RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           22 JULY 2004
      DOCKET NUMBER:  AR2004100773


      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. Walter Morrison               |     |Chairperson          |
|     |Mr. Eric Andersen                 |     |Member               |
|     |Ms. Barbara Ellis                 |     |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.

2.  The applicant states that his discharge was not just a regular
discharge.  He was medically retired.

3.  The applicant provides a copy of his DD Form 214 (Certificate of
Release or Discharge from Active Duty), 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 8 May 1990.  The application submitted in this
case is dated   20 October 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 13 April 1982 and
remained on continuous active duty until his discharge, with reenlistments
on      6 June 1985 for three years, and on 23 November 1988 for six years.
 He was trained as a multichannel communications systems operator at Fort
Gordon, Georgia and in December 1982 was assigned to a signal company in
Germany.
He was promoted to sergeant in May 1985.

4.  The applicant's four evaluation reports on file show that his rating
officials considered him a fully capable noncommissioned officer.  All four
reports show that he passed the Army physical fitness test, the last test
being in January 1989.
5.  The applicant was treated for low back pain in May 1983 and ankle pain
in September 1984.  He was treated in the spring of 1985 because of a
twisted left knee.  In October 1985 he was treated because of pain in his
right knee and in the May/June 1986 time frame because he pulled a muscle
in his groin.

6.  His medical records show that he was treated for pain in his right hip
in July 1986 and again in August of that year.  He underwent physical
therapy at the Frankfurt Medical Center for his right hip pain in September
1986 and was seen by doctors in the orthopedic clinic in January 1987.  He
received a temporary profile for chronic hip pain on 12 January 1987.  In
August 1987 he received a temporary profile for arthritis to his right hip.
 He continued to be seen for his right hip condition and in January 1988
received a permanent physical profile serial of 1 1 P3 1 1 1 because of
degenerative joint disease right hip, severe.  An August 1989 permanent
profile report shows the same physical profile serial for arthritis to his
right hip.

7.  On 24 July 1989 the applicant's commanding officer requested that the
applicant undergo a medical evaluation to determine his potential for
retention in the Army, stating that he had an extensive history of chronic
hip pain because of degenerative joint disease, resulting in a substantial
amount of discomfort and a severe restriction on the type and intensity of
duties which he could be assigned.

8.  On 18 September 1989 the applicant's former commanding officer provided
a letter of evaluation to the commander of the 97th General Hospital
concerning the applicant's condition.  He stated that the applicant
suffered from chronic hip pain, resulting from degenerative joint disease,
restricting his ability to perform his duties, limiting his career
advancement, and prohibiting activities required by all professional
development courses.

9.  The applicant received treatment for his hip pain in September 1989,
October 1989, and in February 1990.

10.  An 18 January 1990 narrative summary shows that the applicant was
first seen at the orthopedic clinic at the 97th General Hospital in January
1987 because of a painful right hip and for being unable to run or stand
for a long period of time, and that his condition was getting progressively
worse.  He had been seen since that time on frequent occasions for
evaluation and treatment, and according to the applicant his hip pain
started after a soccer game, when another player struck against his right
hip.  The examining physician stated that the applicant's range of motion
of the right hip was limited in all directions and that all the motions of
the hip were painful.  The pain was constant, even if the applicant was not
weight bearing to the lower extremity.  X-ray data showed degenerative
changes, with narrowing of the joint space, subchondral sclerosis, and
marginal osteophytic formation.  The doctor diagnosed the applicant's
condition as chronic right hip pain, secondary to advanced osteoarthritis.
The doctor stated that the applicant could not pass the physical training
test, was unable to run or lift heavy material, or stand for long periods
of time.  He could only do push-ups and sit-ups.  He   was unfit for duty.
A Medical Evaluation Board (MEB) recommended that he be referred to a
Physical Evaluation Board (PEB) because of his condition.  The applicant
concurred.
11.  On 2 February 1990 a PEB recommended that the applicant be separated
with severance pay because of his degenerative joint disease, right hip,
flexion 120 degrees, external rotation 30 degrees; internal rotation 10
degrees, with quadriceps atrophy; with x-ray changes; rated as occasional
incapacitating exacerbations; VASRD (Department of Veterans Affairs
Schedule of Rating Disabilities) code 5003; and that he receive a 20
percent disability rating.  Initially, the applicant nonconcurred and
demanded a formal hearing with an appointed military counsel; however, he
changed his mind, and on 16 March 1990 accepted the findings of the PEB and
withdrew his request for a formal hearing.  The findings and
recommendations of the PEB were approved on       19 March 1990.

