RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        8 February 2007
      DOCKET NUMBER:  AR20060008066


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Jeffrey C. Redmann            |     |Chairperson          |
|     |Mr. David K. Hassenritter         |     |Member               |
|     |Mr. Ronald D. Gant                |     |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, permanent disability retirement.

2.  The applicant states, in effect, he received an unfair evaluation by
the Physical Evaluation Board (PEB).

3.  The applicant provides a copy of his medical records in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 14 November 1997, the date of his discharge.  The
application submitted in this case is dated 30 May 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's record shows that he enlisted in the Regular Army and
entered active duty on 2 January 1985.  He was trained in, awarded, and
served in military occupational specialty (MOS) 95B (Military Police) and
MOS 13B (Field Artillery), and the highest rank he attained while serving
on active duty was sergeant.

4.  On 28 August 1996, a PEB convened at Fort Sam Houston, Texas, to
consider the applicant's case.  The PEB found the applicant was physically
unfit for further service based on his diagnosed condition of major
depression complicated by alcohol abuse manifested by insomnia, anhedonia,
feelings of guilt, decreased energy and concentration, and multiple suicide
attempts, which it assigned a disability rating of 30 percent (%).  The PEB
recommended the applicant's placement on the Temporary Disability Retired
List (TDRL).

5.  On 4 November 1996, the applicant was honorably released from active
duty (REFRAD) under the provisions of Paragraph 4-24b(2), Army Regulation
635-40, by reason of physical disability-temporary, and was placed on the
TDRL.  The separation document (DD Form 214) he was issued confirms he
completed a total of 11 years, 10 months, and 3 days of active military
service.

6.  On 25 September 1997, a PEB convened at Fort Lewis, Washington, to
reexamine the applicant case.  The PEB determined the applicant's major
depression was in partial remission with continued unemployment, which
seemed more related to the applicant's choice rather than his medical
condition.  The PEB determined the applicant's condition had not improved
to the extent that he was fit for duty; however, it changed his disability
rating to 10%.  The PEB noted that his disability rating was now less than
30% and that he had less than 20 years of service, which required him to be
separated with severance pay.  The PEB finally recommended the applicant be
separated with severance pay.

7.  On 23 October 1997, the applicant non-concurred with the PEB decision;
however, he waived a formal hearing and elected to submit a written appeal.
 On 27 October 1997, the President of the PEB, Tacoma, Washington, notified
the applicant that his appeal had been carefully considered and his case
reviewed by the PEB, and that following its review, the PEB adhered to the
original findings and recommendations of the informal hearing.

8.  Orders Number D223-12 issued by the Physical Disability Branch, Total
Army Personnel Command, directed the applicant's removal from the TDRL and
discharge, effective 14 November 1997.  These orders also indicate his
disability percentage was 10% and that he was entitled to severance pay.

9.  The applicant's provides medical records that were available to and
considered by the PEB during its various reviews of his case, and
Department of Veterans Affairs (VA) medical records and a VA Rating
Decision, dated
14 March 2005, which indicates his major depression disability rating of
30% was increased to 100%, his diabetes melitus rating of 20% was
continued, his 10% rating for peripheral neuropathy, right lower extremity
was continued, his 10% rating for peripheral neuropathy, left lower
extremity was continued, and his bilateral pes planus with planter warts
rating of 0% was continued.

10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement,
or Separation) establishes the Army Physical Disability Evaluation System
(PDES) and sets forth policies, responsibilities, and procedures that apply
in determining whether a Soldier is unfit because of physical disability to
reasonably perform the duties of his or her office, grade, rank, or rating.
 In each case, it is necessary to compare the nature and degree of physical
disability present with the requirements of the duties the Soldier
reasonably may be expected to perform because of his or her office, grade,
rank, or rating.  Separation by reason of disability requires processing
through the PDES.

11.  Chapter 4 of the same regulation contains guidance on processing
through the PDES, which includes the convening of a MEB to document a
Soldier's medical status and duty limitations insofar as duty is affected
by the soldier's status.  If the MEB determines a Soldier does not meet
retention standards, the case will be referred to a PEB.  The PEB evaluates
all cases of physical disability equitably for the Soldier and the Army.
It also investigates the nature, cause, degree of severity, and probable
permanency of the disability of soldiers whose cases are referred to the
board.  It also evaluates the physical condition of the Soldier against the
physical requirements of the Soldier's particular office, grade, rank, or
rating.  Finally, it makes findings and recommendations required by law to
establish the eligibility of a Soldier to be separated or retired because
of physical disability.

12.  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.  The VA can evaluate a veteran throughout his
lifetime, adjusting the percentage of disability based upon that agency's
examinations and findings.  However, these changes do not call into
question the application of the fitness standards and the disability
ratings assigned by proper military medical authorities during the
applicant’s processing through the Army PDES.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his PEB evaluation was unjust was
carefully considered.  However, the evidence of record confirms the
applicant was properly processed through the PDES.  While non-concurring
with the PEB's final decision in his case, he did not request a formal
hearing and instead elected to submit a written appeal.

2.  The applicant's appeal of the final PEB decision was properly
considered, along with new VA medical records he provided, by the PEB,
which after carefully reviewing his appeal and the medical evidence,
adhered its original decision.  Subsequent to completion of the appellate
process, the PEB findings and recommendation were approved for The
Secretary of the Army, and the applicant was discharged accordingly.

3.  The medical evidence now submitted by the applicant was available to
and reviewed by the PEB during its deliberations, or is new based on
subsequent
VA evaluations.  As a result, it provides an insufficient evidentiary basis
to support a change to the original PEB decision.

4.  The applicant is advised that he is properly being evaluated and
treated by the VA.  While both the Army and the VA use the VA Schedule for
Rating Disabilities (VASRD), not all of the general policy provisions set
forth in the VASRD apply to the Army.  The Army rates only conditions that
are determined to be physically unfitting for further military service,
thereby compensating the individual for the loss of his or her military
career.  Conversely, the VA can evaluate a veteran throughout his lifetime,
adjusting the percentage of disability based upon that agency's
examinations and findings.  However, these changes do not call into
question the application of the fitness standards and the disability
ratings assigned by proper military medical authorities during the
applicant’s processing through the Army PDES.

5.  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.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 14 November 1997, the date of his
discharge with severance pay.  Therefore, the time for him to file a
request for correction of any error or injustice expired on 13 November
2000.  He failed to 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

___JCR__  __DKH__  __DRG__  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.




                                  _____Jeffrey C. Redmann_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060008066                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/02/08                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1997/11/14                              |
|DISCHARGE AUTHORITY     |AR 635-40                               |
|DISCHARGE REASON        |Disability with Severance Pay           |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |108.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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