RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           23 February 2005
      DOCKET NUMBER:  AR20040003270


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Hubert O. Fry                 |     |Chairperson          |
|     |Ms. Marla J. Troup                |     |Member               |
|     |Mr. Peter B. Fisher               |     |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 item 28 (Narrative Reason for Separation)
on her DD Form 214 (Certificate of Release or Discharge from Active Duty)
be corrected to show her disability did not exist prior to service (EPTS).

2.  The applicant states that she had no injuries prior to her enlistment.
The Department of Veterans Affairs (VA) granted her service connection for
her knees.  She has been unable to apply for tuition reimbursement through
her state and has not been allowed to apply for home loan benefits because
of her military status.  It has taken her this long to take action because
she had been pursuing her college education, and now that she is finished
she has more time to follow through.

3.  The applicant provides her DD Form 214; a letter dated 16 July 1999
from the State of Wisconsin, Department of Veterans Affairs; and a VA
Rating Decision.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 9 April 1998.  The application submitted in this case is
dated 10 May 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.  The applicant enlisted in the Regular Army on 30 September 1997.

4.  A Medical Evaluation Board (MEB) Narrative Summary dated 3 March 1998
stated that the applicant began complaining of bilateral knee pain with
exercise shortly after her entry on active duty.  She complained of
bilateral knee pain with running and reported that both knees occasionally
locked when in a straight position.  She denied any history of trauma.  She
was diagnosed with peripatellar pain syndrome, unresponsive to repeated
treatment, EPTS.

5.  A DA Form 3947 (Medical Evaluation Board Proceedings) dated 29 April
1998 (but most likely prepared 29 March 1998) showed that an MEB
recommended the applicant be discharged under the provisions of Army
Regulation 635-40, chapter 5 for an EPTS medical condition.  On 1 April
1998, the applicant agreed with the board's findings and recommendation.

6.  By memorandum dated 3 March 1998 (but possibly prepared on 3 April
1998), the applicant requested discharge for physical disability based upon
the findings and recommendation of an MEB which considered her unqualified
for retention in the military due to physical disability that was found to
be EPTS, neither incident to nor aggravated by her military service.  The
applicant indicated that she had been fully informed and understood that
she was entitled to the same consideration and processing as any other
member separated for physical disability.  She understood that included
consideration of her case by a Physical Evaluation Board.  However, she
elected not to exercise that right.  She also understood that the VA would
determine any entitlement to VA benefits.  She understood that she would be
separated by reason of an EPTS physical disability if her application were
approved.

7.  On 9 April 1998, the applicant was discharged under the provisions of
Army Regulation 635-40, chapter 5, for an EPTS disability.

8.  On 29 June 1998, the VA awarded the applicant a combined 20 percent
disability rating for a left knee condition (10 percent) and a right knee
condition (10 percent).  The 10 percent evaluations were granted for knee
crepitus and tenderness and service connection for the conditions was
established as directly related to military service.

9.  Army Regulation 635-40 governs the evaluation for physical fitness of
Soldiers who may be unfit to perform their military duties because of
physical disability.  Chapter 5 provides for the separation of an enlisted
Soldier for non-service aggravated EPTS conditions when the Soldier
requests waiver of PEB evaluation.  The Soldier must be eligible for
referral into the disability system, must not meet medical retention
standards as determined by the MEB, the disqualifying defect or condition
must have existed prior to entry on the current period of duty and not been
aggravated by such duty; the Soldier is mentally competent and knowledge of
information about his medical condition would not be harmful to his well-
being; and further hospitalization is not required.  After being advised of
the right to a full and fair hearing, the Soldier must still desire to
waive PEB action and he must be advised that a PEB evaluation is required
for receipt of Army disability benefits but waiver of the PEB would not
prevent applying for VA benefits.

10.  Army Regulation 635-40, in pertinent part, states that according to
accepted medical principles, certain abnormalities and residual conditions
exist that, when discovered, lead to the conclusion that they must have
existed or have started before the individual entered the military service.
 Examples are congenital malformations and hereditary conditions or similar
conditions in which medical authorities are in such consistent and
universal agreement as to their cause and time of origin that no additional
confirmation is needed to support the conclusion that they existed prior to
military service.  Likewise, manifestation of lesions or symptoms of
chronic disease from date of entry on active military service (or so close
to that date of entry that the disease could not have started in so short a
period) will be accepted as proof that the disease existed prior to
entrance into active military service.

11.  Title 38, U. S. 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.

DISCUSSION AND CONCLUSIONS:

1.  The rating action by the VA does not necessarily demonstrate an error
or injustice on the part of the Army.  The VA, operating under its own
policies and regulations, determines service connection and assigns
disability ratings as it sees fit.

2.  The Board understands the applicant's contention that she had not had
pain in her knees prior to her enlistment.  However, the Board presumes
there was some agreement between her and the MEB that she had some
underlying condition (such as a mild form of arthritis, noting the crepitus
the VA discovered) that manifested itself with knee pain when performing
the strenuous exercise required by the Army.

3.  The applicant did not contest the MEB's findings that her medical
condition was EPTS.  She understood her rights included consideration of
her case by a Physical Evaluation Board that might have found her condition
was not EPTS.  However, she elected not to exercise that right.  She
understood that she would be separated by reason of an EPTS physical
disability.  Therefore, there appears to be no error in the narrative
reason for her separation as shown on her DD Form 214.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 9 April 1998; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 8 April 2001.  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

__hof___  __mjt___  __pbf___  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.




            ___Hubert O. Fry______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040003270                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050223                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |108.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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