RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         06 JANUARY 2005
      DOCKET NUMBER:  AR20040000521


      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. Fred Eichorn                  |     |Chairperson          |
|     |Mr. Richard Dunbar                |     |Member               |
|     |Ms. Yolanda Maldonado             |     |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 1996 separation from active
duty be corrected to show that he was retired by reason of physical
disability.

2.  The applicant states that he served his country honorably and has now
been diagnosed with brain cancer which has been declared as a 100 percent
service connected disability.  He states that he would like his record
corrected so that he can receive retirement privileges.

3.  The applicant provides a copy of a May 2003 statement from the
Department of Veterans Affairs confirming that the applicant is “rated
permanently and totally disabled due to his service connected disabilities
incurred during the Gulf War.”

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 1 May 1996.  The application submitted in this case is
dated
20 April 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 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
commissioned and entered active duty in May 1990.  He was promoted to the
grade of captain in August 1994.

4.  On 1 May 1996 the applicant was released from active duty under the
provisions of Army Regulation 600-8-24, paragraph 3-5, with an honorable
characterization of service.  He was transferred to the United States Army
Reserve Control Group (Reinforcement).

5.  Army Regulation 600-8-24, paragraph 3-5, provides for the unqualified
resignation of any officer on active duty who has fulfilled his service
obligation.  An officer has an 8-year military service obligation.  An
officer who requests resignation before completing the 8-year military
service obligation must agree to accept an indefinite appointment in the
United States Army Reserve to complete such service obligation.

6.  In January 2003, after twice failing to be selected for promotion to
the grade of major while a member of the United States Army Reserve Control
Group (Reinforcement), the applicant was honorably discharged.

7.  There were no service medical records available to the Board.

8.  The statement provided by the applicant from the Department of Veterans
Affairs merely indicates that the applicant was rated “permanently and
totally disabled due to his service connected disabilities incurred during
the Gulf War.”

9.  Army Regulation 635-40 states 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.  When a Soldier is being
processed for separation for reasons other than physical disability,
continued performance of assigned duty commensurate with his or her rank or
grade until the Soldier is scheduled for separation, is an indication that
the applicant is fit.

10.  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 VA rating does not establish an error or injustice in the
separation or discharge of an individual from the Army not as a result of a
disability.  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.  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.  There is no evidence, and the applicant has not provided any, that he
was physically unfit at the time of his separation from active duty in 1996
or that he had any disabling condition at the time which warranted referral
for disability processing.

2.  The fact that the applicant subsequently received a disability rating
from the Department of Veterans Affairs for his service incurred
disabilities is not evidence that he should have been medically retired or
separated from active duty in 1996, rather than being voluntarily released
from active duty at his request.  A rating action by the VA does not
necessarily demonstrate any error or injustice by the Army.  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 reason or authority for separation.

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 that requirement.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 1 May 1996; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
30 April 1999.  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

___FE __  __RD ___  ___YM __  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                 |AR20040000521                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050106                                |
|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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