RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         08 FEBRUARY 2004
      DOCKET NUMBER:  AR20040003087


      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:

|     |Ms. Margaret Patterson            |     |Chairperson          |
|     |Ms. Shirley Powell                |     |Member               |
|     |Ms. Susan 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 his record be corrected to show
that he separated or retired from active duty by reason of physical
disability.

2.  The applicant states he was not afforded an opportunity to appear
before a Physical Evaluation Board with the chance of being permanently
retired, offered severance pay, or to have his name placed on the TDRL
(Temporary Disability Retired List).  He states that he injured his lower
back while driving a tank in August 1983 and that he subsequently reinjured
the area in October 1983 during a field training exercise.  He states that
he was given a physical profile in January 1984 which precluded him from
lifting more than 10 pounds, physical training, wear of equipment, and
driving an armored vehicle.  He states he was on “profile” for the
remainder of his tour in the Army and merely did details for the unit
commander and first sergeant.

3.  He states that after his separation from active duty he received a
combined disability rating of 50 percent with his neck independently rated
at 20 percent and his back at 40 percent.

4.  The applicant provides copies of photographs of the tank accident, a
copy of his separation orders, and a copy of his separation document in
support of his request.  Subsequent to his original application, he also
submitted copies of his service medical records and Department of Veterans
Affairs (VA) treatment records.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 2 March 1986.  The application submitted in this case is
dated
29 January 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 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 entered
active duty as a Regular Army Soldier on 3 March 1983.  He was trained as
an armor crewman and in March 1983 was assigned to an armor company with
duty at Fort Hunter Liggett, California.  In April 1984 was promoted to pay
grade E-4.

4.  His service medical records indicate that he sought medical treatment
for back pain in January 1984 and on 2 July 1984 for neck pain.

5.  On 14 September 1984 he sought treatment for shoulder pain and the
medical treatment document noted that he had a history of muscle spasm
since
2 July 1984.  The medical records note follow-up treatment in December
1984, January 1985, and March 1985.  In April 1985 he was given a temporary
physical profile which precluded lifting over 10 pounds, carrying a ruck
sack, strenuous activity, and wearing combat equipment.  The temporary
profile expired on 8 July 1985.

6.  On 17 July 1985 the applicant received a new temporary profile which
permitted him to run and do physical training at his own pace, but
precluded driving armor vehicles.  That profile expired on 17 October 1985.
 On 15 October 1985 the profile was further amended to enable the applicant
to run at his own pace with follow-up in 3 months.

7.  Item 35 (record of assignments) on the applicant’s Department of the
Army Form 2-1 (Personnel Qualification Record) shows that his assigned
duties were those of a tank driver for the duration of his assignment at
Fort Hunter Liggett.

8.  In March 1986, the applicant underwent a physical examination in
preparation for separation.  His examining physician noted the applicant’s
complaint of back pain but found him medically qualified for separation
with a physical profile of
1-1-1-1-1-1.

9.  On 2 March 1986 the applicant was released from active duty, at the
expiration of his term of service.

10.  The applicant’s statement that he received disability compensation
from the VA after his separation from active duty is not confirmed in
records available to the Board.  However, the records that are available do
confirm that the VA has treated the applicant.

11.  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.

12.  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 1986
or that he had any disabling condition at the time which warranted referral
for disability processing.

2.  The fact that the applicant may subsequently have 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 1986.  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 2 March 1986; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
1 March 1989.  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

___MP __  ___SP __  ___SP __  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.




                                  ____Margaret Patterson ____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040003087                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050208                                |
|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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