MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:           4 August 1999     
	DOCKET NUMBER:   AR1999022449

	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. Fred K. McCoy		Chairperson	
	Ms. Irene N. Wheelwright		Member	
	Mr. George D. Paxson		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, that he should have been medically retired vice medically separated in 1989.  He states that he lost “1/2 of his left lung” and submits copies of a 1998 VA rating to support his claim.

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 November 1965 and December 1971.  He reenlisted and returned to active duty on 17 January 1978.

On 10 March 1989 the applicant was released from active duty by reason of physical disability with an Army disability rating of 10 percent.  There is no indication in available records which confirms the basis for the 10 percent rating. The applicant received more than $37,000.00 in disability severance pay.

The 1998 VA rating document indicates the applicant’s service medical records indicate he underwent a “left upper lobe lobectomy for the removal of a fairly large lesion in the left mid upper lung field” in May 1986.  The VA rated the condition at 30 percent effective 18 March 1994.  The VA document also noted the applicant had been granted a VA service connected disability of 10 percent for “carcinoma supraglottic larynx” effective 1 May 1997 and a 10 percent rating for “intercostal neuralgia, status post left hamartoma” effective 18 March 1994.  As of 1 May 1997 the applicant’s combined service connected disability rating by the VA was 40 percent.

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.  There is no evidence, and the applicant has not provided any, which confirms his Army rating was in error.  The rating action by the VA does not necessarily demonstrate any error or injustice in the Army 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 10 March 1989, 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 10 March 1992.

The application is dated 2 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

___fkm__  __inw___  __gdp___  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1999022449	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990804	
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.