IN THE CASE OF:	  

		BOARD DATE:	  5 April 2012

		DOCKET NUMBER:  AR20110018819 


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, that his records be corrected to show that he was retired by reason of permanent disability.  He also requests back pay and allowances as well as proper treatment.

2.  The applicant states, in effect, that he was deemed unfit for duty due to an injury he received while on active duty; however, he was not given a medical discharge.  He does not believe he was properly rated at the time.  He goes on to state that his disability has become more severe and he believes that he should have received a disability rating of at least 30%.  He continues by stating that he is currently rated 50% disabled.  

3.  The applicant provides no additional documents with his application.

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 3 January 1977 for a period of 3 years, training as a bridge crewman and assignment to Fort Polk, Louisiana.  He completed one-station unit training at Fort Leonard Wood, Missouri and was transferred to Fort Polk, Louisiana.

3.  He remained on active duty through a series of continuous reenlistments and was promoted to the pay grade of E-6 on 1 February 1983 while serving as a drill sergeant at Fort Leonard Wood.  

4.  On 28 May 1985, he was honorably discharged due to the expiration of his term of service.  He had served 8 years, 4 months, and 26 days of active service.

5.  The applicant’s medical records are not present in the available records.  However, his Noncommissioned Officer Evaluation Reports (NCOERs) as a drill sergeant shows no physical profiles and indicate that he received maximum ratings.  

6.  Army Regulation 635-40, Physical Evaluation for Retention, Retirement, or Separation, provides that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member may reasonably be expected to perform because of his or her office, rank, grade or rating.  This regulation also provides, in pertinent part, that when a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement, creates a presumption that the Soldier is fit.

7.  Title 38, U.S. Code, 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 rating does not establish error or injustice in whether or not an Army rating is given, or in an Army rating that is given.  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 different positions.  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’s contention that his discharge ending on 28 May 1985 should be changed to a retirement by reason of physical disability due to at least a 
30 percent permanent physical disability has been noted and appears to lack merit. 

2.  The applicant’s records contain no evidence that he was deemed physically unfit to perform the duties of his office, rank, grade or rating while on active duty.  
His NCOERs indicate he was fully fit at the time of his separation.

3.  While the applicant may be experiencing some difficulties now, 25+ years after his discharge, that in itself does not establish that he was physically unfit for separation in 1985 or that he should have been processed for separation through the Physical Disability Evaluation System.

4.  The fact that the VA may have awarded the applicant a service-connected disability rating was noted.  However, as previously mentioned, an award of a VA rating does not establish error or injustice in whether or not an Army rating is given, or in an Army rating that is given.  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 different positions.  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. 

5.  The applicant has failed to show through the evidence submitted with his application and the evidence of record that he was unfit for retention at the time of discharge; therefore, there appears to be no basis to grant his request to change his reason for discharge, grant him back pay and allowances, or medical treatment.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x___  ____x___  ____x___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States.  The applicant and all Americans should be justifiably proud of his service in arms.



      _______ _   _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)                                         AR20110018819



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ABCMR Record of Proceedings (cont)                                         AR20110018819



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