IN THE CASE OF:	  

		BOARD DATE:	    2 October 2012

		DOCKET NUMBER:  AR20120004732 


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 promoted to the pay grade of E-6 while on active duty and that he was retired by reason of permanent disability with at least a 30% disability rating in that pay grade.

2.  The applicant states, in effect, that he should have been promoted to the pay grade of E-6 while on active duty; however, information was lost from his records and it took him over a year to retrieve orders for award of the Army Commendation Medal (ARCOM) which would have been worth 30 points and enough to meet the cutoff score at anytime.  He also states that his unit would not grandfather the award.  He continues by stating that he was not given all of the facts surrounding his disability discharge and believes that his disability rating should have been greater than 10%. 

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 31 July 1975.  He completed his one-station unit training as a unit supply specialist at Fort Jackson, South Carolina and he remained on active duty through a series of continuous reenlistments.  He was promoted to the pay grade of E-5 on 1 September 1979. 

3.  On 26 September 1991, a Physical Evaluation Board (PEB) convened at Fort Sam Houston, Texas and determined that the applicant was unfit for duty due to an old right Achilles tendon rupture with residual weakness (Veterans Affairs Schedule for Rating Disabilities (VASRD) code 5284).  The PEB recommended that he be given a 10% disability rating and separated with severance pay.  On 30 September 1991, the applicant concurred with the findings and recommendations and waived a formal hearing of his case. 

4.  On 22 November 1991, he was honorably discharged under the provisions of Army Regulation 635-40, paragraph 4-24B(3), due to physical disability with severance pay.  He had served 16 years, 3 months, and 22 days of active service and he was paid $34,768.80 in disability severance pay.

5.  A review of the applicant's records shows he was on the E-6 promotion standing list with 782 points as of May 1990.  His promotion packet is no longer contained in his Military Personnel Records Jacket (MPRJ).  There is no evidence in the available records to show the applicant met the cut-off score for promotion to the pay grade of E-6.

6.  Army Regulation 600-200 (Enlisted Personnel Management System) served as the authority for the promotion of personnel to the pay grade of E-6.  It provided, in pertinent part, that individuals on an approved promotion standing list who met the Department of the Army announced cut-off score could be promoted to the pay grade of E-6. 

7.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has an impairment rated at least 30-percent disabling.

8.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  That regulation also provides for Soldiers to appeal the decisions of the various boards and agencies involved in determining a Soldier's disability ratings.

9.  The VASRD is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The degree of severity is expressed as a percentage rating which determines the amount of monthly compensation.  VASRD Code 5284 covers foot injuries and provides for a 10% rating when the injury is moderate; 20% when moderately severe; and 30% when severe.

10.  Title 38, U.S. Code, sections 310 and 331, 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.  There is a difference between the VA and the Army disability systems.  The Army's determination of a Soldier's physical fitness or unfitness is a factual finding based upon the individual's ability to perform the duties of his or her grade, rank, or rating.  If the Soldier is found to be physically unfit, a disability rating is awarded by the Army and is permanent in nature.  The Army system requires that the Soldier only be rated as the condition(s) exist(s) at the time of the PEB hearing.  The VA may find a Soldier unfit by reason of service-connected disability and may even initially assign a higher rating.  The VA's ratings are based upon an individual's ability to gain employment as a civilian and may fluctuate within a period of time depending on the changes in the disability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he should have been promoted to the pay grade of E-6 while on active duty has been noted and appears to lack merit.

2.  The applicant has not provided and the official records do not contain any evidence to show that he met the Department of the Army announced cut-off 
score for his military occupational specialty while he was on active duty with or without the ARCOM orders.  Therefore, in the absence of such evidence, there appears to be no basis to grant his request to be promoted, especially 19 years after the fact.

3.  Based on the fact the applicant’s unfitting condition was an old right Achilles tendon rupture with residual weakness, it appears his disability was properly rated in accordance with the VASRD by competent medical authorities and he was properly separated with disability severance pay.

4.  Department of the Army disability decisions are based upon observations and determinations existing at the time of the PEB hearing and are based upon conditions that render the Soldier unfit to perform his duties.  The Department of the Army ratings become effective the date that permanency of the diagnosis is established.

5.  The applicant has not provided sufficient evidence to show that the evaluation and the rating rendered by the PEB were incorrect or that he should have received a higher disability rating at the time of his separation.  Accordingly, there is no basis to grant his request to void his discharge and retire him by reason of permanent disability. 

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)                                         AR20120004732



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ABCMR Record of Proceedings (cont)                                         AR20120004732



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