RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        FEBRUARY 10, 2005
      DOCKET NUMBER:  AR20040000320


      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. Deyon D. Battle               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Fred Eichorn                  |     |Chairperson          |
|     |Mr. Joe R. Schroeder              |     |Member               |
|     |Ms. Laverne V. Berry              |     |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, that his records be corrected to
show that he was medically retired by reason of physical disability.

2.  The applicant states that based on the findings of the Department of
Veterans Affairs (VA) he should have been retired based on medical reasons.
 He states that while he was in the Army, he was not allowed to keep his
doctors appointments in April 1993 and in July 1993 for problems that he
was having with his back while he was in the “Black Opps” unit Task Force
Grizzly.

3.  The applicant provides in support of his application, a letter from the
VA dated 8 October 2002, indicating that he was awarded a 100 percent
service connected disability rating and copies of his diagnosis from the
Jerry L. Pettis Memorial Veterans Hospital.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or
injustice, which occurred on 22 April 1993.  The application submitted in
this case is dated 31 March 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.  On 15 April 1978, the applicant enlisted in the Army Reserve under the
Delayed Entry Program.  On 28 August 1978, he enlisted in the Regular Army
for 3 years and he successfully completed his training as a tank driver.
He remained on active duty until 17 August 1981, when he was honorably
released from active duty and he was transferred to the United States Army
Reserve (USAR) Control Group (Reinforcement).

4.  He enlisted in the California Army National Guard (CAARNG) on 23
October 1981.  He was honorably discharge from the CAARNG on 22 April 1993,
due to the expiration of his service obligation.  He had completed 11 years
and 6 months of net service for this period.
5.  A review of the applicant’s medical records fails to show that he
suffered from any medical conditions while he was in the Army, which
required his being processed through medical channel.

6.  The medical documentation from the VA that the applicant submitted in
support of his application shows that on 8 October 2002, he was furnished a
certificate so that he could receive commissary store and exchange
privileges from the Armed Forces and to certify that he is an honorably
discharged veteran of the Army with a service connected disability rating
at 100 percent.  However, the record is unclear as to what his specific
disabilities include and the assigned ratings for his disabilities.

7.  Title 38, United States Code, sections 1110 and 1131, 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.

8.  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.

9.  Army Regulation 635-40, paragraph 2-2b, as amended, provides that 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.




DISCUSSION AND CONCLUSIONS:

1.  Records provided by the applicant from the VA indicate that he has been
awarded compensation for medical conditions, which that agency has
determined to be related to military service.  However, his medical records
do not indicate any medical condition incurred while entitled to receive
basic pay which was so severe as to render the applicant medically unfit
for retention in the Army. Accordingly, the applicant was discharged from
the CAARNG for reasons other than physical disability.

2.  The applicant's 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.

3.  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.

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 this requirement.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 22 April 1993; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 21 April 1996.  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 FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

jrs  _____  fe    ____  lvb    ____  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.




                                  ___     _Fred Eichorn       __
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040000320                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050210                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  177  |108.0000.0000/DISABILITY SEP OR RETIRE  |
|2.  995                 |145.0000.0000/PHYSICAL DISABILITY       |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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