12.  On 27 April 1990 orders were published discharging the applicant from
the Army under the provisions of Army Regulations 635-40 and 635-200 with a
       20 percent disability rating.  He was discharged on 8 May 1990.  The
reason for his discharge as shown on his DD Form 214 is medical.

13.  In a 2 February 1998 rating decision the VA awarded the applicant an
     80 percent service connected disability rating of osteoarthritis right
hip with hip contracture, effective 9 May 1990, an increase from the
previously awarded       30 percent disability rating; and a 60 percent
rating of osteoarthjritis left hip, effective 9 May 1990, an increase from
the previously awarded 10 percent rating.

14.  Army Regulation 635-40 establishes the Army physical disability
evaluation system and sets forth policies, responsibilities, and procedures
that apply in determining whether a Soldier is unfit because of physical
disability to reasonably perform the duties of his office, grade, rank, or
rating.  It provides for medical evaluation boards, which are convened to
document a Soldier’s medical status and duty limitations insofar as duty is
affected by the Soldier’s status.  A decision is made as to the Soldier’s
medical qualifications for retention based on the criteria in AR 40-501,
chapter 3.  If the MEB determines the Soldier does not meet retention
standards, the board will recommend referral of the Soldier to a PEB.

15.  Physical evaluation boards are established to evaluate all cases of
physical disability equitability for the Soldier and the Army.  It is a
fact finding board to investigate the nature, cause, degree of severity,
and probable permanency of the disability of Soldiers who are referred to
the board; to evaluate the physical condition of the Soldier against the
physical requirements of the Soldier’s particular office, grade, rank or
rating; to provide a full and fair hearing for the Soldier; and to make
findings and recommendation to establish eligibility of a Soldier to be
separated or retired because of physical disability.

16.  Congress established the VA Schedule for Rating Disabilities (VASRD)
as the standard under which percentage rating decisions are to be made for
disabled military personnel.  Percentage ratings in the VASRD represent the
average loss in earning capacity resulting from diseases and injuries.  The
ratings also represent the residual effects of these health impairments on
civil occupations.

17.  Part 4, paragraph 4.1 of the VASRD states that the rating schedule is
primarily a guide in the evaluation of disability resulting from all types
of diseases and injuries encountered as a result of or incident to military
service.  The percentage ratings represent as far as can practicably be
determined the average impairment in earning capacity resulting from such
disease and injuries and their residual conditions in civil occupations.

18.  The VASRD provides that degenerative arthritis hypertrophic or
osteoarthritis (code 5003) established by x-ray findings will be rated on
the basis of limitation of motion under the appropriate diagnostic codes
for the specific joint or joints involved.  When however, the limitation of
motion of the specific joint or joints involved is noncompensable under the
appropriate diagnostic codes, a rating of 10 percent is for application for
each such major joint or group of minor joints affected by limitation of
motion.  Limitation of motion must be objectively confirmed by findings
such as swelling, muscle spasm, or satisfactory evidence of painful motion.
 A 20 percent rating is appropriate with x-ray evidence of involvement of
two or more major joints or two or more minor joint groups with occasional
incapacitating exacerbations.

16.  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.

17.  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.

18.  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 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.  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 normally be compensated only once for a disability.  If
a veteran is receiving a VA disability pension and the ABCMR 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.

DISCUSSION AND CONCLUSIONS:

1.  The determination made by the February 1990 PEB that he was unfit for
further service, and that he should be discharged with a 20 percent
disability rating is correct.  The applicant himself concurred with that
determination.  His disability was properly rated in accordance with the VA
Schedule for Rating Disabilities.  His separation with severance pay was in
compliance with law and regulation.

2.  The copy of the VA rating decision that the applicant submits with his
request is noted; however, that rating action does not necessarily
demonstrate any error or injustice in the Army rating.  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 rating.

3.  The VA 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.
Furthermore, the VA can evaluate a veteran throughout his lifetime,
adjusting the percentage of disability based upon that agency's
examinations and findings.

4.  The applicant's contentions do not demonstrate error or injustice in
the disability rating assigned by the Army, nor error or injustice in the
disposition of his case by his separation from the service.
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 8 May 1990; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on           7 May 1993.  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

___WM__  ___EA __  __BE   __  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.




            ____Walter Morrison_____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004100773                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040722                                |
|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.                      |                                        |


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