MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            22 June 2000      
	DOCKET NUMBER:   AR2000040412

	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		Senior Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Roger Able		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 his disability should have been rated at least at 30 percent "granting a retirement."

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:  Attempts to obtain the applicant's military records were not successful.  Information contained herein was reconstructed entirely from information provided by the applicant.

In May 1991 the applicant was determined by a Medical Evaluation Board (MEB) to be suffering from Post Traumatic Stress Disorder (PTSD).  The narrative summary which accompanied the MEB indicated that the applicant was a 17 year member of the Texas Army National Guard and had served a period of active duty during the Vietnam Era which included a tour in the Republic of Vietnam.  He was mobilized in support of Operation Desert Storm.

In January 1991 the applicant was treated for knee and shoulder pain following a training exercise accident.  The MEB summary, however, did not note that his knee or shoulder condition were unfitting.  The MEB did, however, conclude that the applicant had been treated for recurrent PTSD symptoms by the VA since 1973 and that his symptoms were exacerbated as a result of his mobilization in support of Operation Desert Storm.  (There is no indication the applicant actually deployed to Southwest Asia.)  The applicant indicated in the MEB summary that he was suffering increased distress, depression and increased social isolation as a result of his training accident and "witnessing the return of combat units from Saudi."

The MEB concluded that the applicant suffered from PTSD, chronic dermatitis and a right eye condition and referred him to a Physical Evaluation Board (PEB). The MEB also noted the applicant had a high frequency hearing loss but did not conclude it was unfitting enough to warrant consideration by the PEB.

An informal PEB convened on 16 May 1991 and concluded that the applicant's PTSD prevented "reasonable performance of duties required by grade and military specialty" and recommended separation with severance pay based on a 10 percent disability rating.  Although only the front page of the PEB was provided to the Board there is no indication the applicant was seen by a formal PEB and as such it would appear that he concurred with the findings and recommendation of the informal PEB and did not demand a formal hearing.

Based on information provided by the applicant on his application to the Board, he was apparently released from the Army National Guard by reason of disability in September 1991.

In 1999 the applicant underwent an operation on his left shoulder at a Veterans Hospital in Texas.  There is however, no indication of the applicant's current VA disability rating.

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.

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 in September 1991, the date the applicant was released from military service.  The time for the applicant to file a request for correction of any error or injustice expired in September 1994.

The application was originally dated in March 1999 and resubmitted in March 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

___lls_  __aao___  __ra____  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2000040412	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000622	
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.	142.00	
2.		
3.		
4.		
5.		
6.