BOARD DATE:	  1 May 2012

		DOCKET NUMBER:  AR20110019876 


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, correction of his military service records to show he was placed on the Retired List with a disability rating of 30 percent (%).

2.  The applicant states he was awarded a disability rating of 30%, which entitles him to be placed on the permanent Retired List.  However, he was not notified of this entitlement when he was medically discharged.  He adds that his disabilities have worsened since he was discharged.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and internet information about military disability separations and retirements.

4.  On 4 November 2011, the Army Board for Correction of Military Records (ABCMR) advised the applicant that the ABMCR can consider his issue; however, he had the option of applying to the Department of Defense (DoD) Physical Disability Board of Review (PDBR).  He was also advised that while he had the option of applying to either the ABCMR or the PDBR, the decision of either Board is final and if denied by one of the Boards, he may not apply to the other Board on the same issue.  However, the PDBR may only consider the unfitting conditions evaluated and ratings rendered by the original Physical Evaluation Board (PEB), while the ABCMR may consider the original PEB's findings concerning fitting and unfitting conditions and any other related issue of error or injustice.

5.  On 15 November 2011, the applicant elected to continue with his application for disability review by the ABCMR in lieu of the DoD PDBR.  He did not provide any additional documentary evidence.

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 17 May 1993.  Upon completion of training, he was awarded military occupational specialty 31U (Signal Support Systems Specialist).

3.  He had prior honorable active enlisted service from 25 October 1994 through 14 April 1999.

4.  The applicant enlisted in the Regular Army (RA) on 3 March 2000.

5.  A DA Form 2173 (Statement of Medical Examination and Duty Status) and the allied documents show the applicant injured his hand on 1 September 2002 while playing with (chasing) his son.

	a.  He slipped on the linoleum floor in his quarters and accidentally hit his hand against the wall while attempting to brace himself from falling on his son.

	b.  He was diagnosed with a "boxer fracture" (right hand).

	c.  On 25 October 2002, the line of duty investigation was reviewed and the applicant's injury was determined to be in the line of duty.

6.  The applicant's DA Form 199 (PEB Proceedings) is not available in his military personnel records.


7.  Orders 139-0226, issued by Headquarters, III Corps, Fort Hood, TX, dated
19 May 2003, discharged the applicant from the RA on 6 June 2003 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) with a disability rating of 10%.  He was credited with
8 years and 28 days of service for basic pay.

8.  The applicant's DD Form 214 shows he entered active duty on 3 March 2000 and was honorably discharged on 6 June 2003 under the provisions of Army Regulation 635-40, paragraph 4-24b(3), based on physical disability with severance pay ($29,184.00).

9.  In support of his request, the applicant provides a 2-page article titled "Military Disability (Medical) Separations and Retirements" from the website:  http://usmilitary.about.com.  It provides a brief overview of the Physical Disability Evaluation System (PDES) and the applicant highlighted the topic permanent disability retirement.  It shows that permanent disability retirement occurs if the member is found unfit, the disability is determined permanent and stable and rated at a minimum of 30%, or the member has 20 years of (qualifying) military service.

10.  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%.

11.  Title 38, U.S. Code, sections 1110 and 1131, permits the Department of Veteran Affairs (VA) to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA however, is not required by law to determine medical unfitness for further 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.  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 VA benefits based on an evaluation by that agency.

12.  Army Regulation 15-185 (ABCMR) 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 his military records should be corrected to show he was granted a disability rating of 30% and placed on the permanent Retired List was carefully considered.

2.  Records show the applicant sustained an injury (boxer fracture) to his right hand on 1 September 2002.

3.  The applicant's PEB proceedings are not available in his military personnel records and the applicant provided no additional documentary evidence relating to his medical condition(s).

4.  Orders discharged the applicant from the RA under the provisions of Army Regulation 635-40 with a disability rating of 10%.   Accordingly, he was honorably discharged on 6 June 2003 based on disability with severance pay.

5.  According to the applicant the VA, in its discretion, has awarded him a disability rating that would equate to disability retirement from the Army.  This is a prerogative exercised within the policies of that agency.  It does not, in itself, establish physical unfitness rating for Department of the Army purposes.

6.  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 condition(s) was/were improperly evaluated at the time his PEB was approved, there is no basis to increase the percentage of disability awarded at the time of his medical discharge.  The evidence the applicant provided is insufficient to overcome this presumption.

7.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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)                                         AR20110019876



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ABCMR Record of Proceedings (cont)                                         AR20110019876



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