RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  7 June 2007
	DOCKET NUMBER:  AR20060013796 


	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. Gerard W. Schwartz

Acting Director

Mr. Michael J. Fowler

Analyst


The following members, a quorum, were present:


Ms. Carmen Duncan

Chairperson

Mr. Michael J. Flynn

Member

Mr. Jeffrey C. Redmann

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 reconsideration of an earlier appeal that his 1992 separation from the Army be corrected to show he was discharged by reason of physical disability.

2.  The applicant states, in effect, that he is providing new arguments and submitting new documents that show why he should have been referred to a Medical Evaluation Board (MEB).  He strongly disagrees with the Army Board for Correction of Military Records (ABCMR) decision that he failed to timely file within the 3-year statue of limitations based on the fact that there was no information available to him and he did not have any compliance information until March 2005.  It was the first time he received any information to take the steps to submit his case and under these circumstance failure to timely file should excused in his case. 

3.  The applicant argues that he requested a Physical Evaluation Board (PEB) and was denied one prior to his separation.  He continues that his previous case did not mention his physical profiles while he served in the military.  He also states that he was put on limited duty under a profile for his broken/sprained ankle to include his neck and back issues which affected his physical fitness.

4.  The applicant provides a memorandum of record Subject: Expiration of Term of Service (ETS) Physical, dated 5 May 1992; an Appointment Notice for Reserve Component Transition Office letter, with an appointment date 19 May 1992; a letter from The Office of the Secretary of Defense, dated 6 July 1994; several Department of Veterans Affairs (VA) Ratings; a VA Gulf War Registry Program letter, dated 18 December 2003; a 4-page VA Medical Assessment, dated 17 December 2003; and a U.S. Army Physical Disability Agency letter, dated 1 March 2004.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20050005146, on 14 February 2006.

2.  The applicant's contentions are new arguments which will be considered by the Board.  In addition, all the evidence provided is new evidence which will be considered by the Board.

3.  Records show that the applicant enlisted in the Regular Army on 7 July 1988. He successfully completed basic training and advanced individual training and was awarded military occupational specialty 63W (Wheel Vehicle Repairer).

4.  On 9 August 1991, the applicant was involved in a motor vehicle accident (MVA) when his vehicle was rear ended by an Army truck at an onbase intersection. 

5.  A DA Form 5181-R (Screening Note of Acute Medical Care), dated 26 August 1991, shows that the applicant was treated for tenderness of the posterior cervical spine, for pain in the right shoulder, and pain in the right arm.  

6.  An undated Standard Form (SF) 513 (Consultation Sheet) shows the applicant was treated for neck, right shoulder, and lower back pain.  He was given 48 hours quarters.

7.  A SF 600 (Chronological Record of Medical Care), dated 30 August 1991, shows that the applicant was referred to physical therapy for his neck and spine pain.  He was given follow-up treatment on 4 September 1991.

8.  On 15 October 1991, the applicant filed a claim for $50,000.00 damages for personal injury.  That claim was denied under the Feres Doctrine which precludes bodily injury claims by active duty military personnel.

9.  On 5 May 1992, the applicant's request for a complete separation medical examination was denied based upon the presence of a previous physical examination and indications in the record that his medical conditions had been properly evaluated by specialists.

10.  On 17 July 1992, the applicant was separated due to the expiration of his term of service and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) in pay grade E-4.  

11.  On 26 February 1993, the VA rated the applicant as 20 percent disabled due to cervical strain, 20 percent due to low back pain with traumatic arthritis, and zero percent disabled for diagnoses of right ankle injury, bilateral chrondromalacia, residuals of right shoulder strain, residuals of right shoulder strain and groin rash, and chronic neurological disorder manifested by headaches.



12.  A Standard Form 88 (Report of Medical Examination), dated 22 April 1995, shows that the applicant took a USAR physical examination.  The document further shows he was qualified for retention and he had a physical profile for hearing.

13.  The applicant was discharged from the USAR on 30 October 1995 upon completion of his obligated military service.  

14.  A DD Form 4/1 (Enlistment/Reenlistment Document - Armed Forces of the United States), dated 31 October 1995, shows in section B, item 8, that the applicant immediately reenlisted in the USAR for 6 years in the pay grade of E-4.

15.  A DD Form 4/1, dated 1 May 2002, shows in section B, item 8, that the applicant immediately reenlisted in the USAR for 6 years in the pay grade of E-4.

16.  On 5 August 2003, the applicant was authorized commissary and exchange privileges based upon VA ratings of at least a 60 percent service-connected disability. 

