MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:           25 August 1999     
	DOCKET NUMBER:   AR1999018042

	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. Luther L. Santiful		Chairperson	
	Mr. Lester Echols		Member	
	Mr. Allen L. Raub		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.  He also notes that his rank at the time of his separation was wrong.  The applicant makes no statements, nor submits any evidence in support of his request but alludes to the fact that he was “discharged without proper legal counsel.”  He also refers to “evidence” located in files maintained by the Veterans Administration in Atlanta, Georgia but makes no mention of what that evidence might be.

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 26 October 1978 after serving more than 3 years in the Army Reserve.  He served an initial tour of duty as tactical wire operator in Germany where he was promoted to pay grade E-4 in November 1979.  Upon his return to the United States in June 1980 he was assigned as a military policeman at Fort Leonard Wood, Missouri.

Although not all of the documents associated with his disability processing are contained in files available to the Board, it appears that he was found unfit for continued service by a Physical Evaluation Board (PEB) in August 1981.  His records do contain a document indicating the applicant concurred with the informal PEB and waived his right to a formal hearing.  As part of his disability processing he did request that he be allowed to remain on active duty even if he was found physically unfit to do so.

His request for retention, following the findings and recommendation of the PEB, was denied and on 6 November 1981 he was honorably discharged from active duty with a 20 percent disability rating and received more than $4,000.00 in disability severance pay.  Both his DD Form 214 and DA Form (enlisted qualification record) reflect that he was a PFC at the time of his separation.  His DA Form 20 indicates he was reduced to the grade of E-3 on 11 September 1981.  The applicant authenticated his separation document, which reflected his grade as “E-3” at the time of his separation.

Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rated at less than 30 percent.

Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.

It appears, based on the applicant’s indication that evidence supporting his claim is in the files of the Atlanta Veteran’s Administration, that he may be drawing disability from the VA.  However, Title 38, United States Code, sections 310 and 331, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher VA rating does not establish error or injustice in the Army rating.  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 affect the individual's employability.  Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at a different disability rating based on the same impairment.  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.

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 6 November 1981, 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 6 November 1984.

The application is dated 30 June 1998 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

___lls____  __le____  __alr_____  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1999018042	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990825	
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.