IN THE CASE OF:	  

		BOARD DATE:	  14 September 2013

		DOCKET NUMBER:  AR20120022622 


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 records to show a physical disability rating of 60 percent.

2.  The applicant states he believes his records to be in error and unjust because he did not receive a "permanent discharge or retirement."  The applicant states the Army board rated him at 60 percent on the day of his discharge.

3.  The applicant provides:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 13 September 1957
* DA Form 199 (Proceedings of Physical Evaluation Board (PEB)), dated
12 August 1957
* Special Orders Number 161, issued by Headquarters, U.S. Army Hospital, Fort Benning, GA, dated 12 August 1957,
* Department of Veterans Affairs (VA) Rating Decision, dated 11 October 2011

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.  With prior active service, the applicant enlisted in the Regular Army on 
9 December 1950 for a period of 6 years.

3.  On 12 August 1957, an informal PEB found the applicant unfit based on asthma, bronchial, without emphysema, attacks infrequent with moderate dyspnea on exertion between attacks.  It was determined that his physical impairments made him medically unfit to perform the duties required of his rank and grade.  The PEB rated the applicant's condition at 10 percent disabling and recommended separation with severance pay.

4.  On 13 September 1957, the applicant was honorably discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 5c(1) by reason of physical disability with entitlement to severance pay.  He completed 6 years, 9 months, and 5 days of net active service this period for 9 years and 11 months of total active service.  Item 32 (Remarks) of his DD Form 214 for this period of service shows the entry "Disability 10 percent."  The applicant signed this DD Form 214 in Item 34 (Signature of Person being Transferred/Discharged).

5.  There is no evidence of record and the applicant did not provide any evidence that shows he was entitled to a 60 percent disability rating from the Army.

6.  On 6 April 2004, the Department of Veterans Affairs (VA) rated the applicant with service-connected disabilities as follows:

* 60 percent - bronchial asthma
* 20 percent - bilateral hearing condition
* 10 percent - synovitis, left knee
* 10 percent - epidermatophytosis of the feet cural area
* 10 percent - internal derangement, right knee, asymptomatic
* 10 percent - tinnitus
* 0 percent - inactive pulmonary tuberculosis

7.  Army Regulation 635-40 states that there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying.  Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.

8.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rated at less than 30 percent.

9.  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 may be rated by the Army at one level but rated by the VA at a different level.  Further, the VA may increase a rating over time.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request for correction of his records to increase his physical disability rating to 60 percent was carefully considered; however, there is insufficient evidence to support his request.

2.  The evidence of record shows that on 12 August 1957 an informal PEB convened and found the applicant unfit for duty and recommended a 10 percent disability rating based on asthma, bronchial, without emphysema, attacks infrequent with moderate dyspnea on exertion between attacks.  The PEB recommended the applicant be separated from the service with disability severance pay at 10 percent.

3.  There is no evidence of record and he has not provided evidence that shows the Army rated him with 60 percent disability upon his discharge.  Additionally, he signed his DD Form 214 that shows he acknowledged the type of separation he was issued.

4.  The fact that he is receiving disability compensation from the VA for other medical conditions is not evidence of any error or injustice on the part of the Army.  The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit.  A rating action by that agency does not compel the Army to modify its reason or authority for separation.

5.  In view of the above, there is no 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)                                         AR20120022622



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ABCMR Record of Proceedings (cont)                                         AR20120022622



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