IN THE CASE OF:	  

		BOARD DATE: 	       10 November 2009

		DOCKET NUMBER:  AR20090011837 


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 DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show he has a 100-percent service-connected disability.

2.  The applicant states that he received a Department of Veterans Affairs (DVA) rating decision, dated 27 April 2009, that awarded him a 100-percent service-connected disability. 

3.  The applicant provides a copy of his DVA rating decision, dated 27 April 2009, 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.  The applicant's records show he enlisted in the Regular Army for a period of 3 years on 14 February 1963.  He completed basic combat and advanced individual training and was awarded military occupational specialty 97B (Military Intelligence Specialist).  The highest rank he attained during this period of military service was sergeant.  

3.  The applicant’s records also show he was honorably released from active duty on 11 February 1966 under the provisions of Army Regulation 635-200 (Personnel Separations) by reason of expiration of his term of service (ETS) and transferred to the U.S. Army Reserve Control Group (Reinforcement) for completion of his Reserve obligation.  He completed 2 years, 11 months, and 28 days of creditable active service.  

4.  There is no indication in the applicant’s records that he suffered an injury or an illness during his military service that limited his ability to perform in his specialty and/or grade or that would have warranted his entry into the Physical Disability Evaluation System (PDES).  

5.  There is no indication in the applicant's records that he completed any other period of active duty subsequent to his ETS. 

6.  The applicant submitted a copy of his DVA rating decision, dated 27 April 2009, which shows he was awarded service-connected disability for lateral sclerosis and left and right neurological impairments.

7.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The regulation directs, in pertinent part, that the purpose of the separation document is to provide the individual with documentary evidence of military service.  It is important that information entered on this form should be complete and accurate.  Chapter 2 of Army Regulation 635-5 contains guidance on the preparation of the DD Form 214.  Chapter 2 states, in pertinent part, that item 12 shows the record of service.  Extreme care is used when completing this item since post-service benefits, final pay, retirement credit, and so forth are based on this information. Item 32 (Remarks) is used for Headquarters, Department of the Army mandatory requirements, when a separate block is not available, and/or as a continuation entry.

8.  Title 38, U.S. 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 the separation document.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The DVA does not have authority or responsibility for determining physical fitness for military service.  The DVA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  As a result, these two Government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 should be corrected to show he was awarded a 100-percent service-connected disability.

2.  The evidence of record shows the applicant enlisted on 14 February 1963 and was honorably separated on 11 February 1966 by reason of ETS.  His DD Form 214 captures his period of active service and the reason for his separation.  There is neither an error nor an injustice.  

3.  The DD Form 214 is a summary of a Soldier’s most recent period of continuous active duty.  It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge.  There is no provision in the applicable regulation to list a service-connected disability rating by the DVA on the DD Form 214.

4.  An award of a rating by another agency does not establish error in the applicant’s separation document.  Operating under different laws and their own policies, the DVA does not have the authority or the responsibility for determining medical unfitness for military service or the reason for separating a Soldier.  The DVA may award ratings because of a medical condition related to service (service-connected) and affects the individual's civilian employability.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier’s separation and can only be accomplished through the PDES.  There is no evidence in the applicant’s case that he suffered from an injury or illness that would have warranted his entry into the PDES.  

5.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Therefore, there is insufficient evidence to grant the applicant relief in this case.

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)                                         AR20090011837



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ABCMR Record of Proceedings (cont)                                         AR20090011837



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