MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:           19 January 2000                   
	DOCKET NUMBER:   AR1999033063

	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.  

	Ms. Deborah L. Brantley .		Senior Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Mr. John P. Infante		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 in lieu of disability separation.  He states, in effect, that he is currently rated at 60 percent disabled by the VA and as such believes a review of his 20 percent Army disability rating is in order.  He notes that because he is not medically retired he has no military benefits.  (Note:  A DD Form 293 was accepted in lieu of a DD Form 149.)

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 entered active duty on 29 July 1987.

In December 1992 he was seen by medical personnel with a “chief complaint” of low back pain and referred for disability processing.  With the exception of the narrative medical summary from his Medical Evaluation Board, which he provided, documents associated with his disability processing were not in records available to the Board.  However, his records do indicate that he was honorably discharged from active duty by reason of disability on 26 April 1993 with a disability rating of 20 percent.  He received more than $14,000 in disability severance pay.

A 1995 VA rating document, provided by the applicant, notes that the VA granted him a combined 50 percent disability rating effective 9 September 1998.  The combined rating was based on the applicant’s right knee condition (previously rated at 0 percent and increased to 10 percent) and his back condition (originally rated by the VA at 20 percent and increased to 40 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.

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 on 26 April 1993, the date the applicant was released from active duty.  The time for the applicant to file a request for correction of any error or injustice expired on 26 April 1996.

The application is dated 18 October 1999 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

___rvc __  ___clg___  _jpi_____  CONCUR WITH DETERMINATION

		Karl F. Schneider
		Director, Army Review Boards Agency 

INDEX

CASE ID	AR1999033063	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000119	
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.