RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          4 August 2005
      DOCKET NUMBER:  AR20040006450


      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. Edmund P. Mercanti            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James E. Anderholm            |     |Chairperson          |
|     |Mr. Richard T. Dunbar             |     |Member               |
|     |Ms. LaVerne M. Douglas            |     |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 placed on the Retired List for physical unfitness in the rank of
lieutenant colonel.  In a subsequent request, the applicant also requests
that his placement on the Retired List for physical unfitness be classified
as a “combat disability retirement.”

2.  The applicant states that he participated in many combat operations.
Of these operations, hundreds were combat assault jumps made out of moving
helicopters.  He was awarded two Bronze Star Medals for Valor and two
Bronze Star Medals for Meritorious Service for his actions in combat.

3.  On one combat assault jump, he severely injured his knee and back.  He
was in severe pain for a year from those injuries, and then had sporadic
knee pain from 1967 to 1976.  By 1976 he could no longer jog because of his
knee pain.  He was diagnosed as having chondromalacia and early
osteoarthrosis at that time.  In late 1978, he was also diagnosed with
cervical disc disease which required 6 months of traction.  He was later
diagnosed with degenerative joint disease (DJD) and his knee required
surgery.

4.  He was promoted to lieutenant colonel on 1 January 1983.  That year he
was given physical profiles due to severe DJD.  In April 1984, he was
assigned to a light infantry division, which incurred another year of
service obligation ending 3 April 1985.  This unit emphasized moving by
foot instead of vehicle.  When a physician prohibited him from taking the
Army Physical Fitness Test, running, riding in a jeep, wearing a helmet or
going to the field, it became difficult for him to perform his duties.
However, he continued to attempt to do these things since they were
required by his position.

5.  On 15 November 1984, he requested retirement for years of service in
the grade of lieutenant colonel, with a waiver of the 1-year Permanent
Change of Station (PCS) requirement.  He submitted this request because his
command informed him that he could not perform his duties with his physical
profiles.  His command favorably endorsed his request, pointing out that he
could not perform his duties within the command because of his two
permanent physical profiles.

6.  When he was informed that he did not have the 3-years time in grade
(TIG) to be retired as a lieutenant colonel, he requested a waiver of that
requirement along with the PCS requirement.  His request for a waiver for
the PCS requirement was granted, but his request for a waiver of the TIG
requirement to retire as a lieutenant colonel was disapproved.
7.  On 19 December 1984, the same day his request to retire as a lieutenant
colonel was disapproved and his request for a waiver of the PCS requirement
to retire was approved, a physician determined that he was medically
disqualified for retention and recommended that he be referred to a Medical
Evaluation Board (MEB).  The physician stated that there was an “advanced
degree of change” of his medical condition.

8.  A Physical Profile Board then assigned him two permanent “4” physical
profile designators and indicated that he was pending an MEB.  He was
specifically prohibited from wearing a helmet, running, marching on uneven
surfaces, doing deep knee bends, and riding in tactical vehicles.

9.  On 8 February 1985, he was given a physical examination which was
supposed to be a Physical Examination Board physical.  However, the words
“Physical Examination Board” are crossed out and the word “Retirement” was
hand-written in the block which is used to designate the reason for the
examination.  He was determined medically disqualified for retention at
that time.

10.  The applicant contends that he was never counseled on the Disability
Evaluation System (DES) nor did he ever waive his right to present his case
to a Physical Evaluation Board (PEB).  His commander even believed that he
was being processed under the DES when he was pending retirement.  He
points out that the Department of Veterans Affairs (VA) awarded him a 20
percent disability for degenerative arthritis of his knee when he was
retired and found his other disabilities to be service connected.  Since
his retirement, the VA has increased his disability rating to 90 percent.
He has undergone bilateral knee replacements, significant spinal surgeries
and is scheduled to undergo bilateral hip replacements, all of which have
been determined by the VA to be service related.

