MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:.

	BOARD DATE:            12 May 1999       
	DOCKET NUMBER:   AR1999015573

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Loren G. Harrell		Director	
	Ms. Deborah L. Brantley		Analyst	

  The following members, a quorum, were present:

	Mr. George D. Paxson		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. James E. Anderholm		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether the application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

The Board considered the following evidence:

	Exhibit A - Application for correction of military records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  In effect, disability retirement or separation.  He states, in effect, that he received a Special Separation Bonus (SSB) which was subsequently recouped by the VA when he began drawing VA disability.  He notes that he has been trying for several years to have the taxes that he paid on the SSB recomputed in view of his service connected disability.

PURPOSE:  To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.

EVIDENCE OF RECORD:  The applicant's military records show:

He entered active duty on 10 October 1979 and served continuously until 
29 September 1992 when he was voluntarily separated at his request under the FY92 Enlisted Early Transition Program.

The applicant’s performance evaluation reports, completed between 1984 and 1992, indicate the applicant was a successful soldier who, with one exception, consistently passed his annual physical fitness test.  In September 1986 he failed his physical fitness test but his rater noted that his “physical ability” was such that he could “perform those missions for his PMOS.”

During the applicant’s active duty service he was awarded several decorations, including a Combat Infantryman Badge as a result of his combat service during the Persian Gulf War.  He was promoted to pay E-5 in September 1983.

On 29 September 1992 the applicant was voluntarily released from active duty and awarded a lump sum SSB payment of $34,470.45, under the Army’s FY92 Enlisted Early Transition Program.

Subsequent to his separation he continued to serve successfully in the Army Reserve and consistently passed his annual physical fitness tests.  In 1993 he graduated from drill sergeant training.

At some point after his separation from active duty he was awarded a combined service connected disability rating of 40 percent from the VA.  Under laws established for the payment of disability benefits the applicant’s monthly VA disability pay was withheld until his SSB payment was recouped.

Once it is determined that a veteran received lump-sum readjustment pay, disability severance pay, separation pay under 10 U.S.C. 1174, Special Separation Benefit (SSB) under 10 U.S.C. 1174a, or Voluntary Separation Incentive (VSI) under 10 U.S.C. 1175, 38 CFR 3.700 prohibits duplication of benefit payments. 

If a veteran elected to receive SSB and subsequently establishes entitlement to receive VA compensation for the same period of service, the VA compensation must be offset to prevent concurrent receipt of benefits.  PL 104-201, which was effective October 1, 1996, limited recoupment of the Special Separation Benefit (SSB) under 10 U.S.C. 1174a by the VA to the amount of separation pay received by the veteran after withholding for Federal income tax.  New legislation, Veterans Benefits Act of 1998, effective 1 October 1998, amends that law to include SSB payments made during the period beginning December 5, 1991 and ending September 30, 1996.  Any requests for adjustment of an SSB payment being recouped must be supported with adequate documentation which shows the amount that was withheld for Federal income taxes and should be directed to the applicant’s servicing VA office.

Army Regulation 40-501, 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.

Army Regulation 40-501, at paragraph 3-3a, provided, in pertinent part, that performance of duty despite an impairment would be considered presumptive evidence of physical fitness. 

Title 38, United States 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.  Furthermore, 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.  There is no evidence, nor has the applicant provided any, that he had any unfitting medical condition at the time of his voluntary release from active duty, which warranted processing through the Army’s physical disability system.

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.  Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 29 September 1992, the date the applicant was released from active duty and authenticated his separation document.  The time for the applicant to file a request for correction of any error or injustice expired on 29 September 1995.

The application is dated 13 February 1997 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.

DETERMINATION:  The subject application was not submitted within the time required.  The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

___gdp__  __aao___  ___jea__  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1999015573	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990512	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(DENY,)	
REVIEW AUTHORITY		
ISSUES         1. 108.00		
2. 142.00		
3.		
4.		
5.		
6.