IN THE CASE OF:	

		BOARD DATE:	  24 September 2008

		DOCKET NUMBER:  AR20080007605 


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 not considered for medical retirement when he was forced out of the Army due to medical reasons.  He also states that he broke his ankle and was not fit to serve any other position within the Army.  He served over 11 years of honorable service and feels that he should have been medically retired.  

3.  The applicant did not provide any additional documentary evidence in support of his application.  

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 enlisted in the Regular Army for a period of 4 years on 4 March 1963.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 64B (Heavy Vehicle Driver).  He was honorably separated and transferred to the U.S. Army Reserve Control Group (Reinforcement) on 2 March 1966.  The highest rank/grade he attained during this period of military service was specialist four (SP4)/E-4 (Temporary).

3.  After a break in service, the applicant enlisted in the Regular Army for a period of 3 years in the rank/grade of private (PV2)/E-2 and in MOS 64B on 30 November 1968.  He was honorably discharged on 14 January 1971 for the purpose of immediate reenlistment and reenlisted for a period of 6 years on 15 January 1971.  

4.  The applicant’s records show he was discharged on 14 January 1977.  The DD Form 214 he was issued at the time shows he was honorably discharged for completion of required service.  This form further confirms he completed 11 years, 1 month, and 14 days of creditable military service. 

5.  Headquarters, 1st Infantry Division, Fort Riley, Kansas, memorandum, dated 14 January 1977 shows the applicant was discharged in accordance with chapter 2 of Army Regulation (AR) 635-200, by reason of completion of required service. 

6.  Item 4 (Assignment Consideration) of the applicant’s DA Form 2-1 (Personnel Qualification Record) shows the entry “Mixed bilateral N/S type hearing loss/No assignment involving habitual or frequent exposure to loud noise or firing of weapon (Not to include firing for POR qualification), If firing ear protection should be worn, no duty requiring normal hearing in both ears.”  

7.  Item 35 (Record of Assignments) of the applicant’s DA Form 2-1 shows the applicant was a patient at the U.S. Army General Hospital (USAGHL), Germany, on 26 August 1974 and at the Medical Holding Company, U.S. Army Medical Department Activity (MEDDAC), Fort Riley, Kansas, on 5 September 1974.  However, there is no indication of the type of illness, disease, or injury that led to his hospitalizations. 

8.  The applicant’s medical records are not available for review with this case.

9.  The applicant’s records do not indicate that the applicant was issued a medical profile or that he underwent a medical evaluation board (MEB) or a physical evaluation board (PEB). 

10.  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.  

11.  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.

12.  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.

13.  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. 

14.  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 contends that he should have been considered for medical retirement because he broke his ankle and was found not fit to serve any other position in the Army.  

2.  The applicant’s records show that he was a patient at a hospital; however, there is no indication of the reason for his admittance, illness, disease, or injury.  Additionally, the applicant’s records show he also had hearing loss; however, there is no evidence that this condition led a determination of physical unfitness.

3.  The applicant was honorably discharged for completion of his term of service. There is no evidence that he was forced out or denied a medical retirement.  Furthermore, there is no evidence in the available records and the applicant did not submit any substantiating evidence that shows he was issued a permanent profile or that he underwent a MEB and/or PEB.  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.

4.  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 Department of Veterans Affairs (DVA) on the other hand, 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.

5.  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)                                         AR20080007605





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ABCMR Record of Proceedings (cont)                                         AR20080007605



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