IN THE CASE OF:
BOARD DATE: 12 February 2014
DOCKET NUMBER: AR20130015900
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 discharge be voided and that he be retired by reason of permanent disability.
2. The applicant states that the military is now accepting internal injuries or symptoms acquired during the time served on active duty. He goes on to state that after serving in Germany and Italy as a military policeman he began having breathing problems and was given a profile for running and strenuous assignments. He also states that he has been given 100% service-connected disability and is unemployed due to chronic lung damage.
3. The applicant provides copies of his service medical records.
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 initially enlisted in the Regular Army on 20 November 1974 and served until he was honorably discharged while in basic training on 23 January 1975. He had served 2 months and 4 days of active service.
3. He again enlisted in the Regular Army on 11 March 1988 for training as a military policeman. He completed his one-station unit training at Fort McClellan, Alabama and was transferred to Germany for his first assignment on 9 June 1988.
4. On 7 June 1990, he was transferred to Italy where he served until he was honorably discharged on 3 March 1992 under the Early Transition Program. He had served 3 years, 11 months, and 23 days of active service. His separation medical/physical examination conducted at the time of his separation indicates that he was fully qualified for separation.
5. A review of his official records failed to show evidence of the applicant being unable to perform his duties or of his being declared unfit for retention or separation. His NCOER for the period ending February 1992 shows he was capable of performing his duties.
6. 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.
7. Army Regulation 635-40 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.
8. 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. An award of a VA rating does not establish error or injustice on the part of the Army. 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 affects the individual's employability.
DISCUSSION AND CONCLUSIONS:
1. Based on the available evidence, it appears the applicant was properly discharged in accordance with the applicable laws and regulations with no indication of any violations of any of his rights.
2. The totality of the evidence, including the medical records most proximate to the applicants discharge, overwhelmingly support the conclusion that the applicant, upon his separation, met medical retention standards and did not have a condition warranting a Medical Evaluation Board/Physical Evaluation Board or entry into the Physical Disability Evaluation System. His NCOER for the period ending February 1992 shows he was capable of performing his duties.
3. There is no evidence to show he was not properly diagnosed at the time or that his discharge was not conducted in accordance with the applicable laws and regulations then in effect.
4. Accordingly, there appears to be no basis to grant the applicant's request.
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) AR20130015900
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ABCMR Record of Proceedings (cont) AR20130015900
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