BOARD DATE:	  4 May 2010

		DOCKET NUMBER:  AR20090019918 


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, increase of his disability rating to 30 percent or more (i.e., a medical retirement).

2.  The applicant states the Department of Veterans Affairs (DVA) rated him 
30 percent for the same conditions he was discharged for.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DVA letter, dated 15 July 1992

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 the Regular Army on 11 February 1982 and trained as a combat engineer and drill sergeant.

3.  On 13 May 1991, a Medical Evaluation Board (MEB) diagnosed the applicant with status post multiple fractures, left wrist, status post ligament disruption carpal metacarpal joint left thumb, status post surgical reconstruction carpal metacarpal ligaments left thumb, status post excision of dorsal carpal boss, following wrist fractures; and bilateral, permanent sensori neural hearing loss, mile - severe right ear, severe left ear.  The MEB recommended referral to a Physical Evaluation Board (PEB).  On 13 May 1991, the applicant agreed with the MEB's findings and recommendation.

4.  On 17 May 1991, an informal PEB found the applicant physically unfit due to status post multiple fractures, left wrist with residual pain and limitation of motion.  MEB diagnosis 2 was found to be not unfitting, not rated.  The PEB recommended a combined rating of 10 percent and that the applicant be separated with severance pay.  On 20 May 1991, the applicant did not concur with the PEB’s findings and recommendations and demanded a formal hearing.

5.  On 24 June 1991, a formal PEB found the applicant physically unfit due to status post multiple fractures, left wrist with residual pain and limitation of motion.  
MEB diagnosis 2 was found to be not unfitting, not rated.  The formal PEB recommended a combined rating of 10 percent and that the applicant be separated with severance pay.  On 24 June 1991, the applicant concurred with the formal PEB’s findings and recommendations.  

6.  On 24 June 1991, the U.S. Army Physical Disability Agency approved the formal PEB’s findings and recommendations.

7.  On 26 September 1991, the applicant was honorably discharged by reason of physical disability with severance pay.  He had completed a total of 9 years,
7 months, and 16 days of creditable active service.

8.  In support of his claim, the applicant provided a DVA letter, dated 15 July 1992, which shows he was granted service connected disability compensation for residuals of fracture, left wrist (10 percent); residuals of ligament strain, right knee (10 percent); and bilateral tinnitus (10 percent) with a combined rating of 
30 percent.   

9.  Title 10, U. S. Code, section 1201, provides for the physical disability retirement of a member who has an impairment rated at least 30 percent disabling.
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.  The applicant contends the DVA rated him 30 percent for the same conditions he was discharged for.  However, the DVA letter provided by the applicant shows he was he was granted service connected disability compensation for three conditions (left wrist, right knee, and tinnitus).  The DVA granted him 10 percent for residuals of fracture (left wrist), the same rating he received from the formal PEB.   

2.  The rating action by the DVA does not necessarily demonstrate an error or injustice on the part of the Army.  The DVA, operating under its own policies and regulations, assigns disability ratings as it sees fit.  

3.  Evidence of record shows a formal PEB found him physically unfit due to status post multiple fractures, left wrist with residual pain and limitation of motion.  He concurred with the formal PEB's findings on 24 June 1991.    

4.  There is insufficient evidence to show the applicant’s disabilities were improperly rated by the formal PEB or that his separation with severance pay was not in compliance with law and regulation.  Therefore, there is insufficient evidence on which to increase his disability rating. 

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)                                         AR20090014236



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ABCMR Record of Proceedings (cont)                                         AR20090019918



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