RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  17 April 2007
	DOCKET NUMBER:  AR20060012559 


	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, that he be granted a disability retirement from the Army, and that he be given all benefits and entitlements that coincide with a military retirement due to disabilities.

2.  The applicant essentially states that the Department of Veterans Affairs (DVA) granted him a combined 50 percent disability for service connected medical conditions, effective the day after his release from active duty on 10 September 1971.  He also states, in pertinent part, that he feels that he should have been placed on the Temporary Disability Retired List (TDRL) in 1971, then medically retired instead of being given just an honorable discharge.

3.  The applicant provides a self-authored statement, dated 28 July 2006, his 
DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), a letter, dated 6 November 2002, from the DVA to the applicant, and two documents related to increased disability compensation in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 31 December 2005, the date of his release from active duty from the Regular Army.  The application submitted in this case is dated 28 July 2006.

2.  The applicant was honorably released from active duty from the Army of the United States on 10 September 1971 after completing 1 year, 7 months, and
18 days of continuous active duty service.  Item 11c (Reason and Authority) of his DD Form 214 essentially shows that he was separated early in order to attend school.  There is no evidence in the applicant’s military records which shows that he was not fully eligible to reenlist prior to his release from active duty, and his reentry (RE) code of 2 shown in item 15 (Reenlistment Code) of his DD form 214 permitted his immediate reenlistment if all other criteria were met.  

3.  Although the applicant was wounded by small arms fire on 26 April 1971, and was issued a temporary physical profile on 26 July 1971, there is no evidence in his military records which shows that he was ever issued a permanent profile.

4.  A copy of an electronic message sent to the applicant’s parents essentially shows that the applicant was slightly wounded in action on 26 April 1971 by fragments he received to the right flank, which resulted in a fracture of the right ilium.  This message also stated that since the applicant was not seriously wounded, no further reports would be furnished.

5.  There is no record of the applicant appearing before any board within the Army Physical Disability Evaluation System.

6.  The applicant’s military records contain a Standard Form 88 (Report of Medical Examination) conducted in conjunction with his release from active duty in September 1971.  This document shows, in pertinent part, that he was medically qualified for separation.

7.  The applicant provided a letter, dated 6 November 2002 from the DVA.  This document essentially increased his disability compensation to 50 percent.  

8.  The applicant did not provide any evidence which shows that any of the conditions for which the DVA awarded him disability compensation affected his ability to perform his military duties beyond the issuance of his temporary profile.
 
9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states, in pertinent part, 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.  This regulation also provides, in pertinent part, that when a Soldier 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, creates a presumption that the Soldier is fit.

10.  Title 38, United States Code, sections 1110 and 1131, permit the 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 whether or not an Army rating is given, or in an Army rating that is given.  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.  The DVA, which has neither the authority, nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual’s civilian employability.  Accordingly, it is not unusual for the two agencies of the Government, operating under different 
policies, to arrive at different positions.  Furthermore, unlike the Army, the DVA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings.  The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while the DVA may rate any service connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be granted a disability retirement from the Army, and should be given all benefits and entitlements that coincide with a military retirement due to disabilities. 

2.  While the Board does not doubt the veracity of the applicant’s claim to entitlement to a disability retirement, evidence of record clearly shows that he was only issued a temporary physical profile for his wounds received in action, and that he was medically qualified for separation.  Evidence of record also shows that he was eligible for reenlistment, but chose to be released from active duty early in order to attend school.  Absent evidence which conclusively shows that he could not continue to reasonably perform his military duties because of a physical disability incurred or aggravated in service, there is no basis for granting the applicant a disability retirement in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__JM____  __TR ___  __RN ___  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.




______John Meixell__________
          CHAIRPERSON




INDEX

CASE ID
AR20060012559
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070417
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
AR 15-185
ISSUES         1.
110.0200.0000
2.
108.0000.0000
3.

4.

5.

6.