RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        23 NOVEMBER 2005
      DOCKET NUMBER:  AR20050002890


      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. John Slone                    |     |Chairperson          |
|     |Mr. Patrick McGann                |     |Member               |
|     |Mr. Larry Olson                   |     |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 in lieu of
disability separation without benefits.

2.  The applicant states he was discharged from the Army in December 1999
under Army Regulation 635-40, paragraph 4-24B(3), disability, aggravation.
He states immediately after his discharge he applied for benefits from the
Department of Veterans Affairs and in September 2000 received a 70 percent
disability rating from the Department of Veterans Affairs for his
disabilities.  He notes the Department of Veterans Affairs described all of
his disabilities as "direct service connected."

3.  The applicant states he just recently became aware that he could appeal
his discharge to have it changed to show he was medically retired and
includes information about the Board in his application.  He believes,
based on the high disability rating from the Department of Veterans Affairs
that the Army rating of 0 percent may have been an oversight.  He points
out that his separation document does indicate in item 28 (narrative reason
for separation) "disability, aggravation."

4.  The applicant provides a copy of his Medical Evaluation Board (MEB)
summary, a copy of his informal Physical Evaluation Board (PEB), and a copy
of his 2000 Department of Veterans Affairs Rating document.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 8 December 1999.  The application submitted in this case
is dated
16 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 was involved in a
skydiving accident in January 1990, prior to entering active duty.  His
injuries included electrocution injuries to his left leg.  In spite of the
injuries, he was found medically qualified to enter active duty and did so
in 1992.

4.  The applicant's July 1999 MEB noted that over the years the pain in his
left leg continued to worsen in the left leg, in the knees, and eventually
in the low back.  His MEB cited his chief complaint as chronic low back
pain, left leg pain, and bilateral knee pain.  An addendum to the initial
MEB also noted the applicant suffered from asthma and allergic rhinitis.
His MEB ultimately concluded the applicant suffered from; chronic left leg
pain secondary to electrocution injury (diag 1), electrocution injury to
the left leg (diag 2), bilateral patellofemoral pain syndrome (diag 3),
chronic mechanical low back pain (diag 4), asthma, moderate, persistent
(diag 5), and allergic rhinitis (diag 6).  The applicant concurred with the
findings and recommendation of the MEB and was referred to a PEB.

5.  On 29 July 1999 the applicant underwent an informal PEB.  The PEB
concluded that his chronic left leg pain, bilateral knee pain, and lower
back pain (diag 1-4) existed prior to his entry on active duty, and were
not permanently aggravated by his military service, but were such that he
was now unfit.  The PEB noted the applicant's condition, which was not
rated, was the result of natural progression and as such the conditions
were not compensable under the Army Physical Disability System and the
proper disposition was separation from the Army without entitlement to
disability benefits.  The PEB noted the applicant's asthma and allergic
rhinitis were not unfitting and therefore not rated.

6.  The applicant did not agree with the findings and recommendation of the
informal PEB and demanded a formal hearing.

7.  A formal PEB, a copy of which was in records available to the Board,
but not provided by the applicant as part of his petition to this Board,
convened on
22 September 1999.  The findings and recommendation of the formal PEB were
identical to the informal PEB.  On 27 September 1999 the applicant
concurred with the findings and recommendation of the formal PEB.

8.  In spite of the fact that the PEB concluded the applicant's conditions
existed prior to his entry on active duty and were not aggravated by his
military service the message announcing his separation, which was issued by
the Army's disability agency, incorrectly cited paragraph 4-24b(3) of Army
Regulation 635-40, vice paragraph 4-24b(4) as the basis for the applicant's
separation.
9.  Paragraph 4-24b(3) of Army Regulation 635-40 provides for the
separation of Soldiers for physical disability with severance pay, while
paragraph 4-24b(4) provides for the separation of Solders for physical
disability without severance pay.

10.  On 8 December 1999 the applicant was honorably discharged under the
provisions of paragraph 4-24b(3) of Army Regulation 635-40, in accordance
with the information in the message announcing his separation.  Based on
the authority for his separation, the applicant received a separation code
of "JFQ" and the narrative reason for his separation was listed as
"disability aggravation."  His separation document, however, does not
reflect entitlement to any severance pay.

11.  Based on the information in the applicant's formal PEB, he should have
been separated under Army Regulation 635-40, paragraph 4-24b(4), received a
separation code of "JFM" and a narrative reason for separation of
"disability, existed prior to service, PEB."

12.  Subsequent to the applicant's separation, in September 2000, the
Department of Veterans Affairs granted the applicant a combined disability
rating of 70 percent.  His asthma was independently rated at 30 percent,
burn scars on his left thigh and left calf were each independently rated at
20 percent, and he received independent ratings of 10 percent each for a
burn scar on his right hip, lumbosacral strain, and residuals of left knee
injury.  The combined disability rating was retroactive to 9 December 1999,
the day following the applicant's separation from active duty.

13.  Army Regulation 635-40 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.  That same regulation notes
there are no objective medical laboratory testing procedures used to detect
the existence of or measure the intensity of subjective complaints of pain,
and as such, a disability retirement cannot be awarded solely on the basis
of pain.

14.  The Army Physical Disability Agency (USAPDA) has noted in advisory
opinions in similar cases that confusion frequently arises from the fact
that the Army and the Department of Veterans Affairs use different rating
systems.  While both use the Veterans Administration Schedule for rating
Disabilities (VASARD), not all of the general policy provisions set forth
in the VASARD apply to the Army.  The Army rates only conditions determined
to be physically unfitting, because they adversely affect the individual’s
ability to perform assigned duties, thus compensating the individual for
loss of a career.  The Department of Veterans Affairs, on the other hand,
may rate any service-connected impairment, in order to compensate the
individual for loss of civilian employability or social functioning.  The
USAPDA has also pointed out that military disability ratings are based upon
the degree to which a medical condition affects the ability to perform duty
and not upon the diagnosis or name attached to the condition.

15.  Title 38, United States Code, sections 1110 and 1131, permit the
Department of Veterans Affairs to award compensation for disabilities which
were incurred in or aggravated by active military service.  However, an
award of a Department of Veterans Affairs rating does not establish error
or injustice in the basis for separation from the Army.  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 Department of Veterans Affairs, 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.

DISCUSSION AND CONCLUSIONS:

1.  In spite of the fact that the applicant's separation document reflects
an incorrect authority, narrative reason, and separation code, the evidence
available to the Board confirms the applicant's primary complaint,
throughout his disability processing was pain.  Even if the PEB had
concluded the applicant's back, leg, and knee pain were permanently
aggravated by his military service he could not have been retired by reason
of physical disability based on the provisions of Army Regulation 635-40
which precludes disability retirement solely on the basis of pain.

2.  The fact that the Department of Veterans Affairs may have subsequently
granted a disability rating for various medical conditions, including those
such as asthma which the PEB determined did not render the applicant unfit
for military duty, is not evidence that the Army’s rating is in error or
unjust.  The Department of Veterans Affairs, operating under its own
policies and regulations, assigns disability ratings as it sees fit.

3.  The applicant was a participant in his disability processing and
concurred with the findings and recommendation of his formal PEB.  The fact
that he is now receiving disability compensation from the Department of
Veterans Affairs does not compel the Army to modify its reason or authority
for separation.

4.  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.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 8 December 1999; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
7 December 2002.  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

___JS___  __PM ___  __LO ___  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.



                                  _______John Slone_________
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050002890                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051123                                |
|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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