RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  1 March 2007
	DOCKET NUMBER:  AR20060009514 


	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.




	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 increase of the 20 percent disability 
rating with severance pay assigned by a Physical Evaluation Board (PEB) to 
a 60 percent disability rating with tax free retirement pay, based on his injuries. 

2.  The applicant states, in effect:

	a.  while attending a reunion, he found two other members from his unit who had the same back injuries and time in service that he had and have been receiving 60 percent tax free retirement since 1993 and 1994;

	b.  his current injuries include:

		(1)  50 percent compression fracture of L-1; 100 percent loss of disc between L-1 and L-2; 30 percent compression fracture of T-11 and 30 percent compression of disc between T-11 and T-12;

		(2)  10 percent compression of all discs;

		(3)  osteoporosis (60 percent density loss) due to not being put on calcium supplements during his healing;

		(4)  50 percent high frequency hearing loss in his right ear, 30 percent high frequency hearing loss in his left ear, and tinnitus in both ears; and

		(5)  broken right foot, twisted right ankle, twisted right knee and twisted right hip.

	c.  he wants his disability percentage increased to 60 percent and to receive tax free retirement compensation similar to “the others” retroactive to the date of his separation.

3.  The applicant provides a copy of a letter of transmittal forwarding his orders for discharge with severance pay.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 3 December 1993, the date of his discharge.  The application submitted in this case is dated 29 June 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 military records show he served in the Regular Army from 
20 January 1967 to 14 July 1972.  He enlisted in the U.S. Army Reserve (USAR) on 31 March 1983 and continued to serve until his discharge with severance pay.

4.  On 24 June 1993, a Medical Evaluation Board (MEBD) found the applicant medically unacceptable in accordance with Army Regulation 40-501 for the following conditions:

	a.  L2 compression fracture;

	b.  degenerative arthritis of the upper lumbar spine; and 

	c.  high frequency hearing loss.  

5.  The MEBD referred the applicant to a Physical Evaluation Board (PEB).

6.  The Narrative Summary (NARSUM) stated the applicant fell down a flight of stairs in the Spring of 1992.  The NARSUM further states the applicant indicated that he has pain on an every day basis and was currently employed as a working foreman for the Department of Energy which involves climbing and lifting.

7.  On 12 July 1993, the applicant agreed with the MEBD’s findings and recommendation.

8.  On 10 August 1993, a PEB found the applicant fit for duty and recommended he be returned to duty.  On 23 August 1993, the applicant did not concur with the finding and recommendation and demanded a formal hearing with personnel appearance.

9.  On 9 September 1993, a formal PEB considered the following condition to be physically unfitting: L2 compression fracture with degenerative joint disease (DJD) of the upper spine manifested as pain on motion and some limitation of motion.  The formal PEB recommended a disability rating of 10 percent.  The formal PEB further found the applicant’s high frequency hearing loss to be not unfitting and therefore not rated.  The formal PEB also found that the disability did result from a combat related injury.  The formal PEB recommended the applicant be separated with severance pay if otherwise qualified.

10.  On 9 September 1993, the applicant concurred with the findings and recommendation of the formal PEB.

11.  On 3 December 1993, the applicant was discharged from the USAR with severance pay based on a disability rating of 10 percent.  

12.  Title 38, United States Code, permits the Department of Veterans Affairs (DVA) to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a DVA rating does not establish error or injustice in the Army not separating the individual for physical unfitness.  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.  

13.  Furthermore, the DVA can evaluate a veteran throughout his or her lifetime, awarding and/or adjusting the percentage of disability of a condition based upon that agency’s examinations and findings.  

DISCUSSION AND CONCLUSIONS:

1.  The formal PEB, dated 9 September 1993, determined that the applicant was unfit for duty due to L2 compression fracture with degenerative joint disease (DJD) of the upper spine manifested as pain on motion and some limitation of motion.  The applicant concurred with this finding and has not submitted evidence which would show that this finding was in error.

2.  The ABCMR considers each case individually on its own merit; therefore disability ratings of other Soldiers would not be a basis for a finding of error in this case.

3.  The disability rating assigned by the Army was based on the level of disability at the time the applicant was discharged on 3 December 1993.  The DVA evaluates veterans throughout their lifetime, adjusting the percentage of disability based upon that Agency's examinations and findings.  Any changes in the severity of a disability should be referred to that Agency.

4.  In order to justify correction of a military record the applicant must, 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 3 December 1993, the date of his discharge; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 2 December 1996.  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

___jrh___  ____jcr__  ___tmr___  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.




__________Thomas M. Ray_________
          CHAIRPERSON




INDEX

CASE ID
AR20060009514
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070301
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.

2.

3.

4.

5.

6.