IN THE CASE OF:	  

		BOARD DATE:	        18 MARCH 2009

		DOCKET NUMBER:  AR20080019090 


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, as the legal representative for his brother, a former service member (FSM), requests, in effect, that his brother receive a disability retirement. 

2.  The applicant states that his brother received a head injury while in the service which resulted in a seizure disorder. 

3.  The applicant provides a Power of Attorney; a Department of Veterans Affairs (DVA) Board of Veterans' Appeals, dated 4 March 2008; and a DD Form 214 (Report of Separation from the Armed Forces of the United States) 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 FSM’s military records are not available to the Board for review.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center in 1973.  It is believed that the FSM’s records were lost or destroyed in that fire.  However, there were sufficient documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case.  

3.  The FSM was inducted on 1 September 1953.  

4.  Discharge orders and the FSM's DD Form 214 show he was honorably discharged on 22 June 1955 under the provisions of Army Regulation 635-205, paragraph 2.  He had served a total of 1 year, 9 months, and 22 days of active service.  

5.  There is no evidence in the available records which shows the FSM was diagnosed with any medical condition prior to his discharge on 22 June 1955.

6.  In support of his claim, the applicant provided a DVA Board of Veterans' Appeals, dated 4 March 2008, which states, in pertinent part, that the FSM's appeal (whether new and material evidence had been received to reopen a claim of entitlement to service connection for a seizure disorder) was remanded.   

7.  Army Regulation 635-205, in effect at the time, set forth the basic authority for the separation of enlisted personnel for convenience of the government.  Paragraph 2 stated, in pertinent part, that separation of enlisted personnel was the prerogative of the Secretary of the Army and would be effected only by his authority.  Except as delegated by these regulations or by special Department of the Army directives, the discharge or release of any enlisted member of the Army for convenience of the Government would be at the Secretary’s discretion and with the type of discharge as determined by him.  Such authority may be given either in an individual case or by an order applicable to all cases specified in such order.

8.  Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

9.  Army Regulation 635-40 governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states 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 Soldier reasonably may be expected to perform because of his or her office, grade, or rank.  It 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.  When a Soldier is being processed for separation 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 indicates that a Soldier is fit.  

10.  Title 38, U. S. Code, sections 310 and 331, permits the DVA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The DVA, however, is not required by law to determine medical unfitness for further military service.  The DVA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual’s medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for DVA benefits based on an evaluation by that agency.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant contends that the FSM received a head injury while in the service which resulted in a seizure disorder, there is no medical evidence of record that shows the FSM had any medical condition prior to his release from active duty on 22 June 1955.  There is also no evidence of record to show he was ever medically unfit to perform his duties.  Therefore, there is no basis for granting a disability retirement. 

2.  The DVA does not fall under the purview of this Board or the Department of Defense.  The DVA, operating under its own policies and regulations, assigns disability ratings as it sees fit.

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)                                         AR20080019090





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ABCMR Record of Proceedings (cont)                                         AR20080019090



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