MEMORANDUM OF CONSIDERATION IN THE CASE OF: BOARD DATE: DOCKET NUMBER: AR1999019754 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 Analyst The following members, a quorum, were present: Chairperson Member 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 states, in effect, that the medical condition, which resulted in his disability separation, has progressed since his separation. He states that the VA initially rated him at 10 percent in 1979, which was increased to 50 percent in 1983, 70 percent in 1990, and finally 100 percent in 1995. He maintains, in effect, that he “was more ill than even [he] believed.” In support of his request he submits copies of documents contained in his official military personnel file, which document his achievements while on active duty. 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 19 August 1971 and served successfully until June 1979 when he was admitted to Fitzsimons Army Medical Center when he “began to feel confused, had difficulty concentrating, became forgetful of small things and had a sensation of unreality.” His final diagnosis was “schizophrenia, latent type, chronic” and he was referred to a Physical Evaluation Board (PEB). An informal PEB convened on 20 August 1979 and found the applicant’s condition made him unfit for continued service and recommended the applicant be separated from the service with severance pay (10 percent rating). The applicant concurred with the findings and recommendation of the board and waived his right to a formal hearing. On 17 September 1979 the applicant was released from active duty by reason of physical disability and received more than $12,000.00 in disability severance pay. Although the applicant’s VA records were not available to the Board there is no reason to question the applicant’s statements concerning the increase in his disability rating over the years. 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. 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. The rating action by the VA does not necessarily demonstrate any error or injustice in the Army rating. The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit. Any rating action by the VA does not compel the Army to modify its rating. 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 27 September 1979, the date the applicant was released from active duty. The time for the applicant to file a request for correction of any error or injustice expired on 27 September 1982. The application is dated 24 October 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 ___xxx_ ___xxx__ ___xxxxx__ CONCUR WITH DETERMINATION Loren G. Harrell Director INDEX CASE ID AR199019754 SUFFIX RECON YYYYMMDD DATE BOARDED 19990805 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. ABCMR Memorandum of AR1999019754 Consideration (cont) 2