RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        9 December 2004
      DOCKET NUMBER:  AR2004105891


      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             |
|     |Mr. Robert J. McGowan             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Melvin H. Meyer               |     |Chairperson          |
|     |Ms. Linda D. Simmons              |     |Member               |
|     |Mr. Michael J. Flynn              |     |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 separation by reason of convenience of the
Government be changed to a separation by reason of physical disability
retirement.

2.  The applicant states, in effect, he was wounded and is disabled.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation
from the Armed Forces of the United States) and numerous medical records
from the Army and the Department of Veterans Affairs (VA).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 1 October 1952, the date of his separation.  The
application submitted in this case is dated 16 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 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 for 3 years on 22 September
1949. He was awarded military occupational specialty (MOS) 4121, General
Utility Repairman.

4.  The applicant served in the Korean War and was seriously wounded on
27 November 1950.  He suffered a gunshot wound to the right shoulder, with
a broken clavicle and scapula and partial neuropathy of the radial nerve.
He was evacuated to the United States and underwent a series of operations
and rehabilitative measures.  He recovered, but had some weakness due to
the neuropathy.

5.  On 29 September 1952, the applicant underwent a separation physical
examination which found him physically fit for continued military service.
He was separated on 1 October 1952.

6.  The applicant went to the VA for evaluation after being unable to hold
a job for any length of time.  On 15 January 1954, the VA rated him as 60
percent disabled due to his right shoulder condition.

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.

DISCUSSION AND CONCLUSIONS:

1.  There is no argument that the applicant suffered a serious wound during
the Korean War.  He was treated at various Army hospitals and made a
sufficient recovery to warrant return to duty.  He was given a physical
examination on 29 September 1952 and found fit for duty.

2.  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, or a higher rating than one given by the Army,
does not establish error or injustice in the Army rating, or lack thereof.
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.  Accordingly, it is not unusual for
the two agencies of the Government, operating under different policies, to
arrive at a different decision or disability rating based on the same
impairment.  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.  A common misconception is that veterans can receive both a
military retirement for physical unfitness and a VA disability pension.  By
law, a veteran can normally be compensated only once for a disability.  If
a veteran is receiving a VA disability pension and the ABCMR corrects the
records to show that a veteran was retired for physical unfitness, the
veteran would have to choose between the VA pension and military
retirement.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 1 October 1952, the date of discharge;
therefore, the time for the applicant to file a request for correction of
any error or injustice expired on 30 September 1955.  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___  __lds___  __mjf___  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                 |AR2004105891                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20041209                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |108.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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