IN THE CASE OF:	  

		BOARD DATE:	        13 NOVEMBER 2008

		DOCKET NUMBER:  AR20080013751 


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 discharge by reason of disability with severance pay be voided and that he instead be retired by reason of physical disability.

2.  The applicant states, in effect, that during his 12+ years of active duty he had a very successful career and when he was initially rated as being 10% disabled, he appealed that decision and fought to be medically retired.  However, his appeal was denied and he was subsequently discharged by reason of physical disability with a 20% disability rating and entitlement to severance pay.  He continues by stating that at the time he was under the impression that the medical review board was the final authority and that he had no recourse.  He goes on to state that he subsequently went to work for the United States Postal Service (USPS) and as the years passed his condition worsened to the point that he eventually requested disability retirement and was granted a medical retirement from the USPS in June 2005, with a combined 29 years of Federal Service.  He further states that he believes that the Army had a specialty that he could have been utilized in instead of being discharged and contends that he should have been given a higher disability rating and retired by reason of physical disability because the Army knew his condition would worsen. 

3.  The applicant provides a two-page statement explaining his application, a copy of his DA Form 2-1, the front page of a DA Form 199 (Physical Evaluation Board Proceedings), a copy of the transcript from his disability review board and a letter from his USPS supervisor to the Department of Veterans Affairs.

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 Portland, Oregon on 31 January 1973 for a period of 3 years under the combat arms buddy plan and assignment to the 9th Infantry Division.  He completed his training and remained on active duty through a series of continuous reenlistments.  He served as an infantryman until 1977 when he underwent training as an ammunition storage specialist.  He was promoted to the pay grade of E-7 on 31 March 1983.

3.  He was assigned to Fort Bliss, Texas on 19 March 1982 for duty as an ammunition inspector.

4.  On 20 March 1984, he was issued a permanent physical profile (311111) which restricted lifting more than 40 pounds, no prolonged sitting or standing for more than an hour at a time, and that he be given an alternate Army Physical Fitness Test.

5.  The medical and physical evaluation board proceedings are not present in the available records.  However, the documents provided by the applicant indicate that based on the applicant's request on 5 February 1985, the applicant requested that he be allowed to appear before a formal Physical Evaluation Board (PEB) because he did not agree with the findings of the informal board and he did so on 21 February 1985, represented by military counsel.

6.  After reviewing the available evidence in his case and hearing testimony from the applicant, the PEB recommended that he be discharged by reason of physical disability with severance pay based on a 20% disability rating.  Just prior to the adjournment of the PEB, the applicant was informed that the PEB actions would not become final until it was approved by the office of the Secretary of the Army and that he had the right to rebut the findings and/or recommendations and that he must do so within 3 working days after receipt of the board proceedings.  There is no indication that the applicant elected to appeal the findings of that board.

7.  On 21 May 1985, the applicant was honorably discharged under the provisions of Army Regulation 635-40, paragraph 4-24-3 due to physical disability with severance pay.  He had served 12 years, 3 months and 17 days of total active service.

8.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states, in pertinent part, 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.  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.  That regulation also provides the provisions for Soldiers to appeal the decisions of the various boards and agencies involved in determining a Soldier’s disability ratings.  

9.  There is a difference between the Department of Veterans Affairs (VA) and the Army disability systems.  The Army’s determination of a Soldier’s physical fitness or unfitness is a factual finding based upon the individual’s ability to perform the duties of his or her grade, rank or rating.  If the Soldier is found to be physically unfit, a disability rating is awarded by the Army and is permanent in nature.  The Army system requires that the Soldier only be rated as the condition(s) exist(s) at the time of the PEB hearing.  The VA may find a Soldier unfit by reason of service-connected disability and may even initially assign a higher rating.  The VA’s ratings are based upon an individual’s ability to gain employment as a civilian and may fluctuate within a period of time depending on the changes in the disability.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it must be presumed that the applicant’s disability was properly rated in accordance with the VA Schedule for Rating Disabilities (VASRD) and his separation with severance pay was in compliance with laws and regulations in effect at the time.

2.  The applicant was found unfit for duty and was assigned a combined disability rating of 20% for his unfitting conditions as they existed at the time of his PEB hearing.   Department of the Army disability decisions are based upon observations and determinations existing at the time of the PEB hearing.  The Department of the Army ratings become effective the date that permanency of the diagnosis is established.

3.  The applicant has not provided sufficient evidence to show that he was not afforded proper disability processing or that the evaluation and the rating rendered by the PEB was incorrect.

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

___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.




      _______ _ 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)                                         AR20080013751





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ABCMR Record of Proceedings (cont)                                         AR20080013751



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