RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        22 NOVEMBER 2005
      DOCKET NUMBER:  AR20050002527


      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:

|     |Mr. Thomas Pagan                  |     |Chairperson          |
|     |Mr. Eric Andersen                 |     |Member               |
|     |Mr. Joe Schroeder                 |     |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 that his Army disability rating be increased.

2.  The applicant states, in effect, that when his Army disability ratings
were added together the total rating was 110 percent and not 70 percent as
recorded on his disability documents.  He states the total percentage
rating should have entitled him to a retirement payment of 75 percent.

3.  The applicant states that he was forced into making a choice between an
outdated pay schedule with the correct rating of 75 percent or the current
pay schedule with the rating reduced to 70 percent.  He maintains this was
not in compliance with the findings of his medical board and states that he
should have received a disability rating of 75 percent.

4.  The applicant provides copies of documents associated with his
disability processing.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 31 March 1950.  The application submitted in this case is
dated
10 February 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.  Records available to the Board indicate the applicant entered active
duty as a Regular Army officer on 5 June 1945 after graduating from the
United States Army Military Academy at West Point.  In December 1946 he was
promoted to the rank of first lieutenant.

4.  In December 1947 the applicant was involved in a jeep accident while in
Italy and in August 1949 he was hospitalized for poliomyelitis.  It was the
poliomyelitis which initially resulted in the applicant's referral for
disability processing.

5.  The applicant's initial medical evaluation board (MEB) was conducted in
January 1950 and detailed his poliomyelitis condition.  In February 1950 an
addendum to the original MEB was completed detailing additional medical
conditions (encephalopathy manifested by recurrent headaches, irritability
and inability to concentrate and loss of smell) stemming from the
applicant's 1947 jeep accident.

6.  The applicant appeared before a physical evaluation board (PEB) in
February 1950.  At the conclusion of the PEB, on 14 February 1950, it was
determined the applicant had a combined disability rating of 70 percent.
The PEB proceedings noted that four of the applicant's cranial nerves were
affected by the poliomyelitis and each of the nerves were independently
rated under the VASRD (Veterans Administration Schedule for Rating
Disabilities) with a separate VASRD code.  The PEB noted that paralysis of
the 7th (code 8207) and 11th (code 8211) cranial nerves warranted
independent ratings of 10 percent each; paralysis of the 9th (code 8209)
cranial nerve warranted an independent rating of 20 percent; and paralysis
of the 10th (code 8210) cranial nerve warranted an independent rating of 30
percent.  The PEB found that the applicant's encephalopathy (code 8001)
warranted an independent rating of 30 percent and his loss of smell (code
6275) was independently rated at 10 percent.

7.  On 14 February 1950 the applicant also signed a statement indicating
that he had been hospitalized on or before 30 September 1949 incident to
appearance before the PEB.  On that statement the applicant indicated that
he elected to receive retirement benefits computed under the laws in effect
on 30 September 1949.

8.  However, on 15 March 1950 the applicant was advised that under his
14 February 1950 election statement he would be entitled to 75 percent of
his active duty pay as of 30 September 1949 based on the law in effect on
30 September 1949.  His monthly entitlement under that law would amount to
$157.50.  If however, he elected to be retired under the new law, which
would be 70 percent of his current monthly basic pay; his monthly
disability entitlement would amount to $194.52.  He was asked to verify his
election.  Records available to the Board do not contain a signed copy of
his new election, however, on 15 March 1950 a message directing the
applicant's permanent retirement by reason of physical disability effective
31 March 1950 was issued.  In that message it was noted that the applicant
was being retired under the new law (Public Law 351).

9.  The applicant was honorably discharged effective 31 March 1950 by
reason of physical disability.
10.  The practice of providing for special compensation to be paid to
persons disabled while performing military service can be traced to some of
the earliest enactments of the Federal Congress.  The Act of 30 April 1790,
for example, allowed the placement of disabled military personnel on "the
list of the invalids of the United States."  While on this "invalid," or
pension list, officers could receive up to one-half their "pay" and
enlisted personnel could receive up to $5.00 a month for life.  This system
continued to be the sole means by which disabled military personnel who
left active service could be compensated until 1855.  Over the years
various revisions were made to compensation laws for military members
disabled as a result of their military service.  By 1941 the law provided
for several means of disability compensation based on whether the disabled
Soldier was a regular or non-regular officer, an enlisted Soldier with more
than 20 years of active service, or an enlisted Soldier with less than 20
years of service.  Regular Army officers, like the applicant, were entitled
to 75 percent of their base and longevity pay.  Allegations of unfairness,
inequity, and inefficiency in the 1941 disability retirement system became
so extensive following World War II that a special subcommittee of the
House Armed Service Committee was impaneled to investigate the complaints.
The principal complaints against the system in effect since 1941 were:

