RECORD OF PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            27 MAY 2004                  
	DOCKET NUMBER:   AR2003097380

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mr. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Melvin Meyer		Chairperson	
	Ms. Regan Smith		Member	
	Mr. Thomas O'Shaughnessy		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests physical disability retirement or separation.

2.  The applicant states that he should have been medically discharged.  His records were not reviewed when he was "thrown out" without an explanation.  He is receiving a service connected disability rating for his condition (urticaria), is unable to work outside or do any outside activities.  

3.  The applicant provides a copy of a 3 November 1959 DA Form 8-118 (Medical Board Proceedings), and related documents, to include clinical records, reports of medical examination and medical history, physical profile record, and health records.  He provides a statement summarizing his military service and his medical condition.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 22 March 1965.  The application submitted in this case is dated      29 September 2003.  

2.  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.  This provision of law allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant enlisted in the Army for three years on 23 April 1957, completed training, and in October 1957 was assigned to Fort Hood, Texas, as a heavy weapons infantryman.  In November of that year he was assigned to an armored unit in Germany as a light vehicle driver.  He was promoted to pay grade E-4 on 2 September 1959.

4.  Medical board proceedings of 3 November 1959 conducted at the Army hospital in Frankfurt, Germany, show that he was diagnosed with urticaria, generalized, due to cold.  The board determined that the applicant did not meet the physical standards for retention on active duty, and inasmuch as he did not require hospitalization or active military service, it recommended that he be returned to the United States for separation from the Army.  

5.  The applicant returned to the United States and was admitted to Letterman General Hospital in San Francisco on 25 February 1960, where he underwent various tests, went on convalescent leave, and upon return continued with tests.  He was discharged from the hospital on 13 April 1960 with a diagnosis of urticaria, chronic, generalized, due to cold, mild, not treated, unchanged; and rubeola, treated, improved.  He was discharged from the Army on 15 April 1960 with an honorable characterization of service.  

6.  On 4 May 1960 the applicant reenlisted in the Army for six years.  He was assigned to Fort Ord, California, and subsequently to Fort Irwin, California as a tank crewman (gunner).  In December 1961 he was assigned to a tank battalion in Germany in a TDY (temporary duty) status.  He returned to the United States at Fort Irwin in April 1962.  In May 1963 he was promoted to pay grade E-5.  In June 1963 the applicant was assigned to the 3d Brigade of the 4th Armored Division in Germany as a command vehicle section leader. 

7.  On 20 April 1964 the applicant reenlisted in the Army for six years.  In November 1964 he was assigned in country to an armored battalion as a command vehicle section leader.   

8.  A 16 December 1964 clinical record show that the applicant was seen in the dermatology service at 97th General Hospital, complaining of recurrence of the cold urticaria since his arrival in Germany, particularly in winter.  He was tested for exposure to cold.  The exposure resulted in definite urticarical reactions.  The attending physician stated that the applicant should not continue duty in a tactical unit and should not be stationed in northern Europe or the United States.  He should have a profile board award him a P3 with assignment restrictions providing for no assignment which requires exposure to cold environments.  A   17 December 1964 physical profile record shows his physical profile serial as      3 1 1 1 1 1 because of hypersensitivity of the skin to cold, with no assignment which required exposure to cold environments, including northern Europe.

9.  On 22 December 1964 the applicant's commanding officer recommended that the applicant be eliminated from the Army for unfitness under the provisions of Army Regulation 635-208, because of his numerous letters of indebtedness, his malingering, his absences from his place of duty, and his irresponsibility.  The applicant stated that he had been counseled on the basis of the action to discharge him, declined counsel, and stated that he did not want a hearing before a board of officers.  He declined to submit a statement in his own behalf.  He stated that he understood the nature and consequences of the undesirable discharge that he might receive.

10.  On 16 February 1965 the separation authority approved the recommendation and directed that the applicant receive a General Discharge Certificate.  He was discharged on 22 March 1965.  A report of medical examination of that same date shows that he was medically qualified for separation with a physical profile serial of 1 1 1 1 1 1.

11.  On 19 August 1969 the applicant requested a waiver through recruiting officials in order to reenlist.  On 8 October 1969 his request was disapproved.

12.  On 26 August 1971 the applicant had a formal hearing before the Army Discharge Review Board in order to have his discharge upgraded.  During the board proceedings the applicant stated that he would like to go back on active duty; however, he stated that he understood the board had no authority to do so. He stated that he wanted to have his discharge corrected and would appreciate any help from the board.  The board denied his request to upgrade his discharge; however, recommended acceptance of a waiver [in order to reenlist] if otherwise qualified.

13.  A 30 May 1998 rating from the Department of Veterans Affairs (VA) shows that the applicant is receiving a 10 percent disability rating for cold urticaria.  

14.  Army Regulation 635-208, in effect at the time, provided the authority for discharging enlisted personnel for unfitness.  Separation action was to be taken when the commander determined that the best interest of the service would be served by eliminating the individual concerned and reasonable attempts to rehabilitate or develop the individual to be a satisfactory soldier were unlikely to succeed; or rehabilitation was impracticable, such as in cases of confirmed drug addiction or when the medical and/or personal history indicated that the individual was not amenable to rehabilitation measures; or disposition under other regulations was inappropriate.  Unfitness included frequent incidents of a discreditable nature with military or civil authorities and an established pattern of shirking.  An undesirable discharge was normally considered appropriate; however, in unusual circumstances, a general or honorable discharge was authorized, as directed by the convening authority.

15.  Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

16.  Army Regulation 40-501 provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.

17.  Army Regulation 40-501, then in effect, provided in pertinent part, that performance of duty despite an impairment would be considered presumptive evidence of physical fitness.

18.  Army Regulation 635-40, then in effect, provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

19.  Title 38, United States Code, permit the Department of Veterans Affairs (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 civilian 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.  The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while the VA may rate any service connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should have been medically discharged in 1965 because of his hypersensitivity to cold is belied by his two reenlistments, one in 1960 and the other in 1964, after his condition was diagnosed, and by his efforts subsequent to 1965 to be reinstated in the Army.  The applicant was physically fit for retention.  The applicant himself had no qualms about serving in the Army with his medical condition.  He wanted to remain, but was discharged only because of his own wrongdoings.

2.  The applicant's continued performance of duty raised a presumption of fitness which he has not overcome by evidence of any unfitting, acute, grave illness or injury concomitant with his separation.  

3.  The fact that the VA, in its discretion, has awarded the applicant a disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish physical unfitness for Department of the Army purposes.

4.  He did not have any medically unfitting disability which required physical disability processing.  Therefore, there is no basis for physical disability retirement or separation.
5.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.   

6.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 22 March 1965; therefore, the time for the applicant to file a request for correction of any error or injustice expired on         21 March 1968.  However, the applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__MM___  __RS ___  __TO ___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.

		_____Melvin Meyer______
		        CHAIRPERSON

INDEX

CASE ID	AR2003097380	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20040527	
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.