IN THE CASE OF:
BOARD DATE: 18 January 2011
DOCKET NUMBER: AR20100012779
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 that his DD Form 214 (Certificate of Releases or Discharge from Active Duty) be corrected to show he is in receipt of a 30-percent disability rating.
2. The applicant states he was discharged from the Army with a 0-percent disability rating. He subsequently went to the Department of Veterans Affairs (VA) and was awarded a 30-percent disability rating. For employment reasons, he needs to have his records corrected to show he is 30-percent disabled.
3. The applicant provides no supporting documentation.
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 served in the Regular Army from 8 April 2004 through 23 January 2006.
3. The record shows he sustained an injury to his back and was found unfit for retention by a physical evaluation board. He was granted a 0-percent disability rating at that time.
4. His DD Form 214 shows he was discharged with severance pay. No disability percentage is shown on the DD Form 214.
5. Title 10, U.S. 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 a disability incurred while entitled to basic pay.
6. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rated at less than 30 percent.
7. Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA, 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant states he was discharged from the Army with a 0-percent disability rating. He subsequently went to the VA and was awarded a 30-percent disability rating. For employment reasons, he needs to have his records corrected to show he is 30-percent disabled.
2. The applicant was discharged with severance pay on 23 January 2006. At this time the Army evaluated his condition at 0-percent disabling.
3. The DD Form 214 is a static document reflecting facts as they were as of the date of discharge.
4. The applicant has not provided and the record does not contain any evidence of if, when, or for what condition or conditions he may have been awarded a
30-percent disability rating under the VA's regulations.
5. Further, any rating action by the VA does not necessarily demonstrate any error or injustice in the Army rating. The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit. The VA may adjust a former service member's rating as his or her condition worsens or improves. Any rating action by the VA does not compel the Army to modify its rating.
6. The specific percentage of a physical disability is not recorded on the DD Form 214. The only factor on a DD Form 214 that relates to a disability percentage is whether a Soldier is discharged with severance pay (for a disability less than 30 percent) or medically retired (for a disability 30 percent or greater). Therefore, this is not a valid request and no relief is warranted.
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 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) AR20100012779
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ABCMR Record of Proceedings (cont) AR20100012779
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