11.  The applicant cites laws, regulations and legal precedents in support
of his request.  He then concludes that since his condition worsened just
before his voluntary retirement, which resulted in him being determined
medically disqualified, and since he was unable to perform his duties in a
light infantry division, he was entitled by law and regulation to be
processed under the DES and placed on the Retired List in the rank of
lieutenant colonel by reason of physical unfitness.

12.  The applicant adds that his commander stated that he was no longer fit
to perform with his unit, and the assistant adjutant general also
recognized that he was unable to meet the physical standards for duty with
his unit.  At that point he had no choice but to retire early knowing that
if he could serve only ten more months, he could retire with the higher
pension of a lieutenant colonel.  Instead, he was forced to leave before he
had enough time in grade as a lieutenant colonel which resulted in his
receiving retired pay as a major.

13.  The applicant contends that if just one person had given him correct
advice, his retirement would have been properly processed from the start
and his retired pay would have been hundreds of thousands of dollars more
over the course of an over 30-year retirement.

14.  The applicant provides a 10-page self-authored statement; excerpts
from his military personnel and medical records; his Combat Related Special
Compensation (CRSC) approval for 90 percent combat related disability
compensation; a 1 February 2001 denial by the Board on a request that he be
retired in the rank of lieutenant colonel based on administrative error; a
letter from his former commander who states that the applicant was forced
to retire for disability and should have been considered under the DES; VA
rating decisions; and civilian medical records.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant’s separation documents be corrected
to show that the applicant was retired by reason of physical disability in
the rank of lieutenant colonel.

2.  Counsel states that the preponderance of evidence shows that at the
time of the applicant’s retirement in 1985, he was not medically qualified
for retention and he was unfit to perform his duties in the light infantry
division to which he was assigned.  Notwithstanding, his case was never
submitted to a Physical Evaluation Board for review.

3.  Counsel does not submit any additional documents with her brief.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 28 February 1985.  The application submitted in this case was
received by the Board’s staff on 3 August 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’s military records show that he was inducted and entered
active duty on 4 February 1965.  He attended Officer Candidate School and
was commissioned as a second lieutenant, Field Artillery, on 29 March 1966.


4.  He served in Vietnam from 6 January to 22 December 1967.

5.  The medical records provided by the applicant show that he was first
treated for knee pain on 3 February 1976.  At that time the applicant
stated that he had been having difficulty with his left knee for a year.
He said that he did not remember any specific injury, but believed that he
twisted his knee on several occasions playing basketball.  At that time he
was diagnosed as having chondromalacia of his patella, and early
osteoarthrosis of his left knee.

6.  The next record of medical treatment for his knee was on 15 December
1978.  At that time the applicant reported that his knees had swelled off
and on for 3 years.  The applicant again reported that he never injured his
knee.

7.  On 18 December 1978, the applicant was treated for decreased range of
motion in his left shoulder.  He was diagnosed as having a muscle spasm.
On 19 and 20 December 1978, he was treated for a back spasm and left
shoulder pain.

8.  On 21 December 1978, the applicant reported pain in his left shoulder
blade with shooting pain down his left arm; numbness in his fingertips with
progression to numbness in entire left hand; decreased strength in his left
arm/forearm/hand; and decreased coordination of his left hand which
resulted in his difficulty in buttoning his shirt.  He was diagnosed as
having cervical radiculopathy of the C5-6, C6-7, and C7-8 discs.

9.  Radiographic imaging taken following this examination revealed a mild
dextroscoliosis of the thoracic spine; disc space narrowing at the C5-6
level with moderate osteophytosis; and mild osteophytosis at C4-5 and C6-7
levels.  The overall impression was DJD of the C5-6.

10.  On 2 January 1979, the applicant reported less pain and was directed
to continue physical training.

11.  On 18 January 1979, the applicant was diagnosed with DJD.
12.  In July 1980, an imaging test showed that the applicant had torn
cartilages in his knee.

