IN THE CASE OF:	  

	BOARD DATE:	  11 June 2008

	DOCKET NUMBER:  AR20080005734 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests correction of his records to show he was medically retired instead of honorably separated.

2.  The applicant states that he was under medical treatment at the time of his separation.

3.  The applicant provided the following additional documentary evidence in support of his request: 

	a.  DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 15 May 1970.

	b.  Standard Form (SF) 600 (Chronological Record of Medical Care), dated 24 April 1970.

	c.  SF 509 (Medical Record-Progress Notes), dated on miscellaneous dates in 1979. 

	d.  Three letters, dated May 1972, in the Spanish language.  

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 records show that he was inducted into the Army of the United States on 16 May 1968.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 94B (Cook).  The highest rank/grade the applicant attained during his military service was specialist four (SP4)/E-4.  He was honorably separated and transferred to the U.S. Army Reserve Control Group (Annual Training) on 15 May 1970.  

3.  The applicant's records further show that he was awarded the National Defense Service Medal and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

4.  The applicant’s SF 513 (Consultation Sheet), dated on 13, 22, and 27 April 1970, show that he was treated for pain, nausea, and vomiting, and was prescribed medications, at Fort Hood, Texas, and was instructed to follow up with the Veterans Administration (VA) medical clinic, after separation.

5.  On 15 May 1970, the applicant underwent a separation medical examination at Fort Hood, Texas.  He indicated that he suffered from frequent headaches and had stomach, liver, or intestinal trouble.  The attending physician remarked that the applicant suffered from frequent headaches and ulcers.

6.  The applicant provided a SF 600, dated 24 April 1970, with no identifying information, such as the patient name, service number, the date of birth, grade, or unit.  This form shows that a patient had a disease and was treated with medications until his separation. 

7.  The applicant provided copies of his progress notes, dated throughout 1979, showing that he had diabetes and ulcer disease.  

8.  The applicant’s records do not reveal if he was issued a permanent physical profile or that he underwent a medical evaluation board (MEB) or a physical evaluation board (PEB).


9.  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 rating at least 30 percent.  Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rating at less than 30 percent.  

10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), 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 chapter 3 of Army Regulation 40-501.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

11.  Paragraph 3-1 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 reasonably may be expected to perform because of his or her office, rank, grade or rating.  The Army must find that a service member is physically unfit to reasonably perform their duties and assign an appropriate disability rating before they can be medically retired or separated.

12.  Paragraph 3-2b provides for retirement or separation from active service.  This provision of regulation states 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.  The regulation also states 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. 

13.  Title 38, U.S. Code, sections 1110 and 1131, permit the Department of Veterans Affairs (VA) to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish error or injustice in the Army rating.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career.  The DVA does not have authority or responsibility for determining physical fitness for military service.  The DVA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. As a result, these two Government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment.  Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his discharge narrative reasoning should be changed to medical disability retirement was carefully considered.  However, there is insufficient evidence to show he should have been medically discharged or retired by reason of physical disability. 

2.  The applicant’s records show that he was ill around the time of his separation and that he was treated at Fort Hood, Texas, with medications.  Furthermore, he was instructed to follow up through the VA for further evaluation.  However, there is no evidence that the applicant was issued a permanent profile or that he underwent an MEB and/or a PEB.  He was honorably separated upon completion of his period of service.  The Army must find that a Soldier is physically unfit to reasonably perform their duties and assign an appropriate disability rating before they can be medically retired or separated.

3.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier’s separation and can only be accomplished through the physical disability evaluation system.  The DVA evaluates veterans throughout their lifetime, granting or adjusting the percentage of disability based upon that Agency's examinations and findings.  Any changes in the severity of a disability should be referred to that 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 did not submit evidence that would satisfy this requirement.  In view of the circumstances in this case, there is insufficient evidence to grant the requested relief.   The applicant has not shown error, injustice, or inequity for the relief he requests.




BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ___X ___  ___X____  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.



      __________X_____________
      	CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.


ABCMR Record of Proceedings (cont)                                         AR20080005734



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ABCMR Record of Proceedings (cont)                                         AR20080005734



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