IN THE CASE OF:	  

		BOARD DATE:	        16 OCTOBER 2008

		DOCKET NUMBER:  AR20080011410 


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 that his retirement for length of service be changed to a retirement by reason of physical disability with a 40 percent disability rating.

2.  The applicant states that he enlisted in 1962 and was transferred to Vietnam in 1968.  After returning from Vietnam in 1969 he began having a non-venereal penile discharge and his left kidney was removed.  He goes on to state that he was returned to duty without being given a physical/medical profile.  He continues by stating that since 2006 he has been rated as being 30% disabled by the VA effective since 1971, when he had his kidney removed and 10% for back pain since 1983.  He also states that he never appeared before a medical evaluation board to evaluate his disabilities and believes that he should have been retired by reason of physical disabilities so that he could have taken advantage of the monetary advantages that would have been afforded to him had he been retired with a disability rating.  As a result, he has been denied such benefits since his retirement and he desires to be compensated for that loss. 

3.  The applicant provides a copy of his claim presented under the Federal Tort Claims Act for $148,104.22 for personal injury claims, copies of documents related to requests for copies of his military records, copies of his DD Forms 214 and retirement orders, a copy of his Personnel Qualification Record (DA Form    2-1), a copy of his VA Rating Decision, a copy of his marriage license and divorce related documents, a four-page letter addressed to the Board, copies of newspaper articles, copies of medical reports, and copies of documents he submitted for a claim of combat-related special compensation, 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 was born on 15 October 1940 and enlisted in Columbus, Ohio on 1 June 1962 for a period of 3 years.  He completed his training at Fort Knox, Kentucky and was transferred to Korea for duty as a general clerk in a medical unit.  He was advanced to the pay grade of E-4 on 21 November 1963.   

3.  He completed his tour in Korea on 14 December 1963 and was transferred to Fort Hood, Texas for duty as a supply clerk.  He remained at Fort Hood until 17 July 1965 when he was transferred to Okinawa for duty as an ordnance and supply parts specialist.  He was promoted to the pay grade of E-5 on 28 October 1965.  He departed Okinawa on 3 December 1966 and was transferred to Fort Benning, Georgia, where he remained until 29 January 1968, when he was transferred  to Vietnam for assignment to the United States Army Depot – Cam Rahn Bay for duty as a section chief. 

4.  He departed Vietnam on 11 January 1969 and was transferred to Fort Sill, Oklahoma.  He was promoted to the pay grade of E-6 on 22 July 1969.  

5.  He remained on active duty through a series of continuous reenlistments, served another tour in Korea and two tours in Germany, and was promoted to the pay grade of E-7 on 1 June 1976.  

6.  A review of his records shows that throughout his career, he received mostly maximum evaluation reports and there is no evidence that he was issued a physical profile or that he was ever deemed to be physically unfit to perform the duties of his military occupational specialty.

7.  On 30 August 1984, the applicant submitted an Application for Voluntary Retirement to be effective 1 November 1984.  His application was approved on 31 October 1984; he was honorably released from active duty (REFRAD) at Fort Jackson, South Carolina; and he was transferred to the Retired List effective 1 November 1984.  He had served 22 years, 5 months, and 1 day of total active service.

8.  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.

9.  Army Regulation 635-40, Physical Evaluation for Retention, Retirement, or Separation, 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.  This regulation also provides, in pertinent part, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his retirement by reason of length of service on 31 October 1984 should be changed to a retirement by reason of physical disability due to at least a 30 percent permanent physical disability. 

2.  The fact that the DVA awarded the applicant a 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.    

3.  The applicant’s records contain no indication that the applicant at any time was deemed physically unfit to perform the duties of his office, rank, grade or rating while on active duty.  Accordingly, he was deemed fit for retention and/or separation at the time of his separation.

4.  While the applicant may be experiencing some difficulties now, 20+ years after his retirement, that in itself does not establish that he was physically unfit for separation in 1984 or that he should have been processed for separation through the Physical Disability Evaluation System.

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 has failed to submit evidence that would satisfy this requirement.  In view of the foregoing, there is no basis for granting relief to the applicant in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  __X_____  ___X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1. 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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Vietnam War.  The applicant and all Americans should be justifiably proud of his service in arms.



      _________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)                                         AR20080011410



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ABCMR Record of Proceedings (cont)                                         AR20080011410



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