RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 January 2008
	DOCKET NUMBER:  AR20070011551 


	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. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Mr. James Vick

Chairperson

Mr. Thomas Ray

Member

Mr. Jeffrey 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, in effect, that his honorable discharge be changed to a medical retirement. 

2.  The applicant states, in effect, that he is 100 percent disabled, unemployable through the VA (Veterans Administration) System, and receives all financial disability from the VA and not from the Army.  He had every intention on completing a full 20-30 years of service on top of the reserve time that he had already completed.  He even had a re-enlistment date set when he was told about the MEB (Medical Evaluation Board).  He knows that there is no physical/monetary benefit to earn from changing his medical separation to a medical retirement but wants the honor of saying that he is retired.

3.  He states that he continued to have and show respect for the military and support them in different ways.  He moved near Fort Hood, Texas, to be near friends that he was stationed with while in service and volunteered on occasion when he is able to.  By changing his status to medically retired, it would not jeopardized his benefits and would not become a financial burden for the United States Army.  He is only asking that he be allowed the honor of being retired, which was one of his goals while serving his country.

4.  The applicant provides a copy of his VA (Veterans Administration) rating decision and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of his request.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.



2.  The applicant's military record shows he enlisted in the Regular Army on 3 October 1991.  He was trained as a Light Wheel Vehicle Mechanic, in military occupational specialty (MOS), 63B.  He was promoted to pay grade E-5 on 1 April 1998.  

3.  The applicant’s medical records, medical evaluation board (MEB), and physical evaluation board (PEB) are unavailable for review by this Board.

4.  The applicant was honorably discharged on 24 September 1999, under the provisions of Army Regulation 635-40, paragraph 4-24b(3), disability with severance pay, in the pay grade of E-5.  He completed 7 years, 11 months, and 22 days of net active service.   Item 18 (Remarks) of his DD Form 214 states that he was paid severance pay in the amount of $30,245.40  

5.  The applicant provides a copy of his VA Rating Decision, dated 13 May 2003, which shows that he was granted a 70 percent service connected disability, for herniated nucleus pulposus, L5-S1, with radiculopathy, but was paid at 100 percent based on his unemployability.  

6.  Army Regulation 635-40 establishes the Army physical disability evaluation system and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  It provides for medical evaluation boards, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in AR 40-501, chapter 3.  If the medical evaluation board determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a physical evaluation board.

7.  Physical evaluation boards are established to evaluate all cases of physical disability equitability for the Soldier and the Army.  It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendation to establish eligibility of a Soldier to be separated or retired because of physical disability.



8.  Paragraph 4-24 of Army Regulation 635-40 pertains to disposition by the Total Army Personnel Command (PERSCOM) upon the final decision of the Physical Disability Agency (PDA).  It states that PERSCOM will dispose of the case by publishing orders or issuing proper instructions to subordinate headquarters, or return any disability evaluation case to the United States Army Physical Disability Agency (USADPA) for clarification or reconsiderations when newly discovered evidence becomes available and is not reflected in the findings and recommendations.  Subparagraph 4-24b(3) applies to separation for physical disability with severance pay.

9.  An award of a VA rating does not establish entitlement to medical retirement or separation from the Army.  Operating under its own policies and regulations, the VA, which has neither the authority nor the responsibility for determining medical unfitness for military duty, awards ratings because a medical condition is related to service ("service-connected") and affects the individual's civilian employability. 

10.  Furthermore, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.

11.  Title 38, United States Code permits the VA to award compensation for disabilities which were incurred in or aggravated by active service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's medical records, MEB, and PEB are unavailable for review.  

2.  The applicant was honorably discharged on 24 September 1999, under the provisions of Army Regulation 635-40, chapter 4, paragraph 4-24b(3), for disability, with severance pay.

3.  The applicant's contentions were considered; however, they do not support a change in his honorable discharge to a medical retirement.

4.  The applicant applied to VA after his release from active duty.  He was awarded a 70 percent for his service-connected disability for herniated nucleus pulposus, L5-S1, with radiculopathy, but was paid at 100 percent based on his unemployability.  

5.  In accordance with governing laws, the VA is the Department responsible for compensating veterans when service-related physical conditions cause social or industrial impairment after a Soldier's discharge.

6.  Any rating action by the VA does not necessarily demonstrate an error or injustice on the part of the Army.  The VA, operating under its own policies and regulations, assigns disability ratings based on those policies and regulations and have no bearing on what the Army did in processing the Soldier for medical separation.  

7.  In view of the circumstances in this case, the applicant is not entitled to a change of his honorable discharge to show that he was medically retired.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request and he has not shown error, injustice, or inequity for the relief, he now seeks.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___JV___  __TR____  __JR ___  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 for correction of the records of the individual concerned.




_____James Vick________
          CHAIRPERSON




INDEX

CASE ID
AR20070011551
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20080122
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
19990924
DISCHARGE AUTHORITY
AR 635-40, Paragraph 2-24b(3)
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
108
2.

3.

4.

5.

6.