IN THE CASE OF:	  

		BOARD DATE:	  28 April 2015

		DOCKET NUMBER:  AR20140014344


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 correction of his records to show he was retired due to physical disability.

2.  The applicant states he should have been medically retired because of medical problems.  He did not start having medical problems until after Operation Desert Storm.  He wanted to be a career Soldier but was told he had to separate in order to get his disability benefits.  He could have retired if he had stayed in the Army.

3.  The applicant provides copies of a:

* Department of Veterans Affairs (VA) Rating Decision , dated 19 June 1997
* Office of the Secretary of Defense letter, dated 24 July 1997
* VA Letter, dated 4 December 1997
* VA letter, dated 23 February 2015

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 15 June 1989.  He held military occupational specialty 27E (TOW-Dragon Repairer).

3.  His DA Form 2-1 (Personnel Qualification Record Part II) shows he served in Saudi Arabia from 7 October 1990 through 22 April 1991.

4.  He was honorably released from active duty as a specialist/E-4 on 1 March 1995 due to completion of required service.  He had completed 5 years, 8 months, and 17 days of active service.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he served in Southwest Asia from 
7 October 1990 to 22 April 1991.

5.  The applicant's service medical records are not available for review.

6.  In support of his request, the applicant provides copies of:

	a.  A 19 June 1997 VA Rating Decision showing he was granted 100% service-connected disability for seizures.  The decision further states, "In July 1995, the veteran reported having four seizures in the past three months.  In October 1995 he complained of having dizziness every morning for an hour or so."

	b.  A 24 July 1997, Office of the Secretary of Defense letter informing the applicant that his unit was near Khamisiyah, Iraq, in early March 1991.  The purpose of the letter was to update him on the Department of Defense (DoD) investigation of the U.S. demolitions of Iraqi weapons at Khamisiyah and what that meant to him.  "When rockets were destroyed in the pit area at Khamisiyah on March 10, 1991, the nerve agents sarin and cyclosarin may have been released into the air.  If you were with your unit at this time, you may have been in an area where exposure to a very low level of nerve agents was possible.  However, our analysis shows that the exposure levels would have been too low to activate chemical alarms or to cause any symptoms at the time."  The letter further states, "If you have health concerns which might be related to your Gulf War service, you are encouraged to enroll in the DoD Comprehensive Clinical Evaluation Program by calling 1-800-796-9699, or the Veterans Affairs Persian Gulf Registry, 1-800-749-8387." 

	c.  A 4 December 1997 VA letter showing he had been rated permanently and totally disabled under the VA rating criteria.

	d.  A 23 February 2015 VA letter showing he had been rated 100% permanent and totally disabled effective 31 January 1997. 

7.  Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank, or rating.

8.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 3-2b, provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected to show he was retired due to physical disability.  He did not start having medical problems until after Operation Desert Storm.

2.  There is no available evidence to show that, prior to his separation due to the completion of his required service, the applicant had any medical issues that impacted his ability to perform his duties.

3.  The VA service-connected disability compensation is strictly a VA benefit paid to a veteran because of injuries or diseases that occurred while serving on active duty or were made worse by active military service.  While the Army only rates those medical conditions that result in the Soldier being determined unfit for continued military service, the VA generally rates a Soldier for all conditions incurred in or aggravated by military service.  The Army and the VA disability evaluation systems are independent of one another.  Only those conditions that render a member unfit for continued military duty will be rated by a Physical Evaluation Board.  However, the VA can rate all service-connected conditions.

4.  In view of the above, 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 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)                                         AR20100011500



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ABCMR Record of Proceedings (cont)                                         AR20140014344



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