RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  13 October 2005
	DOCKET NUMBER:  AR20050000952 


	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. Ted S. Kanamine

Chairperson

Mr. Patrick H. McGann Jr.

Member

Ms. Carol A. Kornhoff

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 an increase in his disability compensation.

2.  The applicant states, in effect, that his left leg was amputated below the knee on 6 February 2001, due to a service connected injury, which developed squamus cell carcinoma and that the Department of Veterans Affairs (DVA) diagnosed him with effects (diabetes mellitus type 2) of Agent Orange.

3.  The applicant provides a copy of:

	a.  medical records that show that the applicant received a below-the-knee amputation of the left leg on 6 February 2001; and

	b.  a DVA Rating Decision, dated 22 January 2004, that granted the applicant service connection for diabetes mellitus type 2 with an evaluation of 20 percent effect 9 July 2003, established entitlement to automobile and adaptive equipment and denied service connection for hypertension and hyperlipidemia.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 
6 February 2001, the date he received a below-the-knee amputation of the left leg.  The application submitted in this case is dated 31 January 2005.

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 he was commissioned a second lieutenant in the U.S. Army Reserve (USAR) on 8 June 1968 and entered active duty on 30 June 1968.

4.  The applicant was assigned in the Republic of South Vietnam on 2 July 1970 and on 27 July 1970 he sustained multiple fragment wounds and several fractures after hitting a booby trap.

5.  On 20 May 1971, at Martin Army Hospital, Fort Benning, Georgia, a Medical Evaluation Board (MEB) found the applicant did not meet medical retention standards for the following conditions:

	a.  right peroneal-nerve palsy secondary to an open fracture of the right fibula;

	b.  an open fracture of the left calcaneus and talus; an open fracture of the left femoral epicondyle;

	c.  chronic osteomyelitis, nondraining for several months, left foot; and 

	d.  scars, multiple, both lower extremities.	

The MEB recommended the applicant be referred to a physical evaluation board (PEB).

6.  On 28 May 1971, the PEB considered the following conditions to be physically unfitting:

	a.  peroneal nerve palsy, right lower extremity, complete;

	b.  muscle loss, Group XIV, left thigh, moderately severe; and

	c.  limitation of motion, left ankle, marked.

7.  The PEB recommended a combined rating of 70 percent, and recommended that the applicant be placed on the Temporary Disability Retired List with reexamination during November 1972.

8.  On 17 June 1971, the PEB was reviewed by the U.S. Army Physical Review Council (USAPRC).  The USAPRC modified the findings and recommendations of the PEB to show that the applicant's disabilities were permanent and that the applicant be permanently retired from the service.

9.  On 17 June 1971, the applicant concurred with the findings of the USAPRC.

10.  Effective 13 August 1971, the applicant was placed on the Retired List due to disability with a percentage of disability of 70 percent.  The applicant had completed 3 years, 1 month and 13 days of active service, which was characterized as honorable.

11.  Title 38, United States Code, permits the DVA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a DVA rating does not establish error or injustice in the Army not separating the individual for physical unfitness.  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.  

12.  Furthermore, the DVA can evaluate a veteran throughout his or her lifetime, awarding and/or adjusting the percentage of disability of a condition based upon that agency’s examinations and findings.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his service connected disabilities have increased. Disabilities which occur or which worsen after a Solder is separated are treated by and compensated for by the DVA.  Any claims or issues concerning treatment or compensation for service connected disabilities should be addressed to that Agency.  

2.  The disability rating assigned by the Army was based on the level of disability at the time the applicant was placed on the Retired List on 13 August 1971.  The DVA evaluates veterans throughout their lifetime, adjusting the percentage of disability based upon that Agency's examinations and findings.  Any changes in the severity of a disability should be referred to that Agency.

3.  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.

4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 6 February 2001, the date he received a below-the-amputation of the left leg; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 5 February 2004.  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

___tsk __  ____phm_  ____cak_  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.




_____Ted S. Kanamine________
          CHAIRPERSON




INDEX

CASE ID
AR20050000952
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20051013
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.