RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         7 JULY 2005
      DOCKET NUMBER:  AR20040007843


      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          |
|     |Mr. Eric Andersen                 |     |Member               |
|     |Ms. Carol Kornhoff                |     |Member               |

      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 that he be granted full retirement benefits.

2.  The applicant states that he was given a “disability retirement” from
the military, but received no pay or benefits.  He states that he was
ordered “on a disability retirement” and maintains that “by law” he is
entitled to a monthly pension, compensation, and health benefits.”  He
states that he served honorably in the Army and in Vietnam.

3.  The applicant provides extracts from his service medical records and
copies of various Department of Veterans Affairs rating decisions.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 2 October 1987.  The application submitted in this case
is dated
3 September 2004.

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 limitations 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 served an
initial period of active duty between November 1969 and May 1973.  He
served one tour of duty in Vietnam during his initial enlistment.

4.  On 20 August 1973 he reenlisted and returned to active duty.  Following
his August 1973 return to active duty he continued to serve in his original
military specialty as a motor transport operator.

5.  The applicant’s service medical records indicate that he was treated
for a variety of ailments during his military career including back pain
commencing in 1976, hip pain in 1977, a cyst on his right cheek in 1978,
shoulder pain and planters warts in 1979, knee pain commencing in 1978, as
well as, rashes, stomach ailments, and for a crushed foot injury, which
occurred in April 1983.  His medical records reveal a variety of temporary
physical profiles.
6.  Notwithstanding his various medical conditions, he continued to serve
successfully in the military.  He was promoted to pay grade E-6 in 1978,
completed several military training courses, including an 8 week Advanced
Noncommissioned Officer Course in 1985, and was awarded a variety of
personal decorations

7.  In January 1986 the applicant was admitted to Moncrief Army Community
Hospital at Fort Jackson, South Carolina with a chief complaint of “going
through another divorce…cannot accept it.”  He was released from the
hospital on
29 January 1986 after being diagnosed with “adjustment disorder with
depressed mood, manifested by diffuse anxiety, depressed mood,
irritability, hopelessness and despair [and] marital problems, severe.”  He
was given a 60-day temporary psychiatric profile.

8.  On 18 February 1986 the applicant underwent a Medical Evaluation Board
(MEB).  His MEB summary noted his chief complaint as being related to his
January 1986 hospitalization and his readmission on 4 February 1986.  The
summary noted that upon readmission the applicant was extremely depressed,
tearful, and his face was flushed.  He stated he could not take it anymore,
that everything caved in on him again, and that he was thinking of suicide.
 Following his hospitalization the summary noted that he was “in fairly
good control with intermittent anger and impulsive outbursts of temper” but
that he “did not make any further suicidal threats.”  It was determined,
however, that the applicant “with his unpredictable impulsive outbursts of
temper and emotions [he] could hardly tolerate any significant stress in
his or any other unit.”  His impairment for further military duty was
considerable.  His final diagnoses (MEB diagnosis 1) was essentially the
same as that rendered upon release from the hospital in January 1986 and it
was recommended that he be referred to a Physical Evaluation Board (PEB).
The MEB also noted the applicant’s 1983 “decompressed superficial perineal
nerve, right foot and ankle” (MEB diagnosis 2) in its referral to the PEB.

9.  The applicant concurred with the findings and recommendation of the
MEB.

10.  On 4 March 1986 the applicant underwent an informal PEB.  The PEB
concluded that the applicant’s mental disorder rendered him unfit, but that
it was not sufficiently stabilized for permanent disposition.  His foot
condition was not rated.  The PEB recommended that the applicant’s name be
placed on the Temporary Disability Retired List (TDRL) with a disability
rating of 30 percent.



11.  The applicant concurred with the findings and recommendation of the
PEB and waived his right to a formal hearing.

12.  On 25 April 1986 the applicant was honorably discharged and his name
was placed on the TDRL the following day.  At the time of his separation he
had approximately 16 years of active Federal service.

