MEMORANDUM OF CONSIDERATION

	IN THE CASE OF-

	BOARD DATE:            7 September 2000  
	DOCKET NUMBER:   AR2000040271

	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. Carl W. S. Chun		Director	
	Ms. Deborah L. Brantley		Analyst	

  The following members, a quorum, were present:

	Ms. Celia L. Adoplhi		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Thomas B. Redfern, III		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 that he was not granted a disability retirement upon separation from active duty but has now “been given 100% disability from the VA” retroactive to his separation date.  He submits no evidence in support of his request.

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 initially entered active duty on 7 July 1987 and was honorably discharged on 19 September 1988 in order to accept an appointment as a warrant officer with immediate call to active duty.

On 24 July 1992 he was discharged by reason of physical disability in the grade of CW2.  Although his records do not contain any medical records or documents associated with his disability processing, his DD Form 214 (Certificate of Release or Discharge from Active Duty) indicates he received more than $17,000.00 in disability severance pay with a disability rating of 20 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.

The Army Physical Disability Agency (USAPDA) has noted in advisory opinions in similar cases that confusion frequently arises from the fact that the Army and the DVA use different rating systems.  While both use the Veterans Administration Schedule for rating Disabilities (VASARD), not all of the general policy provisions set forth in the VASARD apply to the Army.  The Army rates only conditions determined to be physically unfitting, because they adversely effect the individual’s ability to perform assigned duties, thus compensating the individual for loss of a career.  The DVA, on the other hand, may rate any service-connected impairment, in order to compensate the individual for loss of civilian employability or social functioning.  The USAPDA has also pointed out that military disability ratings are based upon the degree to which a medical condition effects the ability to perform duty and not upon the diagnosis or name attached to the condition.  By way of comparison, the VA can and does rate an individual for pain in many instances.  The Army can only rate the same painful condition if it impairs the soldier’s ability to perform assigned tasks.  

Army Regulation 635-40 states that the VA makes its own decisions concerning entitlement to disability compensation and ratings based on the statutes and regulations that govern its operations.  The VA is not bound by decisions of the Army; and likewise, the Army is not bound by VA decisions.

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 24 July 1992, the date the applicant was discharged by reason of physical disability.  The time for the applicant to file a request for correction of any error or injustice expired on 24 July 1995.

The application is dated 1 January 2000 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

___cla__  ____wtm_  __tbr___  CONCUR WITH DETERMINATION

    Carl W. S. Chun
    Director, Army Board for Correction
	                of Military Records

INDEX

CASE ID	AR2000040271	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000907	
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.		
3.		
4.		
5.		
6.