was diagnosed with type I diabetes. He was discharged from the National Guard in October 1989. Ten years later he applied to the VA and received a 30 percent disability rating because of the loss of vision that occurred while he was on active duty. If his condition was severe enough for the VA to grant him a 30 percent disability rating, then he should have received a medical discharge from the Army.

4. The applicant provides the documents depicted herein.

CONSIDERATION OF EVIDENCE:

1. The applicant is requesting correction of an alleged error or injustice which occurred on 26 May 1986. The application submitted in this case is dated 23 September 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. The applicant's military records are unavailable. The evidence is that submitted by the applicant.

4. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that he entered on active duty on 25 July 1983. The documents he submits with his request shows that he completed basic training and a supply specialist course at Fort Jackson. He was promoted to pay grade E-4 effective on 1 December 1984. The applicant was awarded three Army Achievement Medals, and a certificate for meritorious achievement. He qualified as an expert with [the rifle?].

5. In a 10 December 1985 statement, a physician of "The Eye Associates" in Bradenton, Florida, indicated that he evaluated the applicant on 5 December 1985 after the applicant had complained of a sudden loss of vision in his left eye of three days duration. He stated that the applicant was suffering from a retrobulbar optic neuritis in the left eye based on the history and examination. He indicated that further testing should be ordered as soon as possible to rule out the possibility of latent or CNS [?] lues. He stated that the chances of latent lues were extremely slim; however it was important to rule out that treatable cause of optic neuritis.

6. The first page of a 14 March 1986 report of medical examination contains the remark, "optic neuritis."

7. The applicant was released from active duty on 26 May 1986 at Fort Stewart, Georgia because of his ETS (expiration of term of service) under the FY 86 early release program. His service was honorable.

8. The applicant's NGB Form 22 (National Guard Bureau Report of Separation and Record of Service) shows that he enlisted in the Army National Guard of Florida on 9 June 1989.

9. In a 26 July 1989 statement, a physician stated that the applicant was diagnosed as having diabetes mellitus on 30 June 1989.

10. On 2 August 1989 the applicant's Army National Guard commander requested that a determination be made concerning the applicant's medical disability, which was discovered after his enlistment. An 11 September 1989 medical report indicates that the applicant was evaluated and was determined to be not qualified for retention. The applicant was discharged from the Army National Guard of Florida and as a Reserve of the Army on 18 October 1989.

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11. On 30 August 2000 the VA notified the applicant that his optic neuritis to his left eye was service connected with a 30 percent disability rating. It also informed him that his claim for diabetes was not well grounded, in that there was no record of diabetes showing chronic disability subject to service connection.
12. 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.

13. Army Regulation 40-501, then in effect, 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.

14. Army Regulation 635-40, then in effect, states in pertinent part that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.

15. When a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

16. Title 38, United States Code, sections 1110 and 1131, permit the Department of Veterans Affairs (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 civilian 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. The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while the VA may rate any service connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability. A common misconception is that veterans can receive both a military retirement for physical unfitness and a VA disability pension. By law, a veteran can normally be compensated only once for a disability. If a veteran is receiving a VA disability pension and the ABCMR corrects the records to show that a veteran was retired for physical unfitness, the veteran would have to choose between the VA pension and military retirement.

DISCUSSION AND CONCLUSIONS:

1. The 10 December 1985 physician's statement that the applicant was suffering from a retrobulbar optic neuritis in his left eye is noted, as is the note on his 14 March 1986 report of medical examination. Nonetheless, medical personnel apparently believed that the applicant was medically qualified for separation. Furthermore, his continued performance of duty raised a presumption of fitness which he has not overcome by evidence of any unfitting, acute, grave illness or injury concomitant with his separation.

2. The fact that the VA, in its discretion, has awarded the applicant a disability rating is a prerogative exercised within the policies of that agency. It does not, in itself, establish physical unfitness for Department of the Army purposes.

3. The award of VA compensation does not mandate disability retirement or separation from the Army. The VA, operating under its own policies and regulations, may make a determination that a medical condition warrants compensation. The VA is not required to determine fitness for duty at the time of separation. The Army must find a member physically unfit before he can be medically retired or separated.

4. The VA 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. Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. Consequently, due to the two concepts involved, the applicant'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 him for VA benefits based on an evaluation by that agency.

5. The applicant did not have any medically unfitting disability which required physical disability processing. Therefore, there is no basis for physical disability retirement or separation.

6. Records show the applicant should have discovered the alleged error or injustice now under consideration on 26 May 1986; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 25 May 1989. 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

__LS____ ___RA __ ___PM __ DENY APPLICATION

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.




                  ____ Luther Santiful_____
                  CHAIRPERSON

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INDEX

CASE ID	AR2003098272
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20040603
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.