RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  15 March 2007
	DOCKET NUMBER:  AR20060009828 


	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 discharge be voided and that he be retired by reason of physical disability.  

2.  The applicant states, in effect, that because of negligence on the part of military medical personnel at the time, he was not properly diagnosed for sleep apnea, diabetes, knee, shoulder and back problems.  Accordingly, he should have been retired by reason of physical disability instead of being discharged.   

3.  The applicant provides a two-page explanation of his application, three    third-party letters regarding his disabilities, a copy of his Department of Veterans Affairs (VA) Rating Decision and his rebuttal to that decision, and a copy of his report of separation (DD Form 214). 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 12 June 1986.  The application submitted in this case is dated 5 July 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.  He was commissioned as a United States Army Reserve (USAR) second lieutenant on 13 May 1979.  He was promoted to the rank of first lieutenant on 5 June 1982 and on 13 June 1983, he was ordered to active duty as a Judge Advocate General (JAG) officer for a period of 3 years.  He attended the JAG Officer Basic Course at Fort Lee, Virginia and was subsequently assigned to Fort Bragg, North Carolina.  He was promoted to the rank of captain on 1 January 1984.   

4.  The applicant served as a legal assistance officer and trial counsel while assigned to Fort Bragg and on 12 June 1986, he was honorably released from active duty (REFRAD) due to the expiration of his term of service.  He had 
served 3 years of total active service and was transferred to the USAR Control Group (Reinforcement) until 19 July 1991, when he was honorably discharged in the rank of captain. 

5.  The applicant’s medical records are not present for review in the records made available to the staff of the Board.   

6.  The third party statements submitted with his application all indicate that they were aware that the applicant was experiencing sleep problems at the time he was on active duty.    

7.  The VA Rating Decision submitted by the applicant with his application is dated 2 February 2005 and indicates that he has been granted a combined 30% disability rating for hypertension, Patellofemoral pain syndrome of the left knee and Residuals, back injury.  The VA noted that he was not granted a service connection for diabetes and sleep apnea and that the issues would be considered on appeal.

8.  Army Regulation 635-40, Physical Evaluation for Retention, Retirement, or Separation, provides that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member may reasonably be expected to perform because of his or her office, rank, grade or rating.  

9.  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.            

10.  Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his or her office, rank, grade or rating because of disability incurred while entitled to basic pay.  

11.  There is a difference between the Department of Veterans Affairs (VA) and the Army disability systems.  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 or her 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.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of sufficient evidence to the contrary, it must be presumed that the applicant met the medical and physical standards for retention on active duty at the time of his separation some 20 years ago and that his alleged conditions were not of such severity to warrant disposition through the medical disability system.  

2.  The applicant has failed to show through the evidence submitted or the evidence of record that he was medically/physically unfit at the time of separation and should have been processed for separation due to physical disability. 
Accordingly, he was properly discharged at the completion of his required service. 

3.  The fact that the VA in its discretion has awarded the applicant a disability rating does not establish physical unfitness, of any degree, thereof for Department of the Army purposes.  Each agency/department is bound to operate within its own rules, regulations and policies.  The granting of a compensable award by one agency is not tantamount to a lesser, equal or more enhanced award by the other agency.    

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 12 June 1986; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
11 June 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

__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.




____X______
          CHAIRPERSON




INDEX

CASE ID
AR20060009828
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070315
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         1.108.0000
177/PD
2.

3.

4.

5.

6.