APPLICANT REQUESTS: In effect, the applicant requests physical disability retirement or separation. He states that he should have been discharged for medical reasons based upon a line of duty injury.
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:
The applicant was ordered to active duty in support of Operation Desert Storm on 1 February 1991 and was separated on 23 March of that same year.
In March 1991 the applicant claimed that he suffered a hamstring pull of the right leg. He stated that during physical training while mobilized during Operation Desert Storm he had lower back pain radiating over his right buttocks and down his right leg. He did not seek immediate care for what appeared to be a muscle sprain. Prior to demobilization he was informed that he had a possible hamstring muscle pull. During the ensuing months he was never able to regain full strength in his right leg and the lower back pain would return with strain or attempts at exercise.
A 8 July 1992 medical report indicates that the applicants condition was diagnosed as mild to moderate acquired spinal stenosis with no disc herniation.
A 18 August 1992 neurological evaluation provided a diagnosis of low back syndrome.
A 18 January 1993 medical report indicates that the applicant had chronic lower back pain, probably secondary to disc disease and degenerative changes at the lower lumbar facet joints.
A 7 August 1993 report of medical examination indicates that the applicant was medically qualified for retention in the Reserves with a physical profile of T3 1 1 1 1 1. He was diagnosed as having spinal stenosis and a high cholesterol level. In the report of medical history he furnished for the examination the applicant stated that he had spinal stenosis, degeneration of the lower lumbar spine.
A 7 January 1995 medical report from a military orthopedic clinic indicates that the applicant has spinal stenosis.
A 27 February 1995 VA medical report indicates that the applicant has spinal stenosis with degenerative lower lumbar spine.
On 9 September 1995 the VA denied the applicants claim for service connected disability for a back condition with right leg radiation, for arthritis of shoulders, knees, feet, and ankles, and for high cholesterol. That agency stated that the evidence did not establish that the degenerative changes that were currently diagnosed were incurred or aggravated during the brief period of active duty in February and March 1991 or manifested to a compensable degree within one year following separation. The service records showed no evidence of back problems until 1993; there was no clear evidence linking them to what was diagnosed as a hamstring pull in March 1991.
On 16 April 1996 the VA provided the applicant a statement of the case, a summary of the law and evidence concerning his claim and the VA decision to deny his claim for service connection for degenerative disc disease and spondylosis lumbosacral spine with right leg symptoms.
In the processing of this case an advisory opinion (COPY ATTACHED) was obtained from the medical advisor to the DA Military Review Boards Agency. That official stated that the applicants diagnosis of spinal stenosis is a condition which develops over many years or even a lifetime. His diagnosis was known to the examining physician which determined the applicant to be qualified for retention in 1993. The applicants duties did not cause his condition. The medical advisor stated that there was no evidence to support a medical discharge.
Army Regulation 40-501, paragraph 3-3b(1), as amended, 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.
Army Regulation 635-40, paragraph 2-2b, as amended, 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.
Army Regulation 40-501, at paragraph 3-3a, provided, in pertinent part, that performance of duty despite an impairment would be considered presumptive evidence of physical fitness.
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
23 March 1991, the date of his release from active duty. The time for the applicant to file a request for correction of any error or injustice expired on 23 March 1994.
The application is dated 16 July 1995 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
CONCUR WITH DETERMINATION
Karl F. Schneider
Acting Director
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