IN THE CASE OF:	  

		BOARD DATE:	  13 August 2009

		DOCKET NUMBER:  AR20090004653 


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 correction of his records to show he was medically retired based on permanent disability.

2.  The applicant states, in effect, he acquired a nervous condition during his military service, due to simulation of war, and he was improperly discharged.  He also states he was unable to work in gainful employment and the Department of Veterans Affairs (VA) granted him a disability rating for his service-connected condition.

3.  The applicant provides, in support of his application, copies of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) with an effective date of 31 August 1965; two VA, Regional Office, New York, New York, letters, dated 12 March 1973 and 7 November 1980; and a VA Form 21-6754 (Increased Disability Compensation), undated.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code (USC), 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 inducted in the U.S. Army for a period of 24 months on
5 September 1963.  Upon completion of training, he was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  The applicant’s military personnel records contain a DA Form 20 (Enlisted Qualification Record).  Item 29 (Foreign Service) shows he served overseas in Germany from 22 January 1964 through 15 August 1965.

4.  A Standard Form (SF) 89 (Report of Medical History), dated 28 June 1965, completed by the applicant for the purpose of his separation medical examination, shows in Item 17 (Statement of Examinee’s Present Health in Own Words) that the applicant entered the statement, "Good Health."  In response to Item 34 (Have You Ever Had Any Illness or Injury Other Than Those Already Noted?) the applicant placed a checkmark in the "Yes" column and entered, "Note number 34!  During my voyage to Bremerhaven, Germany from New York City which lasted eight days, I had not slept, or eaten properly and was always sea sick because of an allergy of this nature which existed in my younger years of life.  Jan[uary] 1964."  Item 40 (Physician’s Summary and Elaboration of All Pertinent Data), in pertinent part, contains the notation, "Mild Seasickness 1964."  The SF 89 also shows both the applicant and examining physician placed their signatures on the document.

5.  An SF 88 (Report of Medical Examination), dated 28 June 1965, administered for the purpose of the applicant’s separation medical examination, shows in Item 74 (Summary of Defects and Diagnoses) the entry, "None."  This document also shows the examining physician found the applicant qualified for separation.

6.  The applicant’s DD Form 214 shows he was inducted and entered active duty on 5 September 1963, was honorably released from active duty on 31 August 1965 based on early release of overseas returnee prior to expiration of term of service, and transferred to the U.S. Army Reserve Control Group (Annual Training) to complete his remaining military service obligation.  At the time he had completed 1 year, 11 months, and 26 days of net active service and 1 year, 7 months, and 8 days of foreign service.

7.  In support of his application, the applicant provides, in pertinent part, a VA, Regional Office, New York, New York letter, dated 12 March 1973, that shows he was awarded VA benefits in the amount of $62.00 beginning 8 August 1972.  He also provides a VA, Regional Office, New York, New York letter, dated
7 November 1980 and an Increased Disability Compensation form that show the applicant’s VA benefits were amended based upon evidence that his service-connected condition had increased in severity, and the rating of his disability was increased from 50 percent to 100 percent.

8.  Army Regulation 635-205 (Discharge and Release - Convenience of the Government), in effect at the time, set forth the basic authority for the separation of enlisted personnel for the convenience of the government, which included the provision for early release of overseas returnees prior to expiration of term of service.

9.  Title 10, U.S. Code (USC), Chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability.

10.  Title 38, USC, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a VA disability rating does not establish error or injustice in the Army separation process.  As a matter of information, 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 fitness determination/disability rating based on the same impairment.  Furthermore, unlike the Army, the VA 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 VA may rate any service connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show he was medically retired based on permanent disability because he acquired a nervous condition during his military service, he was improperly separated from active duty, and the VA has granted him a disability rating for his service-connected condition.
2.  The applicant underwent a separation medical examination prior to his separation from active duty and the examining physician found the applicant qualified for separation.  Thus, there were no disqualifying mental or physical defects sufficient to warrant disposition of the applicant through medical channels at the time of his administrative separation.

3.  The Army rates only conditions determined to be physically unfitting that were incurred or aggravated during the period of military service.  Furthermore, it can rate a condition only to the extent that the condition limits the performance of duty.  The VA (and some other government agencies) on the other hand, provides compensation for disabilities which it determines were incurred in or aggravated by active military service and which impair the individual's industrial or social functioning.  Moreover, the law requires the VA must give the veteran the benefit of any reasonable doubt.  The fact that the VA (or any other government agency), in its discretion, awarded the applicant a disability rating, is a prerogative exercised within the policies of that agency.

4.  Records confirm the applicant’s honorable separation under the provisions of Army Regulation 635-205, based on early release of overseas returnee prior to expiration of term of service, was administratively correct and in compliance with applicable regulations in effect at the time.  In addition, records show the applicant was properly and equitably separated from active duty.  Therefore, considering all the facts of this case, the applicant’s separation from active duty was valid and appropriate. 

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.  Therefore, there is no basis for granting the applicant’s 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)                                         AR20090004653



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ABCMR Record of Proceedings (cont)                                         AR20090004653



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