13.  On 19 February 1981, the applicant was given a periodic physical
examination.  In that examination the applicant’s DJD and left knee
arthritis and torn cartilage were noted.  However, the applicant was
determined medically qualified without profile limitations because both
conditions had improved.

14.  On 14 April 1981, the applicant was given a physical profile excusing
him from performing physical training.

15.  22 April 1982, the applicant underwent arthroscopy and arthrotomy with
osteophytectomy of his knee.

16.  The applicant continued to receive treatment for his knees and back.
On 29 November 1983, the applicant was given x-rays and an examination for
his knees.  He was diagnosed with “severe DJD both knees and C-spine.”  On
26 September 1984, the applicant was again diagnosed with DJD and given a
profile prohibiting taking the APFT, wearing of a helmet, and riding in
tactical vehicles.

17.  On 19 December 1984, the applicant was seen by a physician who stated
that the applicant “is unfit for further duty, will do MEB.”

18.  On 22 January 1985, the applicant was given two “4” physical profile
designators.  He was prohibited from wearing a helmet, running, marching on
uneven surfaces, deep knee bends, and riding in a tactical vehicle.

19.  On 8 February 1985, the applicant was given a retirement physical
examination.  In that examination the applicant reported that he had pain
in his left knee and the knee would lock or give way; he had pain in his
neck; and he had numbness in his right hand with occasional shooting pain
in both arms.  He stated that otherwise he felt alright.  The applicant was
determined medically disqualified for retention.  In the Report of Medical
Examination, Item 5, Purpose of Examination, has “Physical Evaluation
Board” lined through and “Retirement” entered.  This substitution was
accomplished by what appears to be a magic marker, as opposed to what
appears to be a fine-tipped pen for the majority of the entries.  The only
other entries made in magic marker was Item 16, Other Information, and Item
73, Notes.  The entries in Item 73, Notes, appear to have been made by the
applicant since it included the statement “Otherwise I feel OK.”

20.  The applicant’s final four Officer Evaluation Reports (OERs) show the
following:

      a.  for the period ending 15 June 1983, he was a lieutenant colonel
serving as the operations and force development officer with Headquarters,
Pacific Command.  In that report his rater stated that the applicant “is
the best officer of his grade and experience I have ever observed . . . he
is the best leader I know . . . he has provided invaluable coordination,
advice and counsel . . . he is ready to command an artillery brigade now.
[The applicant] has the potential to serve the Army as a general officer.”

      b.  for the period ending 31 March 1984, he was serving in the same
duty position.  In that report the applicant’s rater stated that the
applicant “excels across the board.  As a result of a knee injury and a
subsequent operation [the applicant] has not taken the PT test.  He is
rehabilitating and maintaining physical fitness by walking three miles and
swimming one half a mile daily.  Without doubt, he is physically capable of
commanding a field artillery battalion . . . [the applicant] is the most
truly outstanding Army officer of his grade and experience I have ever
observed . . . clearly demonstrated general officer potential.”  The
applicant’s senior rater stated that the applicant “is one of the very best
officers in the Directorate.”

      c.  for the period ending 26 September 1984, he was assigned as an
infantry division operations and training officer (S-3).  In that report
his rater stated that “Profile does not hinder performance . . . merits the
strongest possible consideration for battalion command.”  His senior rater
stated that the applicant had “Great potential.  Should command a battalion
soonest.”

      d.  For the period ending 28 February 1985, he was serving in the
same duty position.  In that report the applicant’s rater stated that he
rated the applicant “as one of the Army’s very best trainers . . . is one
of the finest Army officers I have known.  Were he not retiring because of
physical disability he would be in line for battalion command . . .”  His
senior rater stated that the applicant “has been one of the spark plugs in
the Division . . . [he] has produced results – better battalions and a
better DIVARTY . . . If he is recalled to active duty I would be completely
confident putting him in as a battalion commander.”

