MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            1 September 1999 
	DOCKET NUMBER:   AR1999019547

	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. Stanley Kelley		Chairperson	
	Mr. James E. Anderholm		Member	
	Mr. Kenneth L. Wright		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 was not afforded an opportunity to have an extensive medical examination prior to his separation and as such was denied his right to be considered for separation by reason of his numerous physical problems.  He notes that subsequent to his separation he received disability compensation from the VA.  The applicant states that he was forces to sign a “waiver” statement prior to his separation which indicated that his medical condition had not changed since his last physical examination but contends this was merely a bureaucratic exercise so that he could be separated overseas and to “cover-up” the fact that he had not been properly scheduled for a separation physical examination.  In support of his request he submits a lengthy statement outlining the medical conditions for which he received treatment while on active duty, extracts from his service medical records and copies of documents indicating that he is receiving disability compensation from the VA.

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 served an initial period of active duty between 1968 and 1969.  On 
28 September 1974 the applicant reenlisted and served on continuous active duty as a cook until 29 March 1985 when he was honorably discharged upon completion of his service contract.

During his period of active duty he was promoted to pay grade E-5, served two successful tours overseas, was awarded a variety of military decorations and received satisfactory performance evaluations.

Extracts from the applicant’s service medical records, included with his application, indicate he was seen by medical personnel for a variety of ailments during the course of his military service.  There is, however, no indication he was ever awarded a permanent physical profile or that his medical conditions ever prevented him from performing his military duties.

The applicant, according to statements in his application, apparently underwent a physical examination in January 1985 as part of the Army’s “over-40” physical screening process.  A copy of that examination was not included in records made available to the Board nor submitted as part of the applicant’s application.  On 

19 March 1985 the applicant submitted a request to be separated overseas.  His request was approved on 21 March 1985.  On 29 March 1985 the applicant signed a statement indicating that there had been no changes in his medical condition since his 27 January 1985 physical examination.  Although he was provided a space on the statement to indicate any “exceptions” in his medical condition the applicant merely entered “none.”

Another statement, authenticated by the applicant’s servicing personnel officer and by the applicant on 29 March 1985 also indicated that the applicant’s physical profile on the date of separation was 1-1-1-1-1-1 and his physical category code was “A” indicating the applicant was in good health and that he met medical retention standards.

Subsequent to the applicant’s separation he was a 10 percent disability rating by the VA for arthritis of the lumbar spine.  By 1997 he had a combined service connected disability rating of 40 percent.  It appears from documents submitted by the applicant that by 1997 the rating for his back condition had increased to 
20 percent and he had been awarded a 10 percent disability rating for “excision of neuroma, left leg” a 10 percent rating for hypertension, and a 10 percent rating for high blood pressure.

Army Regulation 635-200, which establishes the policies and procedures for the separation of enlisted personnel states that separation physical examination are only required for individual’s being separated under certain provisions of that regulation.  Soldier’s being separated upon the expiration of their term of service (ETS) are not required to undergo a separation physical examination but may do so upon submitting a request in writing.

Army Regulation 40-501 (Standards of Medical Fitness) also confirms that a separation physical examination is not required for soldiers with less than 20 years of active service who are being separated at their scheduled ETS date.

Army Regulation 635-40 states 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 they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  When a slider is being processed for separation or retirement for reason 

other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the soldier is scheduled for separation or retirement, creates a presumption that the soldier is fit.

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.

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 March 1985, the date he was released from active duty.  The time for the applicant to file a request for correction of any error or injustice expired on 29 March 1988.

The application is dated 16 February 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

__sk____  __jea___  ___klw__  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1999019547	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990901	
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.