RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           29 March 2005
      DOCKET NUMBER:  AR20040002044


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Melvin H. Meyer               |     |Chairperson          |
|     |Mr. Patrick H. McGann             |     |Member               |
|     |Ms. Susan A. Powers               |     |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 her separation for completion
of her required active service be changed to a medical retirement and that
she be given back due pay and allowances and a medical retirement
identification card for herself and her daughter.

2.  The applicant states that she was denied a medical board.  They knew
she was sick because each one of her duty stations had been notified by the
previous duty station that she was sick and she was not to do physical
training.  She tried to get life insurance on herself while she was in the
Army but was denied because of the evidence in her medical records.  The
doctors knew all along she had cardiomyopathy but they were telling her
nothing was wrong with her.  They would not help her and were upset with
her because she was sick and went to another doctor.

3.  The applicant states that she did have lower ranking officers trying to
help her get a medical retirement but higher ranking officers would deny
it.  So, she was put out of the Army without any benefits and because of
that her health became worse and worse and she could not take care of
herself or her daughter.  It took her three and one-half years to get the
Department of Veterans Affairs (VA) to give her just a 10 percent
disability rating but, when the VA ran tests on her, they came up with the
same illness the Army had found.  She almost died from all the medications
she was taking while in the Army.  That should have been enough to get her
medically retired.

4.  The applicant provides three letters, two dated 17 October 2000 and one
dated 20 December 2000, from Primerica Life Insurance Company; a letter,
dated 24 January 2001, to her Congressman; a letter, dated 11 August 2000,
to her Congressman; a VA Form 21-4138 (Statement in Support of Claim); a
letter from the VA, Regional Office, Vocational Rehabilitation and
Employment dated   9 July 2001; a Motor Vehicle Division Application for
Disability Access Parking Privileges; her DD Form 214 (Certificate of
Release or Discharge from Active Duty); and a 4-page list of medications
she had been taking.

5.  The applicant also provides nine pages of medical records from
Montgomery Cardiovascular Associates; a 1-page medical record from
Dermatology Clinic dated 3 August 2001; a letter from MBI (Medical
Information Bureau), Incorporated dated 6 November 2001; an 8-page document
entitled "Medication" dated 5 December 2003; a Report of Medical History
dated 19 August 1992; a medical record dated 24 January 2002; a Standard
Form 600 (Chronological Record of Medical Care) dated 5 November 1998; two
authorizations for release of medical information dated 9 January 2004 and
10 December 2002; two documents from CUNA Mutual Group dated 12 February
2004 and 11 January 2001; a medical record dated 5 March 2003; two medical
bills dated                  18 November 1998 and 16 January 2001; an
electrocardiogram dated 9 June 2003; a 6-page medication profile dated 20
March 2003; and two letters from the VA dated 1 September 2004 and 14
December 2004.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel did not respond within the given time frame.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 22 October 2000.  The application submitted in this case is
dated 25 May 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.  The applicant enlisted in the Regular Army on 16 September 1992.  She
completed basic training and advanced individual training and was awarded
military occupational specialty (MOS) 75D (Personnel Records Specialist).
She was promoted to Sergeant, E-5 on 1 May 1997 in MOS 75H (Personnel
Services Specialist).

4.  Except for the few documents provided by the applicant, her service
medical records are not available.

5.  In May 1999, the applicant was examined at Montgomery Cardiovascular
Associates and diagnosed with uncontrolled hypertension; cardiomyopathy
(enlarged heart), probably hypertensive in etiology with early response in
systolic function; atypical chest pain with a negative Thallium SPECT study
and reversible ischemia; and an abnormal chest x-ray (then currently under
workup).

6.  The applicant's noncommissioned officer evaluation report (NCOER) for
the period October 1998 through June 1999, from Fort McClellan, AL shows
that she received two "excellence" and three "success" ratings in the five
areas of NCO responsibilities.  One rater comment was, "can be counted on
to perform her assigned tasks under any conditions."

7.  The applicant's NCOER for the period July 1999 through June 2000, from
Fort Stewart, GA, shows that she received two "excellence" and three
"success" ratings in the five areas of NCO responsibilities.  The NCOER
indicated she had received a physical profile in April 2000 but that her
profile did not hinder her daily duties and that she participated in
physical training to the maximum extent possible.  Other comments included,
"technically proficient and immensely dedicated to mission completion" and
"unlimited potential; ready to be a platoon sergeant now."  The applicant
signed the NCOER on 24 August 2000.

8.  On 22 October 2000, the applicant was discharged upon the completion of
her required active service.  She had completed 8 years, 1 month, and 7
days of creditable active service.

9.  On or about 20 December 2000, Primerica declined the applicant's
application for life insurance because of a history of cardiomyopathy.

10.  In 2003, the VA reevaluated the applicant's claim for service-
connected disability and awarded her a 60 percent rating for hypertensive
cardiomyopathy; a 10 percent rating for bronchial asthma; and a zero
percent rating for alopecia (hair loss), all effective 23 October 2000.
She was also awarded a 50 percent rating for major depression, effective 25
July 2002.  She was granted entitlement to 100 percent disability effective
23 October 2000 because she was unable to work.  She was given instructions
on how to apply for a military identification card for herself and
dependents.

11.  Army Regulation 635-40 governs the evaluation of physical fitness of
Soldiers who may be unfit to perform their military duties because of
physical disability.  The unfitness is of such a degree that a Soldier is
unable to perform the duties of his office, grade, rank or rating in such a
way as to reasonably fulfill the purposes of his employment on active duty.


12.  Title 38, U. S. 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.

13.  Title 38, U. S. Code, section 5304 states that, except to the extent
that retirement pay is waived under other provisions of law, not more than
one award of pension, compensation, regular, or reserve retirement pay
shall be made concurrently to any person based on such person's own
service.
14.  Title 10, U. S. Code, section 1414 was added in 2004 to allow
concurrent receipt of military retired pay and VA compensation under
certain circumstances. The new law does not apply to disability retirees
with less than 20 years service.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant's service medical records are not available, the
Board is cognizant that civilian medical and VA medical authorities
diagnosed the applicant with hypertensive cardiomyopathy and several other
conditions.  The VA has rated the applicant 100 percent disabled due in
part to this condition.

2.  Nevertheless, the rating action by the VA does not necessarily
demonstrate an error or injustice on the part of the Army rating.  The VA,
operating under its own policies and regulations, assigns disability
ratings as it sees fit.  The VA is not required by law to determine medical
unfitness for further military service in awarding a disability rating,
only that a medical condition reduces or impairs the social or industrial
adaptability of the individual concerned.  Consequently, due to the two
concepts involved (i.e., the more stringent standard by which a Soldier is
determined not to be medically fit for duty versus the standard by which a
civilian would be determined to be socially or industrially impaired), the
VA may grant service-connection for an individual’s medical condition even
though the Army may have found the individual to be fit for duty.

3.  The applicant's last two NCOERs showed that she was highly capable of
performing her military duties.  Since the evidence of record does not show
she was unfit for duty, it appears military medical authorities made a
reasonable determination that she did not meet the eligibility criteria for
referral to the physical disability system.

4.  Since the applicant is currently rated by the VA as 100 percent
disabled, even if her records were corrected to show she was medically
retired she would not receive military retired pay.  Also, because she is
rated by the VA as 100 percent disabled, she and her dependents already are
entitled to a military identification card as the VA informed her in August
2003.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 22 October 2000; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on         21 October 2003.  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

__mhm___ _phm___  __sap___  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 H. Meyer_____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040002044                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050329                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |108.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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