21.  In an undated letter (which the applicant states was submitted on
15 November 1984), the applicant requested to retire for years of service.
In the last paragraph of that request, the applicant stated that: “This
application is submitted in lieu of complying with PCS instructions.”  The
applicant’s command recommended approval, commenting that although the
applicant did not complete his 1-year PCS service requirement, he was
unable to meet the physical standards for duty with a light infantry
division since he had two “3” profiles.

22.  In another undated letter the applicant requested that he be retired
as a lieutenant colonel since he had not served the 3 years time in grade
required to retire at that rank.  He stated that his medical conditions had
worsened in the preceding year and a half and, because of that
deterioration, he was no longer deployable.  He stated that it would not be
in the Army’s best interest to reassign him to a garrison or administrative
position to complete his TIG requirement to retire as a lieutenant colonel.
 However, the applicant stated that if his request for waiver was not
approved, he requested retirement as a major.

23.  On 11 December 1984, the Officer Personnel Management Directorate
Special Review Board approved the applicant’s request for a waiver of the
PCS requirement to retire, but denied his request to retire as a lieutenant
colonel.

24.  On 28 February 1985, the applicant was honorably released from active
duty as a lieutenant colonel and placed on the Retired List the following
day as a major.

25.  Army Regulation 635-40, then in effect, provided that the medical
treatment facility commander with the primary care responsibility will
evaluate those referred to him and will, if it appears as though the member
is not medically qualified to perform duty or fails to meet retention
criteria, refer the member to a MEB.  Those members who do not meet medical
retention standards will be referred to a physical evaluation board (PEB)
for a determination of whether they are able to perform the duties of their
grade and military specialty with the medically disqualifying condition.

26.  Army Regulation 635-40, paragraph 2-1, then in effect, stated that the
mere presence of an impairment does not, of itself, justify a finding of
unfitness because of physical disability.  The overall effect of all
disabilities present in an individual whose physical fitness is under
evaluation must be considered both from the standpoint of how the
disabilities affect the individual’s performance, and requirements which
may be imposed on the Army to maintain and protect him during future duty
assignments.  All relevant evidence must be considered in evaluating the
fitness of a member.  When a member is referred for physical evaluation,
evaluations of his performance of duty by his supervisors may provide
better evidence than a clinical estimate by a physician of the member’s
physical ability to perform the duties of his office, grade, rank, or
rating until the time he was referred for physical evaluation.  Thus, if
evidence establishes that the member adequately performed the normal duties
of his office, grade, rank or rating until the time he was referred for
physical evaluation, he might be considered fit for duty, even though
medical evidence indicates his physical ability to perform such duties may
be questionable.

27.  Army Regulation 635-40, paragraph 2-2, Presumptions, then in effect,
stated that when a member is being processed for separation for reasons
other than physical disability (e.g., retirement, resignation, reduction in
force, relief from active duty, administrative separation, discharge,
etc.), his continued performance of duty (until he is referred to the
physical disability system for evaluation for separation) creates a
presumption that the member is fit for duty.  Such a member should not be
referred to a PEB unless his physical defects raise substantial doubt that
he is fit to continue to perform the duties of his office, grade, rank or
rating.

28.  Army Regulation 635-40, paragraph 2-2, continued by stating that the
presumption of fitness may be overcome if the evidence established that:

      a.  the Soldier, in fact, was physically unable to adequately perform
the duties of his office, grade, rank or rating even though he was
improperly retained in that office, grade, rank or rating for a period of
time; or

      b.  acute, grave illness or injury or other deterioration of physical
condition, that occurred immediately prior to or coincidentally with the
Soldier’s separation for reasons other than physical disability, rendered
him unfit for further duty.

29.  Title 38, United States Code, permits the VA to award compensation for
disabilities which were incurred in or aggravated by active military
service.  However, an award of a VA rating does not establish error or
injustice in the Army not separating the individual for physical unfitness.
 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.  

