RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  20 March 2007
	DOCKET NUMBER:  AR20060004997 


	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.


x

	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 disability rating be changed from a 10% rating to a 40% rating and that he be retired by reason of physical disability. 

2.  The applicant states, in effect, that he was unjustly discharged with a 10% disability rating without an opportunity to appeal the decision.  He further states that he should have been given at least a 40% disability rating and retired by reason of physical disability.  He goes on to state that since the Army placed the defibrillator in his chest, the Army should be responsible for providing him the care he needs.  

3.  The applicant provides a copy of his report of separation (DD Form 214) and a copy of his Department of Veterans Affairs (VA) Rating Decision.   

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 21 July 2002.  The application submitted in this case was received on 5 April 2006.

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 initially enlisted in the Marine Corps on 15 October 1990 and was discharged on 26 October 1990 due to fraudulent entry.  His service was uncharacterized.  

4.  He enlisted in the Regular Army with a waiver on 18 July 2000 for a period of 4 years, duty as an interior electrician (civilian acquired skills) and assignment to Alaska.  He completed his training and was transferred to Fort Wainwright, Alaska on 18 October 2000.  He was advanced to the pay grade of E-4 on 15 December 2000.   

5.  The facts and circumstances surrounding the applicant’s medical processing and discharge are not present in the available personnel records.  However, his records do show that he was reassigned to the Medical Holding Company at Brooke Army Medical Center (BAMC), Fort Sam Houston, Texas on 10 October 2001.

6.  On 21 July 2002, he was honorably discharged under the provisions of Army Regulation 635-40, paragraph 4-24B(3) due to physical disability with severance pay.  He was assigned a 10% disability rating and was paid $6,070.80 in disability severance pay benefits.   

7.  Although the original VA decision is not present in the available records, the decision provided by the applicant shows that he appealed the VA’s decision and on 11 September 2003, the VA granted him 100% disability rating for Evaluation of Prolonged QT Wave Syndrome, Status Post Pacer Defibrillator Placement.  

8.  Army Regulation 635-40, Physical Evaluation for Retention, Retirement, or Separation, paragraph 3-2b, 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.  That regulation also provides that members who undergo evaluations by a medical evaluation board (MEB) and/or a physical evaluation board (PEB) will have the findings and recommendations provided to the individual concerned for concurrence/non-concurrence and appeals before final action is completed.
  
9.  There is a difference between the VA and Army disability systems.  While both the VA and the Army use the VA Schedule for Rating Disabilities (VASRD) to determine disability 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 physical fitness or unfitness is a factual finding based upon 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 PEB 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 upon an individual’s ability to gain employment as a civilian and may fluctuate within a period of time depending on the changes in the disability. 

10.  Title 38, United States Code, sections 310 and 331, 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.  In the absence of evidence to the contrary, it must be presumed that the applicant’s disability was properly rated in accordance with the VA Schedule for Rating Disabilities (VASRD) and his separation with severance pay was in compliance with laws and regulations in effect at the time.
  
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.  Therefore, absent such evidence, there appears to be no basis to grant his request. 

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.  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 the aforementioned requirement.    

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 21 July 2002; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 20 July 2005.  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

__x___  __x ___  ___x __  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.




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          CHAIRPERSON




INDEX

CASE ID
AR20060004997
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070320
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         1.108.0200
179/DIS %
2.

3.

4.

5.

6.