17.  The applicant provided a VA Gulf War Registry Program letter, dated 
18 December 2003, that shows he participated in the New Mexico Veterans Health Care System VA Persian Gulf Registry.

18.  The applicant provided a U.S. Army Physical Disability Agency letter, dated 
1 March 2004, that shows he was disapproved for combat-related special compensation.

19.  The applicant provided several VA Ratings, the latest dated 12 October 2005, which shows VA rated the applicant as 30 percent disabled due to degenerative arthritis of the spine, 20 percent due to traumatic arthritis, 
20 percent due to impairment of the left knee, 20 percent due to impairment of the right knee, 20 percent due to limitation of motion of the ankle, 20 percent due to paralysis of radicular nerve group, 10 percent due to chrondromalacia of the right knee, 10 percent due to fibromyalgia, and zero percent disabled for irritable bowel syndrome.

20.  Army Regulation 635-40 (Physical Evaluation), Chapter 3 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.  To be found unfit by reason of physical disability, individuals must be unable to perform the duties of grade, rank or rating.

21.  Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.  Section 1203, provides for the physical disability separation with severance pay of a member who has less than 20 years service and a disability rated at less than 30 percent.

22.  Army Regulation 140-111 (United States Army Reserve Reenlistment Program), prescribes policies and procedures for the USAR Reenlistment Program.  Table 2-1 provides the basic reenlistment eligibility criteria.  It states that a Soldier must meet the retention medical fitness standards in Army Regulation 40–501, provided a medical examination has been conducted within the time frame specified in AR 40–501 to be eligible for reenlistment.

23.  Title 38, United States Code, sections 1110 and 1131, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  

24.  Until certain provisions of the law were changed in fiscal year 2004, a common misconception was that veterans could receive both a military retirement for physical unfitness and a VA disability pension.  Under the law prior to 2004, a veteran could only be compensated once for a disability.  If a veteran was receiving a VA disability pension and the Board corrected the records to show the veteran was retired for physical unfitness, the veteran would have had to have chosen between the VA pension and military retirement.  The new law does not apply to disability retirees with less than 20 years of service and retirees 
who have combined their military time and civil service time to qualify for a civil service retirement.  It does apply to those retired under TERA (Temporary Early Retirement Authority).

DISCUSSION AND CONCLUSIONS:

1.  The applicant disagrees with the Board decision of his previous case and its failure to waive the 3-year statue of limitations.  However, the applicant's previous case was not denied based on failure to timely file.  The Board determined that the evidence presented did not demonstrate the existence of a probable error or injustice and that the overall merits of the case were insufficient as a basis for correction.  Therefore, by him not providing a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to file in that case there were no grounds for excusing failure to timely file.  

2.  The applicant contends that his previous case did not mention his physical profiles while he served in the military.  The only evidence that the applicant had a physical profile was his April 1995 USAR physical examination that showed he had a hearing profile.  There is no evidence and the applicant has not provided evidence that shows he had physical profiles for his injuries while serving on active duty.  Therefore, there is no basis for this argument.

3.  An award of a higher VA rating does not establish error or injustice on the part of the Army.  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 VA, 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.  Consequently, due to the two concepts involved, an individual medical condition, although not considered medically unfitting for military service at the time of process for separation, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

4.  The applicant requests that his records be corrected to show he was discharged from the Regular Army in 1992 by reason of physical disability.  However, there is no evidence of record that indicates he was ever unable to perform his military duties.  It appears when he separated from active duty he was medically eligible for retention.  

5.  Furthermore, evidence of record shows the applicant reenlisted in the USAR in October 1995 and May 2002 which is a further indication that he was not medically unqualified for retention.  The evidence of record and the applicant himself fail to indicate he could not perform his military duties.  He provides no explanation of why or how he twice reenlisted in the USAR when he was receiving such a high disability rating from the VA.  The only logical explanation is that he considered himself fit enough to continue to serve.

6.  Based on the above, the applicant has not submitted sufficient evidence to show he was eligible for referral to the physical disability processing or that he was ever unfit by reason of physical disability.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__CD ___  __MJF __  __JCR___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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 to amend the decision of the ABCMR set forth in Docket Number AR20050005146, dated 14 February 2006.




___ Ms. Carmen Duncan __
          CHAIRPERSON




INDEX

CASE ID
AR200600013796
SUFFIX

RECON
14 FEBRUARY 2006
DATE BOARDED
7 JUNE 2007
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
MR. SCHWARTZ
ISSUES         1.
108.0000.0000
2.

3.

4.

5.

6.