IN THE CASE OF:	  

		BOARD DATE:	  29 October 2009

		DOCKET NUMBER:  AR20090004592 


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, disability retirement.

2.  The applicant states that he was injured while on active duty which resulted in amputation of his “long finger” on his right hand which also required bone and skin grafts.  He states that he has painful and disfiguring scars on his right hand and right forearm and a traumatic injury to his right shoulder.  He states that he has loss of range of motion on his right hand and arm and that he was retained in the army for over 182 days for medical care.  

3.  The applicant states that he received a disability rating of 40% from the Department of Veterans Affairs (VA) and believes the Army erred in separating him.  He states that a medical board should have been convened and he should have been retired with a rating 40%.

4.  The applicant provides no additional evidence in support of his request.

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.  Records available to the Board indicate the applicant was inducted and entered active duty on 9 August 1966.

3.  On 29 February 1968 the applicant sustained an injury to his right third finger when hydraulic fluid under high pressure was injected into the tissues of the finger “as the patient was attempting to connect a pipe containing this fluid.”  The applicant was admitted to the hospital and underwent surgery.  The post-operative course was complicated by swelling and gangrenous change in the right middle finger.  On 6 March 1968 the applicant underwent a second operation and a “disarticulation of the right middle finger was performed” (amputation at the joint).  The wound was left open and ultimately healed except for one small area over the volar surface.  On 29 March 1968 the applicant underwent a skin graft over the area.  By 12 April it appeared there was a complete take on the skin graft and the donor site was well healed.  The applicant was started on active range of motion exercise at that time.  The applicant continued to experience issues with the wound healing and remained in a medical hold status. 

4.  By February 1969, the applicant’s medical records indicated all wounds were healed and his range of motion at that time was excellent.  The applicant underwent a separation physical examination and was found medically qualified for separation.  A 10 February 1969 medical statement contained in the applicant’s file notes the applicant was “found fit for separation.”

5.  On 12 February 1969 the applicant was released from active duty based on his expiration of term of service.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) notes he was retained in service for 182 days for the convenience of the Government as a result of his medical treatment.

6.  Army Regulation 40-501 (Standards of Medical Fitness) provides, in pertinent part, that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.

7.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) contains guidance on standards of unfitness because of physical disability.  It states, in pertinent part, that the mere presence of 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, rank, or rating.  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.  

8.  That same regulation states that commanders may refer members to the servicing medical treatment facility for medical evaluation when it is believed that the member is unable to perform the duties of his office, grade, rank, or rating because of physical disability.  Commanders of medical treatment facilities who are treating patients in an assigned, attached or outpatient status may also initiate action to evaluate a member’s physical ability to perform the duties of his office, grade, rank, or rating.

9.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher VA rating does not establish error or injustice in the 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 individual’s civilian employability.  Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at a different disability rating based on the same impairment.

DISCUSSION AND CONCLUSIONS:

1.  While the evidence of record does confirm the applicant underwent medical treatment for his right hand injury for nearly a year, there is no evidence available, and the applicant has not provided any, that shows the condition rendered him unfit to perform his duties.

2.  The applicant’s unit commander, or any of the medical professionals involved in the applicant’s medical treatment, could have initiated actions to refer the applicant for disability processing.  The fact that he was never referred for disability processing is evidence that his condition was not sufficiently disabling to warrant such processing.  It is noted that during the applicant’s final physical examination the evaluating physician concluded the applicant was medically qualified for separation.
3.  The fact that the VA, in its discretion, has awarded the applicant a disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish physical unfitness for Department of the Army purposes.

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.




      _______ _   _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)                                         AR20090004592





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ABCMR Record of Proceedings (cont)                                         AR20090004592



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