30.  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 employability.
Accordingly, it is not unusual for the VA to award a veteran a disability
rating when the veteran was not separated due to physical unfitness.
Furthermore, the VA can evaluate a veteran throughout his or her lifetime,
awarding and/or adjusting the percentage of disability of a condition based
upon that agency’s examinations and findings.
31.  Title 10, United States Code, Section 1370, provides for the retired
grade of commissioned officers.  This section states that officers above
the rank of major but below lieutenant general may be voluntarily retired
in a grade in which they served satisfactorily for at least 3 years.

DISCUSSION AND CONCLUSIONS:

1.  Counsel contends that the applicant was medically disqualified and
should have been referred to a PEB.  Counsel also argues that a PEB would
have determined that the applicant was physically unfit which would have
resulted in his retirement for physical unfitness.

2.  The applicant requested to be retired for years of service on
15 November 1984.  His request was approved on 11 December 1984 by the
Officer Personnel Management Directorate Special Review Board.  The later
date, 11 December 1984, established the presumptive period for determining
physical fitness in the applicant’s case.

3.  While the applicant was treated for numerous medical problems for years
prior to his retirement, the first time he was determined medically
disqualified was on 19 December 1984, 8 days after his retirement was
approved.

4.  Prior to 11 December 1984, the applicant’s OERs clearly show that he
performed his duties with distinction.  In addition, the applicant himself
admitted in his request to retire as a lieutenant colonel that he could be
reassigned to a garrison or administrative position to complete his time in
grade requirement to retire as a lieutenant colonel.

5.  While the physician who stated that the applicant should be considered
by an MEB opined that the applicant was medically disqualified on
19 December 1984, there was no indication that any of his medical
conditions had worsened at that time.  On 14 April 1981, the applicant was
given a physical profile excusing him from performing physical training.
On 22 April 1982, the applicant underwent arthroscopy and arthrotomy with
osteophytectomy of his knee.  On 29 November 1983, the applicant was
diagnosed with “severe DJD both knees and C-spine.”  On 26 September 1984,
the applicant was again diagnosed with DJD and given a profile prohibiting
taking the APFT, wearing of a helmet, and riding in tactical vehicles.
There is no evidence or indication of an acute, grave illness or injury or
other deterioration of physical condition, such as a massive heart attack,
a stroke, or a diagnosis of advanced stage cancer, that occurred
immediately prior to or coincidentally with the applicant’s scheduled
retirement.

6.  Since the applicant was not determined medically disqualified until
after his retirement was approved, and there is no evidence that he
experienced an acute, grave illness or injury or other deterioration of
physical condition, he did not meet the criteria for either of the two
exceptions provided by AR 635-40 to be separated for physical unfitness.
As such, there was no requirement to counsel him on the DES.

7.  While the applicant states that he was forced to retire, there is no
evidence to support that contention other than the statement by his former
commander.  However, the same officer who wrote this statement stated on
the applicant’s last OER prior to his retirement that the applicant was
“one of the Army’s very best trainers . . . is one of the finest Army
officers I have known.  Were he not retiring because of physical disability
he would be in line for battalion command . . .”

8.  Since there is no basis for granting the applicant’s request to correct
his records to show that he was placed on the Retired List for physical
unfitness, there is no need to consider his request to have his disability
retirement classified as combat incurred.  However, it is noted that the
applicant stated that he injured himself playing basketball well after the
Vietnam War ended.

9.  The fact that the applicant was awarded a 20 percent disability rating
by the VA when he was retired does not indicate that the action taken by
the Army was in error or unjust.  The Army compensates a Soldier for
conditions which cause the termination of a military career.  The VA
compensates a veteran for any service related condition which impairs the
veteran’s industrial abilities.

10.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 28 February 1985; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 27 February 1988.  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

___jea __  ____rtd__  ____lmd _  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.




            ___James E. Anderholm__________
                    CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040006450                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050804                                |
|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.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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