RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        27 September 2005
      DOCKET NUMBER:  AR20050000133


      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. David S. Griffin              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Ronald E. Blakely             |     |Chairperson          |
|     |Mr. Lawrence Foster               |     |Member               |
|     |Ms. LaVerne M. Douglas            |     |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 honorable discharge be
changed to a medical retirement.

2.  The applicant states, in effect, that she became sick prior to and
while awaiting discharge in June/July 2000 and she was never given
opportunity for a medical board.  The applicant further states that she was
given a 70 percent disability by the Department of Veterans Affairs (DVA).

3.  The applicant provides a copy of:

      a.  her DD Form 214 (Certificate of Release or Discharge from Active
Duty) with a separation date of 30 August 2000; and

      b.  her DVA Regional Office (DVARO), Houston, Texas Rating Decision
of April 3, 2003, that granted the applicant an evaluation of 10 percent
for hypertension.

4.  The applicant elected the Disabled American Veterans (DAV) as his
counsel.

5.  On 24 August 2005, the Army Board for Correction of Military Records
notified the DAV of the applicant's pending application and requested that
they review his records within 30 days.  However, the DAV has not provided
a brief.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred
on 30 August 2000, the date of her release from active duty.  The
application submitted in this case is dated 28 September 2004 and was
received on
23 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.  The applicant's military records show that she enlisted on 29 July 1993
for a period of 3 years.  The applicant was assigned the military
occupational specialty (MOS) 92G10 (food service specialist).  The
applicant served continuously until 30 August 2000.

4.  On 30 August 2000, the applicant was discharged due to parenthood.  She
had completed 7 years, 1 month and 2 days of active service that was
characterized as honorable.  The highest grade held by the applicant was
specialist/pay grade E-4.

5.  On 3 April 2003, DVARO, Houston granted the applicant an evaluation
of 10 percent disability for hypertension.

6.  The applicant's medical records were not available to the Board for
review.

7.  Chapter 3 (Retention Medical Fitness Standards) of Army Regulation
40-501 (Standards of Medical Fitness), as amended, provides the standards
for medical fitness for retention and separation, including retirement.
Soldiers with medical conditions listed in this chapter should be referred
for disability processing.

8.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement,
or Separation) provides that the medical treatment facility commander with
the primary care responsibility will evaluate those referred to him and
will, if it appears as though the member is not medically qualified to
perform duty or fails to meet retention criteria, refer the member to a
medical evaluation board.  Those members who do not meet medical retention
standards will be referred to a physical evaluation board (PEB) for a
determination of whether they are able to perform the duties of their grade
and military specialty with the medically disqualifying condition.

9.  Title 38, United States Code, permits the DVA to award compensation for
a medical condition which was incurred in or aggravated by active military
service.  The DVA, however, is not required by law to determine medical
unfitness for further military service.  The DVA, 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 DVA benefits based on an
evaluation by that agency.
DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her honorable discharge should be changed
to a medical retirement.

2.  There is no evidence of record and the applicant has not submitted any
evidence that she had a medical condition which would have warranted her
being considered by a Medical Evaluation Board (MEB).  Without an MEB,
there would have been no basis for referring her to a PEB.  Without a PEB,
the applicant could not have been issued a medical discharge or retired for
physical unfitness.

3.  The record does not contain any evidence and the applicant has not
submitted any evidence, which would show that she could not perform the
duties of her MOS.

4.  The fact that the DVA, in its discretion, has awarded the applicant a
disability rating is a prerogative exercised within the policies of that
agency.  A rating awarded after the applicant was discharged does not, in
itself, establish physical unfitness for Department of the Army purposes.

5.  In order to justify correction of a military record the applicant must,
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 now
under consideration on 30 August 2000, the date of her release from active
duty; therefore, the time for the applicant to file a request for
correction of any error or injustice expired on 29 August 2003.  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

___lmd __  ____lf __  ___reb___  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.




                                  __________Ronald E. Blakely_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050000133                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050927                                |
|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.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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