RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	   16 August 2007
	DOCKET NUMBER:  AR20070004225 


	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.


Ms. Catherine C. Mitrano

Director

Ms. Jeanne Marie Rowan

Analyst

The following members, a quorum, were present:


Mr. William Powers

Chairperson

Mr. William Blakely

Member

Mr. Donald Lewy

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 that his physical evaluation board proceedings be corrected to show he was given a 60 percent disability rating.

2.  The applicant states that the person who prepared his DA Form 199 (Physical Evaluation Board Proceedings) on 18 June 1982 did not add the two physical disability ratings correctly.  He would like this addition error rectified.

3.  The applicant provides copies of his DA Form 199 dated 18 June 1982, his DA Form 3947 (Medical Board Proceedings) dated 11 June 1982, and a personal letter addressed to the U. S. Army Physical Disability Agency dated 8 December 2006.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 24 August 1982, the date of his retirement.  The application submitted in this case is dated 17 March 2007.

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 enlisted in the Regular Army on 2 July 1980. Records show that he completed basic combat and advanced individual training and was awarded the military occupational specialty (MOS) 76W (Petroleum Supply Specialist).  The highest rank he attained while serving on active duty was private first class/pay grade E-3.  He was retired on 24 August 1982 with an honorable characterization of service.  The reason for his retirement was permanent physical disability.

4.  On 21 May 1982, the applicant was examined by medical authorities at the McDonald Army Community Hospital, Fort Eustis, Virginia.  Medical records show the applicant was examined for the purpose of a medical board to determine his fitness for continued active duty service.  The applicant 
and medical examiner annotated on his Standard Form 93 (Report of Medical History) that he had scoliosis of the spine, sustained a back injury due to a privately owned vehicle (POV) accident, and that he did not have vision in both of his eyes.  The medical examiner prepared Standard Form 88 (Report of Medical Exam) which shows the applicant has scoliosis, a fracture of the T7 on the spine, and is blind in his right eye. 

5.  On 8 June 1982, medical authorities at Fort Eustis, Virginia, prepared in detail a Standard Form 502 (Narrative History) for the applicant's medical board proceedings.  The medical narrative history report shows the applicant was injured in a POV accident on 29 November 1980.  The injuries included a contusion of the right eye, contusion of the right lung, and a compression fracture of T7 on his spine.  He also had a renal contusion with microscopic hematuria and he fractured his 11th rib on the right posterior.  The medical findings conclude that the applicant had scoliosis of the upper thoracic spine, and that there was a compression fracture of the body of T7 with marked loss in stature and anterior wedging.  The ophthalmologist findings were that the applicant had optic atrophy with macular pigmentary disturbance or Marcus-Gunn pupil on his right eye which means he is blind in the right eye.  Records further show that the applicant had not worked in his MOS for seven months due to the loss of his vision in his right eye and chronic back pain.  He was not able to either fire his weapon or drive government vehicles.  The examining medical authority recommended that the applicant's medical case be referred to the U. S. Army Physical Evaluation Board for final disposition with a recommendation of discharge from active federal service.

6.  On 11 June 1982, the applicant's medical file and physical evaluation documents were considered by a Medical Evaluation Board (MEB).  The MEB found the applicant medically unfit for further military service.  The MEB recommended that the applicant's file be presented to a Physical Evaluation Board (PEB). 

7.  On 14 June 1982, the applicant was informed and agreed with the MEB's findings and recommendations.  He authenticated DA Form 3947 (Medical Board Proceedings).  

8.  On 18 June 1982, the applicant's medical records and medical review board proceedings were evaluated by a PEB.  The PEB determined that the applicant was unfit and recommended a combined physical disability rating of 50 percent and that he be retired permanently from the service.  


The PEB disability description is as follows:

	a.  Veterans Affairs Code 8285 and 8295 (Disease of the Cranial Nerves)  "Fracture of T7 with resultant dorsal back pain.  Loss of 50 percent of height of vertebra with 10 percent added for demonstrable deformity."  The recommended disability rating was 30 percent; and

	b.  Veterans Affairs Code 6070 (Diseases of the Eye) "Impairment of visual acuity, light perception only in right eye and 20/20 in left eye."  The recommended disability rating was 30 percent.  

9.  On 24 August 1982, the applicant was honorably released from active duty for permanent physical disabilities and he was issued his DD Form 214 (Certificate of Release or Discharge from Active Duty).  He was placed on the retired list the following day.

10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states, in pertinent part, a combined rating establishes the level of uncompensated work potential of a rated individual who has several ratable disabilities.  Direct addition of percentages of disabilities is not applicable when there are two or more disability ratings.  To this affect, a person is rated for his most severe disability first and then his other disabilities, in order of severity.  Thus a person having a first rated disability of 30 percent is anticipated to have an efficiency of 70 percent.  (The individual is compensated for a 30 percent loss of his or her income potential, leaving that person with a 70 percent earning capacity.)  If the Soldier has a second disability rated at 30 percent, then he or she is considered to have lost 30 percent of the already adjusted 70 percent earning potential or efficiency.  When you multiply 30 percent by 70 percent (3x7), the result is 21 or 21 percent.  Therefore, a 30 percent disability only reduces the earning potential of a person who is already 30 percent disabled by 21 percent.  The 21 percent is added to the existing 30 percent disability with a combined disability rating of 50 percent after rounding down.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his physical disability ratings should total 60 percent and not 50 percent as reflected on his Physical Evaluation Board Proceedings dated 18 June 1982.  He believes there was a clerical error made in the addition calculations on the form.


2.  When the applicant was rated 30 percent disabled for one condition, he only had 70 percent of uncompensated work potential.  Therefore, his second 30 percent rating resulted in an additional 21 percent disability rating (3x7).  The applicant's 50 percent disability rating was derived from adding 30 to 21, which equals 51, which was required to be rounded down to 50 percent.

3.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 24 August 1982; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 23 August 1985.  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

__WP ___  __WB___  __DL ___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate the existence of a probable error.  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.




_____ William Powers_______
          CHAIRPERSON
INDEX

CASE ID
AR20070004225
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070816
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.
108.02
2.

3.

4.

5.

6.