RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        26 SEPTEMBER 2006
      DOCKET NUMBER:  AR20050017931


      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. Rene’ R. Parker               |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Marla Troup                   |     |Chairperson          |
|     |Mr. Chester Damian                |     |Member               |
|     |Mr. Edward Montgomery             |     |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, an Army disability rating of 100
percent.

2.  The applicant states that his 10 percent disability rating should be
changed to 100 percent.

3.  The applicant does not provide any additional documentation in support
of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 2 October 1973.  The application submitted in this case
is dated     15 November 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 records show that he enlisted in the Regular Army and
entered active duty on 28 May 1971.  He served in the Army for 2 years and
     5 days, and was discharged under honorable conditions on 2 October
1973.

4.  The applicant's DD Form 214 (Armed Forces of the United States Report
of Transfer or Discharge) shows the authority for his discharge as Army
Regulation 635-200 (Enlisted Personnel) “Expiration term of service”.

5.  There were no medical records available to the Board and the applicant
did not provide any medical records.  Additionally, he provided no
documentation from Veterans Affairs (VA) verifying his 10 percent
disability rating.

6.  Special Orders Number 200, dated 1 October 1973, relieved the applicant
from active duty not by reason of physical disability and transferred him
to the United States Army Reserve effective 2 October 1973.


7.  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.  When a Solider is being
processed for separation or retirement for reasons other than physical
disability, continued performance of assigned duty commensurate with his or
her rank or grade until the Soldier is scheduled for separation or
retirement, is an indication that the applicant is fit.

8.  Title 38, United States Code, sections 1110 and 1131, permits the VA to
award compensation for a medical condition which was incurred in or
aggravated by active military service.  The VA, however, is not required by
law to determine medical unfitness for further military service.  The VA,
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 VA benefits
based on an evaluation by that agency.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s separation orders show that he was separated “not by
reason of disability” and there is no evidence and he has not provided any,
which show that he was physically unfit to perform his duties at the time
of separation.

2.  The applicant implies that he was awarded a 10 percent disability
rating from VA and believes that a 100 percent rating should be assigned.
The Board acknowledges that VA is not required by law to determine medical
unfitness for further military service.  The VA 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, the applicant'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 him for VA benefits based on an evaluation by that
agency.

3.  Additionally, an award of a VA rating does not establish entitlement to
medical retirement or separation.  The VA is not required to find unfitness
for duty.  Operating under its own policies and regulations, the VA awards
ratings because a medical condition is related to service, i.e., service-
connected.  Furthermore, the VA can evaluate a veteran throughout his
lifetime, adjusting the percentage of disability based upon that agency's
examinations and findings.  The Army must find unfitness for duty at the
time of separation before a member may be medically retired or separated.

4.  No medical evidence has been presented by the applicant to demonstrate
an injustice in the medical treatment received in service.  Absent evidence
to the contrary, the applicant was physically fit at the time of his
discharge in October 1973.  He has provided no evidence to indicate
otherwise.  Consequently, there is no basis for granting the applicant's
request for a 100 percent disability rating.

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 2 October 1973; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on           1 October 1976.  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

__MT ___  ___CD __  ___EM __  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.




                                  _______Marla Troup_________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050017931                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060926                                |
|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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