IN THE CASE OF:  	  

		BOARD DATE:  24 March 2015	  

		DOCKET NUMBER:  AR20140012675 


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 the reason for his discharge be changed to show he was discharged or retired by reason of permanent disability. 

2.  The applicant states, in effect, that he did not leave the service in good health and should have been discharged or retired by reason of permanent disability.  He also states that he has been awarded 100% service-connected disability by the Department of Veterans Affairs (VA).

3.  The applicant provides two statements explaining his application and copies of his military and VA 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 was inducted on 1 August 1966.  He completed his basic training at Fort Benning, Georgia and his advanced individual training as an infantryman at Fort Polk, Louisiana before being transferred to Fort McNair, Washington D.C. for assignment to Company A, 1st Battalion 3rd Infantry Regiment (Old Guard) for his first and only assignment.

3.  He was advanced to the pay grade of E-4 on 19 December 1967.  On 7 June 1968, he underwent a medical/physical examination (separation physical) and he indicated in his own handwriting that his health was good.  He noted that he had a skin infection and a well healed gunshot wound.  After being examined by a physician, he was deemed fit for separation and or retention. 

4.  On 31 July 1968, he was honorably released from active duty (REFRAD) due to the expiration of his term of service (ETS).  He had served 2 years of active service and was issued a reenlistment code of RE-1, indicating he was immediately eligible for reenlistment.

5.  A review of his official records failed to show any indication that the applicant was unable to perform any of his duties.  Additionally, there is no indication that he had any physical profile limitations.

6.  Army Regulation 635-40, paragraph 3-2b, provides 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 who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.

7.  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.

8.  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 Physical Evaluation Board (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 discharge was administratively correct and in conformance with applicable regulations with no indication of any violations of the applicant's rights.  Accordingly, the type of discharge directed and the reason for his discharge were appropriate under the circumstances.

2.  The applicant failed to show through the evidence submitted and the evidence of record that he was improperly diagnosed, by competent military medical personnel, as having a condition that was not a disability.  The mere presence of impairment does not, of itself, justify a finding of physical unfitness and/or medical retirement from the Army.  He was not medically separated at the time  because he had no medically unfitting conditions.  Accordingly, he was separated because of his ETS. 

3.  The fact that the VA, in its discretion, has awarded the applicant a disability rating 45 years later is a prerogative exercised within the policies of that agency.  It does not, in itself, establish any entitlement to additional disability compensation or medical retirement from the Army.

4.  Accordingly, he was properly discharged in accordance with the applicable laws and regulations with no indication of any violations of his rights.

5.  Therefore, in the absence of sufficient evidence to show the applicant was not properly diagnosed when he was evaluated and discharged in 1968, there appears to be no basis to grant his requests.



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)                                         AR20140012675



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ABCMR Record of Proceedings (cont)                                         AR20140012675



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