IN THE CASE OF:	  

		BOARD DATE:	  21 August 2014

		DOCKET NUMBER:  AR20130022225 


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 he was retired by reason of physical disability.

2.  The applicant states it is his understanding that if the Department of Veterans Affairs (VA) grants a discharged Soldier 30 percent or more and an initial award, the Soldier can request that his discharge be changed to a medical retirement.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* VA Rating Decision, dated 9 August 1993 (first page)
* Army Board for Correction of Military Records letter, dated 27 July 1998
* Army Review Boards Agency letter, dated 31 May 2013
* VA Form 10-5345 (Request for and Authorization to Release Medical Records or Health Information), dated 3 December 2013

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's medical records are not available for review.  However, there are sufficient documents remaining to conduct a fair and impartial review of this case.

3.  The applicant enlisted in the Regular Army on 9 March 1977.  He completed training as a wheel vehicle repairman.

4.  The facts and circumstances surrounding the applicant's discharge are not available.  His DD Form 214 shows he was honorably discharged on 31 August 1992, under the provisions of Army Regulation 635-200, chapter 16-8, due to the Fiscal Year (FY) 1992 Enlisted Voluntary Early Transition Program.  He had completed 15 years, 5 months, and 27 days of net active service this period.

5.  A review of the available records does not show that the applicant was suffering from any unfitting medical condition at the time of his discharge that would have required processing him for separation through medical channels.

6.  The applicant provides a letter from the VA dated 9 August 1993 granting his claim for service-connected disability compensation.  He received a 40 percent combined service-connected disability rating for the following conditions:

* Status-post right tibia fracture with right knee crepitus – 10 percent
* Left knee osteoarthritis with crepitus – 10 percent
* Low back pain with underlying disc degeneration and L5 process stress fracture – 10 percent
* Residuals, 12/86 left ear infection with left ear hearing loss and tinnitus (ringing in ears) – 10 percent

7.  The applicant also provides a VA Form 10-5345 dated 3 December 2013, showing that he authorized release of his medical records to this Board.  His medical records have not been received.

8.  Army Regulation 635-200 (Enlisted Personnel Separations) provides the basic authority for the separation of enlisted personnel.  Paragraph 16-8 of the version of the regulation in effect at the time stated that when authorization limitations, strength restrictions, or budgetary constraints require the size of the enlisted force to be reduced, the Secretary of the Army, or his designee, would authorize voluntary or involuntary early separation under the authority of 10 U.S. Code 1169 or 1171.  The Commander, U.S. Total Army Personnel Command, would implement this program by issuing separation instructions pertaining to a specific class or category of Soldiers.  Early separation under this paragraph was for the convenience of the Government.

9.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active 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 affect the individual’s civilian employability.  Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings.  The VA may rate any service-connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.

10.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

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

2.  The fact that the VA awarded him a 40 percent combined service-connected disability does not show error on the part of the Army.  The VA awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual’s civilian employability.  There is no evidence in the available records showing that the applicant was suffering from any unfitting medical condition at the time of his discharge that would have required processing him for separation through medical channels.

3.  The available evidence shows that he was discharged due to the FY 1992 Enlisted Voluntary Early Transition Program.  He has provided insufficient evidence to show that the Narrative Reason for Separation shown on his DD Form 214 is incorrect as currently reflected.

4.  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

5.  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)                                         AR20130022225



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ABCMR Record of Proceedings (cont)                                         AR20130022225



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