13.  In June 1987 the applicant underwent a TDRL evaluation at Fort Gordon,
Georgia.  The evaluating physician noted that the applicant had no
psychiatric care since his discharge and was not taking any medications at
the time.  He denied significant use of drugs and alcohol and reported that
he was remarried and had resolved his previous marital problems.  The
physician concluded that the applicant’s major depression had resolved but
that he did present dependent personality traits.  The physician
recommended the applicant’s TDRL status be finalized and that
“consideration be given to his return to Active Duty.”

14.  The applicant concurred with the TDRL evaluation findings.

15.  On 23 July 1987 an informal PEB concluded that the applicant’s
condition had resolved but that he was “still unfit for further military
service in any MOS [military occupational specialty] because of a mental
disorder.”  His foot condition continued to be unrated.  The PEB
recommended that the applicant’s name be removed from the TDRL and that he
be separated with a 10 percent disability and granted severance pay.

16.  The applicant concurred and requested “to be discharged from the Army
with severance pay as soon as possible.”  He waived his right to a formal
hearing.

17.  The applicant’s name was removed from the TDRL effective 2 October
1987 with entitlement to severance pay.

18.  By 1990 the Department of Veterans Affairs rating decision noted the
applicant had been granted a combined service connected disability rating
for 20 percent (10 percent for his right foot condition and 10 percent for
his major depressive disorder).

19.  Army Regulation 635-40, which establishes the policies and provisions
for physical evaluation for retention, retirement, or separation of Army
Soldiers, provides that an individual may be placed on the TDRL (for the
maximum period


of 5 years which is allowed by Title 10, United States Code, section 1210)
when it is determined that the individual's physical disability is not
stable and he or she may recover and be fit for duty, or the individual's
disability is not stable and the degree of severity may change within the
next 5 years so as to change the disability rating.  Following
reevaluation, and once it has been determined that the individual’s medical
condition has stabilized, the individual could ultimately be found fit,
permanently retired providing his final disability rating was at 30 percent
or higher, or, in cases where the final disability rating was less than 30
percent, entitled to disability severance pay.  Only individuals whose
final disability rating is 30 percent or higher are considered permanently
retired by reason of physical disability.

20.  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.

21.  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.

22.  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.


DISCUSSION AND CONCLUSIONS:

1.  The applicant provides no evidence or documentation with his
application to this Board, which substantiates that the Army did not
properly evaluate his medical condition at the time of his separation or as
part of the TDRL examination, or that his condition warranted a rating high
enough to result in disability retirement rather than separation.

2.  It is noted that the applicant would have been involved in his
disability processing and would have had the opportunity to raise
objections at various stages in the process.  The evidence, however, shows
that the applicant concurred with the findings and recommendation of the
informal PEB in 1987, thereby confirming his agreement with the
recommendation that he be separated by reason of disability with a
disability rating of 10 percent.  He has submitted no evidence that
indicates otherwise.  Had he believed that the rating was unfair or unjust
he could have requested a formal hearing.  The fact that he did not further
supports a conclusion that his condition was properly evaluated and that
the rating was appropriate.

3.  Contrary to the applicant’s contention, the law does not require that
individuals discharged as a result of disability be afforded a monthly
pension, compensation, or health benefits.  Rather, the law provides for
disability severance pay for individuals whose medical conditions were
rated at less than 30 percent.  The applicant’s records indicate his
condition was ultimately rated at 10 percent and as such, he would have
received the disability severance pay.

4.  The fact that the applicant may have been granted a disability rating
by the Department of Veterans Affairs is not evidence of any error or
injustice in the Army’s rating and does not serve as a basis to change or
modify the Army’s rating.

5.  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 that requirement.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 2 October 1987; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
1 October 1990.  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 FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___MM   _  ___EA__  ___CK __  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                 |AR20040007843                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050707                                |
|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.                      |                                        |


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