RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        16 DECEMBER 2004
      DOCKET NUMBER:  AR2004106003


      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. Deborah L. Brantley           |     |Senior Analyst       |

      The following members, a quorum, were present:

|     |Ms. Yolanda Maldonado             |     |Chairperson          |
|     |Ms. Maribeth Love                 |     |Member               |
|     |Mr. Ronald Weaver                 |     |Member               |

      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 his records be corrected to show that he
was retired by reason of physical disability rather than separated by
reason of disability with entitlement to disability severance pay.

2.  The applicant states that at the time of his disability processing he
was “neither afforded nor informed” that he had a right to counsel.  He
states that had he been advised that he could fight to be medically retired
he would have done so. He states that the papers were simply put in front
of him and he was told to sign them and accept the severance pay or he
might be assigned to some “menial task….”

3.  The applicant provides no evidence in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 6 May 1997.  The application submitted in this case is
dated
15 March 2004.

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.  Records available to the Board indicate that the applicant enlisted in
the Regular Army and entered active duty on 31 August 1990.  He was trained
as an aircraft powertrain repairer and served in Southwest Asia following
the Gulf War, at Fort Campbell, Kentucky and in Hawaii.  In August 1995 he
was assigned to an aviation unit in Georgia.  On 23 May 1996 he executed a
2-year reenlistment contract.

4.  In January 1997 the applicant underwent a Medical Evaluation Board
(MEB).  His chief complaint was recorded as persistent left shoulder pain,
status post multiple stability operations.  His shoulder pain stemmed from
a fall where he sustained an anterior dislocation of the left shoulder.
The date of the fall was not recorded in his physical examination document,
but the medical summary does note that he underwent extensive physical
therapy and that in September 1994 he underwent an examination “under
anesthesia, arthroscopy, and arthroscopic stabilization of the left
shoulder.”  The MEB evaluation noted that the applicant was not taking any
medications, but that he continued to experience anterior skin numbness of
the shoulder, which interfered with his ability to perform his job as an
aircraft powertrain repairer.  The evaluating physician stated that he
suspected that the applicant’s “left shoulder, although stable, will
continue to have a fair amount of achy type pain” and recommended referral
to a Physical Evaluation Board (PEB).

5.  The applicant concurred with the findings and recommendation of the
MEB.

6.  An informal PEB convened on 14 February 1997 and concluded that the
applicant’s left shoulder pain and profile restrictions precluded his
performance of the duties of his grade and specialty.  They determined that
his left shoulder pain warranted a 10 percent disability rating utilizing
VASRD (Veterans Administration Schedule for Rating Disabilities) codes 5299
5003, and recommended separation with severance pay.

7.  On 25 February 1997 the applicant was informed by the Alternate PEBLO
(Physical Evaluation Board Liaison Officer) of “the findings and
recommendation of the Physical Evaluation Board” and advised of his “legal
rights” before making his election to concur with the results of the PEB
and waive his right to a formal hearing.  Both the applicant and the
Alternate PEBLO authenticated the election/counseling document.

8.  The findings and recommendation of the PEB were approved and on 5 May
1997 the applicant was honorably discharged by reason of physical
disability and received more than $19,000 in disability severance pay.

9.  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.

10.  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.

11.  The VASRD is primarily used as a guide for evaluating disabilities
resulting from all types of diseases and injuries encountered as a result
of, or incident to, military service.  Because of differences between Army
and VA applications of rating policies, differences in ratings may result.
Unlike the VA, the Army must first determine whether or not a soldier is
fit to reasonably perform the duties of his office, grade, rank, or rating.
 Once a soldier is determined to be physically unfit for further military
service, percentage ratings are applied to the unfitting conditions from
the VASRD.  Conditions that do not render a soldier unfit for military
service will not be considered in determining the compensable disability
rating unless they contribute to the finding of unfitness.  When an
unlisted condition is encountered, it is rated under a closely related
disease or injury in which not only the functional, but also the anatomical
localization and symptomatology are closely analogous.  When an unlisted
disease, injury, or residual condition is encountered, requiring rating by
analogy, the diagnostic code number will be “built-up” using the first two
digits from the part of the scheduled most closely identifying the part, or
system, of the body involved.  The last two digits will be “99” for all
unlisted conditions.

12.  Army Regulation 635-40 states that often a soldier may be found unfit
for any variety of diagnosed conditions, which are rated essentially for
pain.  Inasmuch as there are no objective medical laboratory testing
procedures used to detect the existence of or measure the intensity of
subjective complaints of pain, a disability retirement cannot be awarded
solely on the basis of pain.

DISCUSSION AND CONCLUSIONS:

1.  Throughout the applicant’s disability processing, his chief complaint
was shoulder pain.  As such, the PEB was precluded from rendering a rating
high enough to warrant disability retirement.

2.  The applicant has not presented any new evidence, which was not
available to the PEB at the time, which refutes the fact that his primary
impairment stemmed from his chronic shoulder pain.

3.  The applicant’s contention that his PEB was flawed because he was not
afforded the right to counsel is without foundation.  The PEB documents
confirm that he was advised of his rights by the Alternate PEBLO prior to
electing to waive his entitlement to a formal hearing and concurring with
the findings and recommendations of the informal PEB.

4.  In order to justify correction of a military record the applicant must
show, or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy that requirement.


5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 6 May 1997; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 5 May 2000.  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 FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___YM __  ___ML __  ___RW__  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.




                                  ____Yolanda Maldonado_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR2004106003                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20041216                                |
|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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