RECORD OF PROCEEDINGS


      IN THE CASE OF:

      BOARD DATE:            11 APRIL 2006
      DOCKET NUMBER:   AR20050008668


      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. Jessie B. Strickland          |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. William Powers                |     |Chairperson          |
|     |Ms. Carol Kornhoff                |     |Member               |
|     |Mr. Rodney Barber                 |     |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 his discharge be changed to
retirement by reason of physical disability.

2.  The applicant states, in effect, that he was honorably discharged by
reason of physical disability with severance pay; however, he was in a
terrible accident while in the military and that was not considered at the
time he was discharged.  He goes on to state that he been having more
complications since his discharge and is being treated at a veterans
hospital and should have been medically retired instead of being
discharged.

3.  The applicant provides a copy of his Department of Veterans Affairs
Rating Decision.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 25 August 1986.  The application submitted in this case is
dated 9 June 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.  He enlisted at Fort Hamilton, New York on 25 November 1974 for a period
of 3 years, training as an equipment repair parts specialist and assignment
to Germany.  He was honorably discharged on 10 October 1978 for the purpose
of immediate reenlistment.  He reenlisted on 11 October 1978 and remained
on active duty through a series of continuous reenlistments.  He was
promoted to the pay grade of E-6 on 4 August 1982.

4.  On 5 May 1986, while serving as an assistant club manager at Lexington
Blue Grass Army Depot, he underwent a Medical Evaluation Board (MEB) for
low back pain with left side radiculopathy.  The applicant relayed a
history of back injuries to include being in an automobile accident in
1979.

5.  The MEB recommended that he be referred to a Physical Evaluation Board
(PEB) and he concurred with the findings and recommendation of that board.

6.  On 14 May 1986, a PEB was convened at Fort Sam Houston, Texas, which
found that the applicant was physically unfit to perform his duties as a
club manager due to low back pain with left side radiculopathy.  The PEB
recommended that he be separated from the service with severance pay and
rated his disability as 20% disabling.

7.  On 27 May 1986, the applicant non-concurred with the findings and
recommendations of the PEB and demanded a formal hearing of his case.  On
8 July 1986, after consulting with counsel, the applicant withdrew his
request for a formal hearing and indicated that he still did not concur
with the 20% rating recommended by the PEB.

8.  The appropriate authority approved the findings and recommendations of
the PEB on 17 July 1986 and directed that the applicant be separated with
severance pay in the pay grade of E-6 with a 20% disability rating.

9.  On 25 August 1986, the applicant was honorably discharged in the pay
grade of E-6 under the provisions of Army Regulation 635-40, paragraph 4-
24e(3) due to physical disability with severance pay.  He had served 11
years, 8 months and 1 day of total active service and was paid $30,571.20
in disability severance pay.

10.  The VA Rating Decision provided by the applicant indicates that he has
been granted a 30% service-connected disability rating.

11.  Army Regulation 635-40, Physical Evaluation for Retention, Retirement,
or Separation provides, in pertinent part, that when a member is being
separated by reasons other than physical disability, his continued
performance of duty creates a presumption of fitness which can be overcome
only by clear and convincing evidence that he was unable to perform his
duties or that acute grave illness or injury or other deterioration of
physical condition, occurring prior to or coincident with separation,
rendered the member unfit. It also provides 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.

12.  There is a difference between the VA and the Army disability systems.
While both the VA and the Army use the VA Schedule for Rating Disabilities
(VASRD) to determine percentage ratings, not all of the general policies
set forth in the VASRD apply to the Army; thus there are sometimes
differences in ratings. The Army's determination of a soldier's fitness or
unfitness is a factual finding based on the individual's ability to perform
the duties of his grade, rank, or rating. If the soldier is found to be
physically unfit, a disability rating is awarded by the Army and is
permanent in nature.  The Army system requires that the soldier only be
rated as the condition(s) exist(s) at the time of the physical evaluation
board hearing.  The VA may find a soldier unfit by reason of service
connected disability and may even initially assign a higher rating.  The
VA's ratings are based on an individual's ability to gain employment as a
civilian and may fluctuate within a period of time depending upon the
changes in the disability.

DISCUSSION AND CONCLUSIONS:

1.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement.

2.  The applicant has not provided sufficient documentation to support his
contention that he was not afforded proper disability processing or that
the evaluation and the rating rendered by the PEB was incorrect.

3.  The fact that the VA, in its discretion, has awarded the applicant a
higher disability rating is a prerogative exercised within the policies of
that agency.  It does not, in itself, establish any entitlement to
additional disability compensation or medical retirement from the
Department.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 25 August 1986; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 24 August 1989.  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

____WP_  ___CK __  ___RB __  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.




                                  _____William Powers__________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050008668                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060411                                |
|TYPE OF DISCHARGE       |(HD)                                    |
|DATE OF DISCHARGE       |1986/08/25                              |
|DISCHARGE AUTHORITY     |AR635-40 . . . . .                      |
|DISCHARGE REASON        |PHY DIS                                 |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |177/PD                                  |
|1.108.0000              |                                        |
|2.108.0200              |179/%                                   |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]