RECORD OF PROCEEDINGS


         IN THE CASE OF:


         BOARD DATE: 27 MAY 2004
         DOCKET NUMBER: AR2003096587


         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).

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THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant requests physical disability retirement.

2. The applicant states that his honorable discharge should be changed to a permanent disability [retirement] with all medical and post exchange privileges.

3. The applicant provides a copy of a Medical Evaluation Board proceedings and a copy of a Department of Veterans Affairs (VA) rating decision.

CONSIDERATION OF EVIDENCE:

1. The applicant is requesting correction of an alleged error or injustice which occurred on 1 May 1994. The application submitted in this case is dated 7 April 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's complete military records are unavailable. The available records, however, show that the applicant was a Judge Advocate General's Corps officer who entered on active duty on 21 November 1983, with over 3 years of prior inactive service.

4. A 17 August 1993 medical record narrative summary indicates that the applicant complained of bilateral knee pain. The summary shows that he was initially injured in 1986 while on a four-mile run in Hawaii, and since then had a variety of problems with both knees. He was treated with physical therapy. His problems were re-aggravated, and throughout the subsequent seven years he had persistent difficulties with running. He was transferred to the Washington D.C. area in 1989 and had bony evidence of arthritis. In 1991 he had trouble going down stairs. An orthopedic surgeon recommended arthroscopy, however, he was never scheduled for knee surgery. He had problems with activities and was unable to run two miles for the physical fitness tests. The applicant's knee pain prevented him from running, and standing for prolonged periods of time. He was able to walk for only approximately one mile and sitting for prolonged periods of time caused him to get a stiff sensation in his knees. He had swelling with activities.

5. The examining physician stated that the applicant's knee pain interfered with his activities of daily living, preventing him from being able to accomplish his duties, and affecting his future career, with difficulties in standing for prolonged periods of time and sitting for prolonged periods of time. Despite orthotic treatment, he had intermittent foot pain. He diagnosed the applicant's condition as patellofemoral pain syndrome, right greater than left, moderate, with milid patellofemoral degenerative joint disease; flexible pes planus, with severe over-pronation of the mid foot and hind foot; sub-calcaneal fat pad herniation; mycotic nails, right greater than left; hammer toe deformities of the lesser toe digits; mild leg length inequality with the left being shorter then the right, approximately 2 centimeters, EPTS (existed prior to service); and acquired hallux valgus, right greater than left with callosities and pain. He stated that the applicant did not meet the medical standards for retention. On 17 August 1993 a MEB recommended that the applicant be referred to a Physical Evaluation Board (PEB) because of the applicant's above-mentioned medical conditions. The applicant concurred.

6. There is no available record of any PEB proceedings or any other medical records concerning the applicant.

7. The applicant was honorably discharged on 1 May 1994 at Fort Myer, Virginia because of the completion of his required active service.

8. The applicant applied for an appointment in the Army National Guard of the District of Columbia and was appointed a major in the Guard on 8 May 1995. He was discharged from the Army National Guard on 1 October 1996.

9. A 12 August 2002 VA rating decision shows that the applicant was awarded a 10 percent service connected disability rating for patellofemoral syndrome right knee with degenerative changes; a 10 percent rating for patellofemoral syndrome with degenerative changes left knee; a 10 percent rating for acquired pes planus with hallux valgus with hammer toe deformity, bilateral; and a zero percent rating for onychomycosis of toenails.

10. 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.

11. Army Regulation 40-501, then in effect, 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.

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12. 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.

13. Title 38, United States Code, sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA, however, is not required by law to determine medical unfitness for further military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

DISCUSSION AND CONCLUSIONS:

1. The applicant was discharged upon completion of his required period of active service, approximately 9 months after completion of the August 1993 MEB proceedings. Absent evidence to the contrary, he continued to perform his duties and was medically fit at the time of his discharge. The facts and circumstances concerning the applicant’s discharge are not available; however, administrative regularity in the processing of the applicant’s discharge is presumed. There is nothing in the available records or in anything submitted by the applicant to overcome that presumption.

2. Despite the applicant's contentions, he himself felt that he was physically fit as evidenced by his request for appointment in the District of Columbia Army National Guard approximately 1 year after his discharge from active duty. Granting his request, the Army National Guard apparently determined that he was physically fit for an appointment.

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.

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4. The award of VA compensation does not mandate disability retirement or separation from the Army. The VA, operating under its own policies and regulations, may make a determination that a medical condition warrants compensation. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved, the applicant's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify him for VA benefits based on an evaluation by that agency. Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. The Army must find a member physically unfit before he can be medically retired or separated.

5. Notwithstanding the MEB proceedings and the applicant's contentions, there is no evidence that the applicant was medically unfit at the time of his discharge in 1994. Therefore, there is no basis for physical disability retirement or separation.

6. Records show the applicant should have discovered the alleged error or injustice now under consideration on 1 May 1994; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 30 April 1997. 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

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.

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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

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INDEX

CASE ID	AR2003096587
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.