MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:          

	BOARD DATE:            27 February 2001 
	DOCKET NUMBER:   AR2000045894

	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. John N. Slone		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. Roger W. 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, that his Army disability rating be increased.  He states, in effect, that at the time of his disability retirement from the Army the “complete conditions” of his hips were not known, and that the examination of his eyes was not complete and that he was not informed of the problems he would have.  In support of his request he submits a copy of a 2000 statement from his eye doctor outlining the current condition of his eyes.  He also refers the Board to his VA records, although those records were not included with his application.

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 1958 and 1961.  On 
12 February 1962 he reenlisted and returned to active duty.

On 17 March 1981 the applicant was issued a permanent “P-2” profile for his eye condition (Keratitis Sicca – dry eyes).

In May 1983 a Medical Evaluation Board (MEB) concluded the applicant suffered from bilateral avascular necrosis, both femoral heads, secondary to high doses of Prednisone therapy in March 1981 and severe Keratitis Sicca, secondary to conjuctival mucosal cicatrix in both eyes.  The evaluating physician noted that the applicant’s chief complaint was pain in his left hip and that he has “problems with light affecting his eyes…has to wear sunglasses all the time and he has to put Liquid Tears in his eyes.”  The medical record report indicated that the applicant “was in otherwise good medical condition until March 1981” at which time he was treated for a sulfa allergy with a high dose of Prednisone for approximately two months.  He was ultimately released from his hospitalization and in November 1982 was diagnosed with aseptic necrosis of the left femoral head.  He was again admitted to the hospital, treated and returned to duty.  The applicant continued to experience pain in his left hip and was evacuated from his assignment in Germany for evaluation of the pain which precluded him from performing full active duty.  It was determined at that time that the applicant’s hip condition “was a complication of his high dose steroid treatment while at Walter Reed” in the spring of 1981.  The MEB also found that the applicant suffered from Stevens-Johnson Toxic Necrolysis and “now has Keratitis Sicca, severe, secondary to conjunctival mucosal cicatrix, both eyes, making him unfit for retention.”  The applicant nonconcurred with that portion of the MEB which merely noted that the applicant had to wear sun glasses.  He indicated in his statement, which was included with the MEB findings, that he wanted to “point out that in the mornings when wearing sun glasses [he] was unable to see at all” and asked that his records reflect this impairment.  The MEB referred the applicant to a Physical Evaluation Board (PEB).

A formal PEB convened on 11 July 1983.  In the record of the PEB proceedings the applicant indicated that he requested a “total disability rating of at least 70% and permanent retirement” based on his hip and eye conditions.  The PEB concluded that the applicant’s hip and eye conditions rendered him unfit for continued military service and recommended disability retirement with a combined disability rating of 70 percent.  The applicant concurred with the findings and recommendation of the PEB.

On 1 September 1983 the applicant was retired by reason of physical disability.  At the time of his separation he had more than 24 years of active military service.

The 2000 statement provided by the applicant’s eye doctor describes the applicant’s eye condition and notes that because of his condition he “can have a myriad of ocular problems that happen months and years after this disease and he has had those” and that his “vision is significantly worse now.”  The physician indicated that he felt “that some of this is due to his chemical conjunctivitis and secondary lid changes from his Stevens-Johnson syndrome complicated by environmental factors and his lashes and lids irritating his eye.”

The applicant implies in his petition to the Board that he is receiving compensation from the VA for his service incurred disabilities.

The Army Physical Disability Evaluation System sets forth policies, responsibilities, and procedures that apply in determining whether a member is unfit because of physical disability to perform the duties of his office, grade, rank, or rating.  If a member is found unfit because of physical disability, it provides for disposition of the member according to applicable laws and policies.  The objectives of the evaluation system are to maintain an effective and fit military organization with maximum use of available manpower and to provide benefits for eligible members of the Army whose military service is ended because of a service-connected disability.  

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.  As such the VA would be the appropriate agency to determine if increased compensation were warranted based on the deterioration of a medical condition subsequent to an individual’s separation from active duty.

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 1 September 1983, the date the applicant was retired by reason of physical disability.  The time for the applicant to file a request for correction of any error or injustice expired on 1 September 1986.

The application is dated 14 July 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

___rwa___  ___mhm_  ___jns__  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2000045894	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010227	
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.  179	142.00	
2.		
3.		
4.		
5.		
6.