      a.  the award of wholly tax-exempt retired pay of 75 percent of
active duty pay to any officer retired for disability, regardless of its
severity, was unduly generous and costly;

      b.  the system, especially the Army "emergency officer" procedure,
discriminated against non-regular officers as compared to regular officers;

      c.  the system discriminated against enlisted personnel as compared
with officers; and

      d.  the fact that retirement authority was limited to permanent
disability tended to burden the active list with personnel retained solely
for medical observation and evaluation of the permanency of a disability.

11.  The recommendations of the advisory committee led to the revised
disability retirement system adopted under the Career Compensation Act of
1949, in which most of the criticized features of the previous system were
changed.  Under the new system, signed on 12 October 1949 as Public Law
351, all disabilities had to be rated under the standard schedule of rating
disabilities in use by the Veterans' Administration and the resultant
ratings became a factor in the determination of actual disability retired
pay entitlements.  The new system covered officer and enlisted personnel of
both the regular and reserve components, and it authorized temporary as
well as permanent disability retirements.  The disability retirement system
in effect today remains basically unchanged from that adopted in 1949.

12.  Army Regulation 600-450, which established the policies and procedures
for separating Soldiers from the Army by reason of physical disability
during the period in question, stated that any member who was hospitalized
on 1 October 1949 as a result of a physical disability growing out of an
injury or disease and who was retired prior to 1 April 1950 for that
disability, could elect to receive retirement benefits computed under the
laws in effect on 30 September 1949 or under the new Career Compensation
Act of 1949 (Public Law 351).

13.  The applicant's basic pay and longevity as of 30 September 1949 was
$210.00 per month (first lieutenant with 4 years of service).  His pay at
the time of his March 1950 election was $277.88 per month (first lieutenant
with 4 years of service based on an October 1949 pay increase).

14.  The VASRD notes that when a Soldier has more than one compensable
disability, the percentages are combined rather than added together.  This
results from the consideration of the individual's efficiency, as affected
by the most disabling condition.  It notes that diseases of the cranial
nerves, in this case the applicant's independent ratings under VASRD codes
8207, 8209, 8210, and 8211, were combined via a Combined Ratings Table
contained in the VASRD and then that rating was subsequently combined
utilizing that same table with the applicant's independent ratings under
VASRD code 8001 and 6275.  After all percentages were combined, the
resulting combined value was converted to the nearest number devisable by
10.  In the applicant's case when his cranial nerve ratings were combined,
and that rating subsequently combined with the ratings for his
encephalopathy and loss of smell, his "combined" rating on the rating table
was a 71 which was then converted to 70, the nearest number devisable by
10.  Hence the applicant's disability rating was 70 percent.

DISCUSSION AND CONCLUSIONS:

1.  Contrary to the applicant's contention, he did not have a total
disability rating of 110 percent.  Independent disability ratings are not
"added" together as the applicant believes, but rather, the independent
ratings are "combined" utilizing a Combined Ratings Table contained in the
VASRD.  In the applicant's case his "combined" rating was 70 percent.

2.  The applicant's disability process spanned the old 1941 disability
retirement system and the new system enacted in October 1949 as the Career
Compensation Act of 1949.  As such, he was given the option of retiring
under the 1941 system, which would have paid him $157.50 per month, and the
new Career Compensation Act of 1949, which would have entitled him to
$194.52 per month, a difference of $37.02 per month.  While the applicant
indicates he was forced to select the new retirement system, he has
provided no evidence that such was the case and it would be reasonable to
conclude that he would have elected to retire under the system which paid
him the most money per month.

3.  The evidence shows the applicant's combined disability rating at the
time of his disability retirement in 1950 was 70 percent and that he
elected to retire under the Career Compensation Act of 1949 which entitled
him to $37.02 more per month then he would have been entitled to had he
selected to retire under the old 1941 system.

4.  It appears the applicant's belief that he is entitled to a higher
disability rating may stem merely from a lack of understanding of a very
complicated rating system, and a new disability law enacted just prior to
finalization of his disability processing, rather than from any error or
injustice in his case.  He has provided no evidence to indicate there was
any error or injustice in his rating or that he was forced to select a
specific retirement system which he believed might have disadvantaged him.

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 31 March 1950; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
30 March 1953.  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

__TP____  __EA ___  __JS____  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.




                                  _____Thomas Pagan________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050002527                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051122                                |
|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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