IN THE CASE OF:
BOARD DATE:
DOCKET NUMBER: AR20080008622
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 her honorable discharge be corrected to reflect a medical discharge.
2. The applicant states that the Department of Veterans Affairs (VA) reopened her claim and granted her a service-connected disability.
3. The applicant provides her VA rating decision dated 1 November 2007 which shows she was awarded a 10% rating for coccydynia (pain in the coccyx [a small bone that articulates with the sacrum and that usually consists of four fused vertebrae which form the terminus of the spinal column] and adjacent regions), and a 10% rating for a painful scar, residual of pilonidal cystectomy; and her separation document (DD Form 214).
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicants military records show that she enlisted in the Regular Army on 1 August 1979.
3. While attending basic combat training, on 28 August 1979 the applicant was notified of her commanders intent to recommend her discharge under the Trainee Discharge Program (TDP), and of her rights in conjunction with that recommendation. The applicant indicated that she did not want to submit a statement in her own behalf, but indicated that she did want a separation medical examination (which is not contained in her military records).
4. Her commander forwarded his recommendation for discharge, which was approved by the appropriate separation authority. Accordingly, on 14 September 1979, the applicant was honorably discharged under the TDP. She had 1 month and 14 days of active service.
5. Title 38, United States Code, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a VA rating does not establish error or injustice in the lack of an Army rating. 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 VA, 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 individuals employability. Accordingly, it is not unusual for the VA to award a disability rating to a veteran who was separated for reasons other than physical unfitness. Furthermore, unlike the Army the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agencys examinations and findings. The Army rates only conditions determined to be physically unfitting, thus compensating the individual for loss of a career; while the VA may rate any service connected impairment, in order to compensate the individual for loss of civilian employability.
6. 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 rated at least 30 percent.
7. Title 10, United States Code, section 1203, provides for the physical disability separation with severance pay of a member who has less than 20 years service and a disability rated at less than 30 percent.
DISCUSSION AND CONCLUSIONS:
1. There is no evidence to show that the applicant was medically disqualified or physically unfit while she was on active duty. While the applicants final physical examination is not contained in her military records, it is assumed she was given such an examination based upon her request. If a medically unfitting condition had been diagnosed at that time, separation action would have been reverted to the disability evaluation system. As such, she was not entitled to be discharged with severance pay or retired due to physical unfitness.
2. The fact that the VA awarded her a disability rating 28 years after her discharge does not show that she was medically disqualified or physically unfit while she was on active duty.
3. As such, there is no basis for granting her request.
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) AR20080008622
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ABCMR Record of Proceedings (cont) AR20080008622
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