IN THE CASE OF:	  

		BOARD DATE:  12 July 2012

		DOCKET NUMBER:  AR20120000725 


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 his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show that he was permanently retired by reason of a service-connected disability.

2.  The applicant states his DD Form 214 should show he is permanently and totally disabled due to a service-connected disability.

3.  The applicant provides:

* DD Form 214, dated 14 October 1971
* Orders 093-513, dated 3 April 1987
* DD Form 214, dated 27 April 1987
* One page of a Department of Veterans Affairs (VA) Rating Decision, dated 12 March 2007
* VA Regional Office letter, dated 17 April 2001

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 (RA) on 16 October 1969.  He completed training as a light weapons infantryman.  After completing 1 year, 11 months, and 29 days of total active service this period, he was honorably released from active duty on 14 October 1971, as an overseas returnee and he was transferred to the U.S. Army Reserve Control Group (Annual Training).

3.  The applicant again enlisted in the RA on 4 March 1974.  He was honorably discharged on 23 July 1975 for the purpose of immediate reenlistment.  He reenlisted in the RA on 24 July 1975.

4.  After completing 11 years, 9 months, and 4 days of net active service this period, the applicant was honorably discharged on 27 April 1987, under the provisions of Army Regulation 635-200, chapter 4, at the expiration of his term of service.

5.  A review of the applicant’s official military record does not show that he was suffering from any unfitting conditions while he was in the Army that would have required him to be processed for discharge through medical channels.

6.  The applicant submits a VA Regional Office letter, dated 17 April 2001, which states that VA records show he has been adjudicated as being permanently and totally disabled and entitled to receive service-connected benefits rated at 100 percent disabling.

7.  The applicant submits one page of a VA Rating Decision, Atlanta Regional Office, dated 12 March 2007, which states “Evaluation of cystic acne with psecudofolliculitis barbae (formerly under DC 7899-7806), which is currently 30 percent disabling, is continued.”  It states “Evaluation of scars, acne, which is currently 30 percent disabling, is continued.

8.  Army Regulation 40-501(Standards of Medical Fitness), paragraph 3-3b(1), provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement or Separation), paragraph 2-2b, provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

10.  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, 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.

11.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  It states the DD Form 214 is a synopsis of the Soldier’s most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions have been noted.  His supporting evidence has been considered.  

2.  The letter he submitted from the VA dated 17 April 2001 states that he has been adjudicated as being permanently and totally disabled and entitled to receive service-connected benefits rated at 100 percent disabling.  There is no evidence in his record, nor has he submitted any evidence, showing he was suffering from any medically unfitting condition while he was in the RA that would have warranted processing him for discharge through medical channels.

3.  The fact that the VA, in its discretion, has awarded the applicant a disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish physical unfitness for Department of the Army purposes.

4.  In view of the foregoing, the applicant’s request should be denied.


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)                                         AR20120000725





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ABCMR Record of Proceedings (cont)                                         AR20120000725



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