MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           10 February  2000                   
	DOCKET NUMBER:   AR1999026117

	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 
 	 		 	
	Mr. W. W. Osborn, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. Van B. Cunningham		Chairperson	
	Mr. James P. Steuve		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 to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	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: Reconsideration of his earlier application to correct his records by showing that he was separated for physical disability retirement.

APPLICANT STATES: In effect, that the letter from a Tripler Army Hospital physician to the effect that an in service chest X-ray showed an compression fracture of the fifth thoracic vertebra was not considered by the Board.  He states that the letter was furnished to the Disabled American Veterans but that organization did not make it available to the Board. He submits a copy of that letter from Dr. Liem.

NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records which were summarized in a memorandum of consideration (MOC) prepared to reflect the Board's previous consideration of the case on
5 May 1999 (COPY ATTACHED).  

The applicant and his congressional representative were informed that the case would be submitted to the Board to consider this inadvertently omitted evidence.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  Notwithstanding that the applicant was informed that the subject letter from 
Dr. Liem had not been available, the MOC notes that the document was the basis for the VA’s decision to grant the applicant service connection for a back problem.  The prior Board clearly knew of the content of that letter even though it was not available.  

2.  Nevertheless, this Board has specifically considered Dr. Leim’s letter and concludes that it does not demonstrate that the applicant was unable to perform duty at the time of his separation.    

3.  Prior to reaching the determination that it was not in the interest of justice to excuse the failure to timely file, the Board looked at the entire file.  It was only after all other aspects had been considered and it had been concluded that there was no basis to recommend a correction of the records that the Board considered the statute of limitations.  Had the Board determined that an error or injustice existed it undoubtedly would have recommended relief in spite of the failure to submit the application within the 3 year time limit.  The Board has never denied an application simply because it was not submitted within the required time.

4.  A reasonably alert reading of the MOC would reveal that there is a  fundamental difference between the Army and the VA disability systems.  Notwithstanding existing medical conditions or physical profiles, a soldier cannot normally be found unfit as long as duty is being performed.  The VA, on the other hand, can grant a service connected disability rating simply because the individual’s industrial or social adjustment is impaired by a condition that was incurred or aggravated during the period of service.  The VA also correctly infers that the actions by the VA are irrelevant to the question of disability separation or retirement from the military.  The applicant was performing duty and could not have been found unfit. 

5.  The members of the previous panel of the Board were aware of the content of Dr. Liem’s letter and of the action by the VA.  They correctly concluded that these factors taken together with the other evidence of record did not demonstrate that the applicant had been physically unable to perform duty at the time of his discharge.  Therefore, they relied on the 3 year limit simply because there was no basis to find in the applicant’s favor.   

6.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

7.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__VBC__  ___JPS _  ___KLW__  DENY APPLICATION

Karl F. Schneider
Director, Army Review Board Agency

						

INDEX

CASE ID	AR1999026117	
SUFFIX		
RECON		
DATE BOARDED	20000210	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	107.00	
2.		
3.		
4.		
5.		
6.