BOARD DATE:	  22 March 2012

		DOCKET NUMBER:  AR20110017681 


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 her military service records to show she was discharged with a higher percentage of disability.

2.  The applicant states that several years ago she applied to the Army Board for Correction of Military Records (ABCMR) regarding the percentage of disability assigned at the time of separation.  Her application was returned because her military service records were not available.  She adds that, after numerous administrative errors in the processing of her case by the Department of Veterans Affairs final action has been taken on her claim.

3.  The applicant provides a copy of her DD Form 214 (Certificate of Release or Discharge from Active Duty) and a letter from the Social Security Administration.

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 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 U.S. Army Reserve (USAR) on 30 November 1981.  She was ordered to initial active duty for training on 14 January 1982, awarded military occupational specialty 71L (Administrative Specialist) on
10 June 1982, and honorably released from active duty.

3.  The applicant was ordered to active duty training on 6 October 1987 for the purpose of medical evaluation.

4.  The applicant's DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 15 April 1988, is not available in her military personnel records.

5.  A memorandum from the U.S. Army PEB, Walter Reed Army Medical Center, Washington, DC, dated 17 June 1988, subject:  PEB, shows the Alternate President of the Washington PEB notified the applicant that it had reviewed a medical addendum, dated 4 June 1988, and determined it did not provide sufficient substantive medical evidence to warrant a change.  Therefore, the board affirmed the decision of the informal PEB that found the applicant unfit with a disability rating of 10%.  

6.  A memorandum from the U.S. Army PEB, Walter Reed Army Medical Center, Washington, DC, dated 24 June 1988, subject:  Administrative Correction to PEB Proceeding, shows the board recorder corrected item 8a (VA Code) to read "8499-8407" (Neuralgia - Neuralgia of Seventh Cranial Nerve) (acute pain radiating along the course of one or more nerves usually without demonstrable changes in the nerve structure).

7.  A DA Form 751 (Telephone or Verbal Conversation Record), dated 24 June 1988, shows the applicant called Captain P----, Legal Counsel, and informed him that she did not agree with the informal PEB findings, dated 15 April 1988; but she would not submit additional information and that she withdrew her earlier request for a formal hearing.

8.  U.S. Army Military Personnel Center, Alexandria, VA, Orders D155-35, dated 12 August 1988, discharged the applicant from the USAR on 2 September 1988 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) with a disability rating of 10%.  She was credited with 10 months and 29 days of active service and 6 years, 9 months, and 4 days of service for basic pay.

9.  The applicant's DD Form 214 shows she entered active duty on 6 October 1987 and was honorably discharged on 2 September 1988 under the provisions of Army Regulation 635-40 based on a physical disability (with severance pay).

10.  In support of her request, the applicant provides the following documents:

	a.  Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals, Decision, dated 26 April 1990, that shows the applicant requested reconsideration of her claim for disability insurance benefits that she filed on 26 January 1988.

	b.  Upon reconsideration, the medical evidence established that the applicant has severe Frey's Syndrome (a syndrome that includes sweating while eating and facial flushing), which is caused by injury to a nerve typically after surgical trauma to the parotid gland (the largest of the salivary glands).

	c.  The Administrative Law Judge determined that the applicant was entitled to a period of disability commencing 25 September 1987 and to disability insurance benefits.

11.  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 rating at less than 30 percent.

12.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  Paragraph 2-9 contains guidance on the burden of proof.  It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that her military records should be corrected to show she was discharged with a higher percentage of disability was carefully considered.

2.  The evidence of record shows the applicant's informal PEB was conducted on 15 April 1988.  The PEB Proceedings were corrected on 24 June 1988, the applicant withdrew her request for a formal hearing, and she accepted the approved PEB proceedings.  Accordingly, she was discharged based on a disability rating of 10% with severance pay.

3.  There is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial credible evidence to rebut the presumption.  Since there is no available evidence to show the applicant's medical conditions were improperly evaluated at the time her PEB was approved, there is no basis to increase the percentage of disability awarded at the time of her medical discharge.  The evidence the applicant provided is in sufficient to overcome this presumption.

4.  Therefore, in view of the foregoing, there is no basis for granting the requested relief.

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)                                         AR20110017681



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ABCMR Record of Proceedings (cont)                                         AR20110017681



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