RECORD OF PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:           12 FEBRUARY 2004                  
	DOCKET NUMBER:   AR2003091585

	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	
	Ms. Gale J. Thomas		Analyst	

  The following members, a quorum, were present:

	Ms. Joann H. Langston		Chairperson	
	Mr. Lester Echols		Member	
	Mr. Robert J. Osborn II		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 that her service medical records be corrected to show that she “was found to have multiple sclerosis (MS) while serving on active military service.”  Although not articulated in her application, the applicant may also be implying that she should have been retired or separated by reason of physical disability.

2.  The applicant states that she “was diagnosed with early symptoms of multiple sclerosis” and that because she did not understand the effect of the disease she “went through depression because of the MS.”  She states, in effect, that a recent Department of Veterans Affairs (VA) rating showed that she “was diagnosed with MS while serving on active military duty.”

3.  Although the applicant indicates on her application that she was enclosing a copy of her new rating decision by the VA, there were no enclosures with her application. 

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an error which occurred on 16 June 1986.  The application submitted in this case is dated 23 May 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 Regular Army on 22 February 1978, for a period of 4 years.

4.  On 24 January 1985, the applicant was given a permanent physical profile for right foot dysfunction.  She was limited to running no more that two miles per week, and given the option to take an alternate physical training (PT) test by using a bicycle or by walking.  

5.  On 27 August 1985, a Military Occupational Specialty (MOS)/Medical Retention Board determined that the applicant’s permanent medical conditions did not preclude her from satisfactorily performing the requirements of her MOS and retained her in her primary specialty (75C-personnel management specialist).  

6.  On 16 June 1986, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 4, for expiration term of service.  Her DD Form 214  (Certificate of Release or Discharge from Active Duty) indicates she had 8 years, 3 months, and 25 days of active Federal service.

7.  The applicant’s medical records do not include a diagnosis of multiple sclerosis.  

8.  Title 38, United States Code, sections 1110 and 1131, 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 VA rating does not establish error or injustice in the Army’s basis for separation.  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.  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.  A common misconception is that veterans can receive both a military retirement for physical unfitness and a VA disability pension.  By law, a veteran can only be compensated once for a disability.  If a veteran is receiving a VA disability pension and this Board corrects the records to show that a veteran was retired for physical unfitness, the veteran would have to choose between the VA pension and military retirement.

9.  Army Regulation 40-66 (Medical Record Administration and Health Care Documentation) states that the primary purpose of an individual’s health record is to provide a complete, concise medical and dental history of everyone in the Active Army or in the RC (Reserve Component).  It is used for patient care, medicolegal support, and research and education.  The record helps medical officers advise commanders on retaining and using their personnel, helps physical evaluation boards appraise the physical fitness of Army members and eligibility for benefits, and simplifies the adjudication of claims and is an important source of medical research information.

DISCUSSION AND CONCLUSIONS:

1.  The fact that the VA may now have determined that the applicant exhibited signs of MS while on active duty is not evidence that her service medical records are in error.  The evidence indicates that no such diagnosis was made while the applicant was on active duty and as such, there is no basis to now insert such a diagnosis in her service medical record.

2.  Although the applicant may not have specifically requested disability retirement or separation, the evidence which is available indicates that she did not have any medically unfitting condition which required physical disability processing.  Therefore, there would be no basis for physical disability retirement or separation.

3.  If the VA did grant the applicant a disability rating for MS, that does not necessarily demonstrate any error or injustice in the basis for her separation from the Army.  The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit.  Any rating action by the VA does not compel the Army to modify its reason or authority for separation.

4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 16 June 1986; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
15 June 1989.  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 file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__JHL  __  __LE ___  __RJO __  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.

		___Joann H. Langston____
		        CHAIRPERSON

INDEX

CASE ID	AR2003091585	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20040212	
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.	124.00	
2.		
3.		
4.		
5.		
6.