RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           05 AUGUST 2004
      DOCKET NUMBER:  AR2004101035


      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. Walter Morrison               |     |Chairperson          |
|     |Ms. Linda Barker                  |     |Member               |
|     |Mr. Richard Dunbar                |     |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, in effect, an increase in his Army disability
rating.

2.  The applicant states, in effect, that he should have received an Army
disability rating between 50 and 100 percent.  He states that he is now
“150” percent disabled by the Department of Veterans Affairs and contends
even that rating should be higher.  He states that he suffered from
schizophrenia, sacroidosis, sleep disorder, high blood pressure,
depression, anxiety, and skin disease at the time of his discharge.

3.  The applicant provides no evidence in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred in September 1988.  The application submitted in this case
is dated
20 November 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 entered
active duty on 2 April 1973 and attained the rank of staff sergeant in
January 1980.

4.  In September 1984 the applicant underwent a Medical Evaluation Board
(MEB).  The MEB noted that the applicant was admitted to the hospital on
17 July 1984 for bizarre behavior and auditory hallucinations.  The MEB
evaluation also noted that a dermatology consult was obtained secondary to
a facial rash and that seborrheic dermatitis was diagnosed and treated.  It
also noted that a pulmonary consultation was obtained with an impression of
sarcoidosis diagnosed in 1979 with conjunctival biopsy.  However, the
consultation noted that overall, the disease appeared to be stable with
mild residual restriction of pulmonary functions.  The MEB found that the
applicant’s mental status had improved and that he was not experiencing
psychotic phenomenon with continued medication.  The MEB concluded that the
applicant suffered from schizophreniform disorder, sarcoidosis and
seborrheic dermatitis and referred the applicant to a Physical Evaluation
Board (PEB).

5.  An informal PEB, conducted in October 1984, concluded that the
applicant suffered from schizophreniform disorder, with definite impairment
of social and industrial adaptability, and from sarcoidosis (a chronic,
progressive systemic granulomatour reticulosis of unknown etiology,
involving almost any organ or tissue, including the skin, lungs, lymph
nodes, liver, spleen, eyes, and small bones of the hand and feet), with
moderate impairment of health.  His seborrheic dermatitis was considered
not ratable by the PEB.

6.  The PEB concluded that while the applicant’s mental disorder was
unfitting for further military service, it was not considered sufficiently
stabilized for permanent disposition.  As such, on 29 November 1984 the
applicant was discharged with a combined 50 percent disability rating, and
his name was placed on the TDRL (temporary disability retired list).

7.  The applicant underwent follow-up disability examinations and on 28
July 1988 an informal PEB concluded that the applicant’s chronic paranoid
schizophrenia was under control with continuing therapy and that he
continued to suffer from mild pulmonary residual as a result of the
sarcoidosis.  They found that the applicant’s conditions had not improved
to the extent that he was considered fit for duty, but that for
administrative adjudication purposes the disability was considered to have
stabilized to permit permanent retirement.  The PEB rated the applicant’s
schizophrenia at 30 percent and his pulmonary residual as a result of the
sarcoidosis at 10 percent.  The PEB recommended that the applicant be
permanently retired with a combined disability rating of 40 percent.  The
applicant concurred with the findings and recommendation of the PEB and
waived his right to a formal hearing.

8.  There were no service medical records beyond those associated with the
applicant’s MEB and PEB evaluations.  There were no Department of Veterans
Affairs records available to the Board or provided by the applicant.

9.  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.  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 only be
compensated 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 applicant has provided no evidence or documentation with his
application to this Board which substantiates that his Army disability
rating was in error or unjust.  The evidence shows that he concurred with
the findings and recommendation of his PEB in 1988 which resulted in his
permanent disability retirement with a combined Army disability rating of
40 percent.

2.  The fact that the Department of Veterans Affairs has granted him a
higher rating or that they may have rated conditions which the Army did not
find unfitting does not necessarily demonstrate any error or injustice in
the Army rating.  The Department of Veterans Affairs, operating under its
own policies and regulations, assigns disability ratings as it sees fit.
Any rating action by that agency does not compel the Army to modify its
rating.

3.  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 this requirement.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration in September 1988; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired in September 1991.  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

___WM__  ___LB___  ___RD__  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.




            ____Walter Morrison______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004101035                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040805                                |
|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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