RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        13 SEPTEMBER 2005
      DOCKET NUMBER:  AR20040011646


      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. Shirley Powell                |     |Chairperson          |
|     |Mr. Robert Duecaster              |     |Member               |
|     |Ms. Jeanette McCants              |     |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, disability retirement.

2.  The applicant states after separating from the service he was awarded a
70 percent disability rating by the Department of Veterans Affairs (VA).
He notes the rating was effective on 28 March 1995 and the medical
conditions which served as the basis for his VA disability rating were
related to his military service.

3.  The applicant states those conditions, in addition to several other
injuries, illnesses, and impairments were noted on his separation physical
examination and should have identified him as a prime candidate for
disability processing.  He states because he received separation pay as
part of his early release program the VA recouped the payments before
beginning to pay him his VA disability amount.

4.  The applicant states that had he been properly counseled or directed by
his chain of command to undergo disability processing it would have proven
to be fair, equitable, and advantageous to him and would have preserved the
benefits he served so honorably and faithfully for.

5.  The applicant provides a copy of his January 1995 Report of Medical
History and copies of various VA rating decisions.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 13 January 1995.  The application submitted in this case
is dated
13 December 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.  Records available to the Board show the applicant served an initial
period of active duty between 1977 and 1980.  He returned to active duty in
1981 and served continuously until he was voluntarily separated at his
request under the FY (fiscal year) 1995 Enlisted Voluntary Early Transition
Program.

4.  He performed duties as an administrative specialist during both periods
of active duty.

5.  In February 1992 the applicant was issued a permanent P-2 profile for
bilateral knee and right ankle pain.  In spite of his profile, his physical
limitations did not prevent him from running at his own pace and distance
or from taking a physical fitness test which included push-ups, sit-ups,
and walking.  The profile did not preclude any functional activities (i.e.
carrying or firing a weapon, marching, or the wearing of a backpack or
helmet).

6.  A September 1994 Personnel Qualification Record indicated the applicant
still had the P-2 profile for his knees and right ankle.  It also indicated
the applicant was fully qualified for reenlistment.

7.  In December 1994 the applicant received a performance evaluation report
which indicated he had passed an Army Physical Fitness Test in May 1994 and
that while his weight exceeded the weight standards of Army Regulation 600-
9, he was in compliance with the body fat standards.  He was rated as
excellent in competence and successful in the remaining rating categories,
including physical fitness.

8.  On 13 January 1995 the applicant was voluntarily released from active
duty and awarded a lump sum Special Separation Benefit (SSB) payment of
more than $42,000.00, under the Army’s FY95 Enlisted Voluntary Early
Transition Program.

9.  The Report of Medical History, provided by the applicant in support of
his request does indicate a variety of medical complaints including an
episode of excessive bleeding following a dental procedure, shortness of
breath with exercise, exercise induced leg cramps, hemorrhoids, lower back
pain, DJD (degenerative joint disease) in his right ankle and knees for
which the report notes he received a P-3 profile in May 1994, and
chondromalacia patella, commonly referred to as "Runner's Knee."

10.  The report also noted the applicant had undergoing TRACK III alcohol
and drug rehabilitation treatment at Fort Gordon, Georgia between August
and September 1989.

11.  There is no indication, however, that the evaluating physician
concluded the applicant was unfit for continued military service or that
his medical conditions warranted referral for disability processing.

12.  According to the applicant's VA rating documents, in March 1995 he was
granted a combined disability rating of 30 percent.  The basis for that
rating was not in the document provided by the applicant.  However, the
document did note that while the applicant’s low back pain and bilateral
chondromalacia patella were service connected; neither warranted a
compensable rating percentage.  By June 1995 his combined disability rating
was increased to 50 percent and his left knee chondromalacia patella rating
was increased from 0 percent to 10 percent.  In August 1996 his left knee
condition was increased to 20 percent and his right knee increased from 0
percent to 10 percent.  The applicant was then granted a combined
disability rating from the VA of 70 percent.

13.  The Enlisted Voluntary Early Transition Program was an incentive
program designed to support the Army's drawdown and realignment efforts
beginning in 1992 and offered to various groups and categories of Soldiers
for several years thereafter.  The SSB and VSI (voluntary separation
incentive) were the two monetary benefits associated with this incentive
program.  The SSB is a single, lump-sum payment equal to 15 percent of the
annual base pay times the number of years on active duty.  Eligibility for
the early transition program targeted certain categories of Soldiers
prescribed by the Secretary of the Army which included requirements
relating to years of service, skill, and grade.

14.  Under laws established for the payment of disability benefits the
applicant’s monthly VA disability pay was withheld until his SSB payment
was recouped.

15.  Once it is determined that a veteran received lump-sum readjustment
pay, disability severance pay, separation pay under 10 U.S.C. 1174, Special
Separation Benefit (SSB) under 10 U.S.C. 1174a, or Voluntary Separation
Incentive (VSI) under 10 U.S.C. 1175, 38 CFR 3.700 prohibits duplication of
benefit payments.

16.  Army Regulation 635-40, in effect, at the time, outlined the policies
and procedures for disability processing and 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 or retirement 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
or retirement, creates a presumption that the soldier is fit.  The
presumption of fitness may be overcome if the evidence establishes that (a)
the soldier was, in fact, physically unable to perform adequately the
duties of his or her office, grade, rank or rating for a period of time
because of disability.  There must be a causative relationship between the
less than adequate duty performance and the unfitting medical condition or
conditions.  (b) An acute, grave illness or injury or other significant
deterioration of the soldier’s physical condition occurred immediately
prior to, or coincident with processing for separation or retirement, for
reasons other than physical disability and which rendered the soldier unfit
for further duty.

17.  Title 38, United States Code, sections 1110 and 1131, permit the 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.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant's separation physical noted several ailments
there is no evidence any of them precluded his continued performance of
duty until his separation from active duty in January 1995.  The fact that
he passed a physical fitness test in May 1994 and received a successful
performance evaluation report in December 1994 supports this conclusion.

2.  The evidence of record indicates he did not have any medically
unfitting disability which required physical disability processing.
Therefore, there is no basis for physical disability retirement or
separation.


3.  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.

4.  Additionally, the fact that the law requires recoupment of separation
pay benefits prior to receiving benefits from the VA is not evidence of any
error or injustice on the part of the Army's separation action.  It also
does not serve as a basis to correct the applicant's records to show that
he was medically retired.

5.  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.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 13 January 1995; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
12 January 1998.  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

___SP __  ___RD __  __JM  ___  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.




                                  _____ Shirley Powell______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040011646                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050913                                |
|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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