IN THE CASE OF:	  

		BOARD DATE:	        04 SEPTEMBER 2008

		DOCKET NUMBER:  AR20080008325 


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, in effect, that his honorable discharge be changed to reflect that he was retired by reason of physical disability. 

2.  The applicant states, in effect, that he should have been retired by reason of physical disability instead of being discharged because shortly after his discharge, he was granted a 40% disability compensation rating by the Department of Veterans Affairs (VA). 

3.  The applicant provides a copy of his VA Rating Decision. 

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 enlisted in the Regular Army in Raleigh, North Carolina on 14 June 1985 for a period of 4 years, training as a unit level communications maintainer and a cash enlistment bonus.  He completed his basic combat training at Fort Dix, New Jersey and his advanced individual training (AIT) at Fort Sill, Oklahoma.  He was then transferred to Fort Lewis, Washington, where he remained until 4 February 1987, when he was transferred to Germany.  He was advanced to the pay grade of E-4 on 1 August 1986.

3.  On 22 December 1988, he reenlisted for a period of 3 years and assignment back to Fort Lewis.  He departed Germany on 25 January 1989 for assignment to Fort Lewis.

4.  On 29 September 1991, the applicant’s commander initiated a request to bar the applicant from reenlistment.  He cited as the basis for his recommendation the applicant’s lack of discipline and inability to control his personal finances, several instances of failure to repair, failure to come to work, and his overall duty performance.  The applicant indicated that he desired to submit a statement in his own behalf but failed to do so.

5.  The appropriate authority approved the bar to reenlistment on 10 October 1991 and the applicant indicated that he intended to appeal the bar.  However, he failed to submit his appeal within the 7 days he was allotted. 

6.  On 9 December 1991, he was honorably released from active duty (REFRAD) due to the expiration of his term of service and the Holiday Early Transition Program.  He had served 6 years, 5 months, and 26 days of total active service and was paid $9,104.94 in separation pay benefits.  He was transferred to the United States Army Reserve (USAR) Control Group (Reinforcement).  On 9 February 1993, he was honorably discharged from the USAR.

7.  On 2 April 1992, the VA granted the applicant a 40% combined disability rating for bilateral pes planus (10%), fracture of the left knee with history of Osgood-Schlatter disease (10%), head injury with headaches (10%), and fracture of the right wrist (10%).    

8.  Army Regulation 635-40, Physical Evaluation for Retention, Retirement, or Separation, provides in pertinent part, that all relevant evidence must be considered in evaluating the fitness of a Soldier.  Findings with respect to fitness or unfitness for military service will be made on the basis of the preponderance of the evidence.  Thus if the preponderance of evidence indicates unfitness, a finding to that effect will be made.  This is particularly true if medical evidence 

establishes the fact that continued service would be harmful to the Soldier’s health or would prejudice the best interests of the Army.  Although the ability of a Soldier to reasonably perform his or her duties in all geographic locations under all conceivable circumstances is a key to maintaining an effective and fit force, this criterion (world-wide deployability) will not serve as the sole basis for a finding of unfitness.  It also provides that the mere presence of an 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 may reasonably be expected to perform because of his or her office, rank, grade or rating.  

9.  Title 38, United States Code, sections 1110 and 1131, permit the DVA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a DVA rating does not establish error or injustice in whether or not an Army rating is given, or in an Army rating that is given.  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 DVA, 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.  Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at different positions.  Furthermore, unlike the Army, the DVA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings.  The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while the DVA may rate any service connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.

DISCUSSION AND CONCLUSIONS:

1.  The fact that the DVA awarded the applicant a 40 percent service-connected disability rating was noted.  However, as previously mentioned, an award of a DVA rating does not establish error or injustice in whether or not an Army rating is given, or in an Army rating that is given.  The DVA, 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.  Accordingly, it is not unusual for the two agencies of the 

Government, operating under different policies, to arrive at different positions.  Furthermore, unlike the Army, the DVA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings.  The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while the DVA may rate any service connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.  

2.  The applicant has failed to show through the evidence of record and the evidence submitted with his application that he was unable to perform the duties of his office, rank, grade or rating prior to his REFRAD or that he was deemed medically unfit for separation and should have been processed through the Physical Disability Evaluation System (PDES).  

3.  Therefore, in the absence of sufficient evidence to show that he was medically unit for separation, it must be presumed that he was properly discharged at the expiration of his term of service in accordance with applicable laws and regulations with no violations of any of the applicant’s rights.  Likewise, there appears to be no basis to grant his request.  

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 has failed to submit evidence that would satisfy this requirement.                    

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   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.



      ___        XXX                ___
                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)                                         AR20080008325



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ABCMR Record of Proceedings (cont)                                         AR20080008325



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