MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            5 August 1999    
	DOCKET NUMBER:   AR1999022533

	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. Mark D. Manning		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Ernest W. Lutz, Jr.		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 vice disability separation.  He states, in effect, that his Army disability rating should have been higher in view of the fact that he was suffering from depression and was on convalescent leave at the time his hearing.  He states that his disabilities are currently rated at 50 percent which he believes is sufficient for “medical retirement” in spite of the fact that his “legs” are currently rated at only 20 percent.

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:

The applicant entered active duty on 24 October 1978.

On 24 September 1991 the applicant underwent a physical examination as part of a Medical Evaluation Board.  His chief complaint was “bilateral lower extremity pain.”  The evaluating physician noted the applicant had a “long standing complaint of bilateral lower extremity pain, made worse by standing, and running.”  The final diagnosis was “bilateral lower extremity pain, etiology unclear” and the physician recommended referral to a Physical Evaluation Board (PEB) “due to the patient’s inability to perform his military duties and his inability to pass the physical fitness test….”

An informal PEB, convened on 25 November 1991, concluded the applicant had no functional impairment which prevented satisfactory performance of duty and recommended he be returned to duty.  The applicant nonconcurred with the findings and recommendation of the informal PEB and demanded a formal hearing.

The formal PEB, convened on 10 February 1992, concluded the applicant’s leg condition, which they rated at 10 percent, prevented satisfactory performance of his duties and recommended he be separated with disability severance pay.  The applicant, according to the PEB record, was present during the February 1992 formal hearing.

On 12 March 1992 the applicant was discharged by reason of disability and received over $42,000.00 in disability severance pay.

Subsequent to his separation, according to a 16 October 1998 letter from the VA, he was awarded disability compensation for Neurosis (30%), Resection of large intestine (10%), and two individual ratings of 10 percent for unspecified tendon inflammation.

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.  A 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 12 March 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 12 March 1995.

The application is dated 13 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

___mdm_  __aao___  __ewl___  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1999022533	
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. 108.002 		
2.  142.00		
3.		
4.		
5.		
6.