RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        28 JUNE 2005
      DOCKET NUMBER:  AR20040007337


      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:

|     |Mr. Joe Schroeder                 |     |Chairperson          |
|     |Mr. Lawrence Foster               |     |Member               |
|     |Ms. Jeanette McCants              |     |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 from active duty in 1992 by reason of physical disability.

2.  The applicant states that he injured his right knee while performing
duties at Fort Campbell, Kentucky “to the point where the kneecap
dislocates at will.”  He states that he was under a doctor’s care when he
was reassigned to Korea and that while in Korea he “reinjured” the knee.

3.  He states that when he was transferred back to Fort Campbell he was
again under a doctor’s care, and so informed his unit commander and first
sergeant.  He states he told them he was concerned that he “would not be
able to meet the high caliper expected of an infantry soldier.”  However,
he states that he was forced to participate in a unit run and that during
the run his kneecap dislocated and he was taken to the emergency room.

4.  The applicant notes that in spite of his knee problem he was required
to participate in field training and as a result hurt his knee even further
when he fell into a foxhole.  He states that after returning from field
training he was placed on light duty and assigned to the battalion gym.  He
states that during this time he had several medical appointments and was
told by his doctor that his knee condition was getting worse and he should
retire.  However, when he failed to hear from his doctor after several
months he finally made contact with the doctor approximately 2 months prior
to his separation date.  At that point, he notes, the doctor told him he
had been ordered not to recommend anyone for benefits and that he was also
unable to provide the applicant with a letter which might permit him to
reenlist.

5.  The applicant states that his physician also told him that a prior nose
and sinus problem was also getting worse and that he (the doctor) doubted
he would be able to perform his duties.  He states that he tried to get
another position but was denied by his chain of command.

6.  The applicant states that he wanted to stay in the Army “because of
[his] love for it and the satisfaction of performing [his] duties for [his]
country” but was “forced to ETS [expiration term of service] against [his]
will without any benefits.  He notes that he is now “classified as a
disabled veteran, total combined percentage is at 80%, paid at 70%.”

7.  The applicant provides three documents from his service medical
records.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 1 November 1992.  The application submitted in this case
is dated
21 February 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 limitations 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 served an
initial period of active duty between January 1976 and December 1978.  He
was separated in pay grade E-4 and his service was characterized as
honorable.

4.  On 10 April 1980 the applicant again enlisted in the Regular Army.  As
part of his entrance physical examination, he was referred to an orthopedic
physician who noted that the applicant had undergone surgery on his left
knee in 1975 but had no current complaints.  He was found medically
qualified for enlistment with no limiting physical profile.  The applicant
served honorably until 11 June 1984 when he was administratively discharged
as a result of a personality disorder.  He was discharged in pay grade E-5.

5.  On 1 September 1987 the applicant was permitted to again enlist in the
Regular Army after receiving a waiver for his previous separation action.
He enlisted in pay grade E-3.  He was trained as a chemical operations
specialist (54B) in compliance with his enlistment contract and
subsequently assigned to Fort Campbell.  In February 1990 he was promoted
to pay grade E-5.  He successfully passed an Army Physical Fitness Test
(APFT) in March 1990 and in May 1990 was awarded an Army Achievement Medal.
 In June 1990 he was reassigned to Korea.

6.  While in Korea, the applicant successfully passed the APFT in January
1991 and in July 1991.  He returned to Fort Campbell in September 1991.



7.  Medical documents provided by the applicant indicate that a medical
doctor saw him on 4 December 1991 for a complaint of a “recent” dislocated
right patella.  The medical statement indicated the applicant’s problem
began in 1988 and that he had tried physical therapy but was still having
problems.  The physician indicated that the applicant “will rehab” and if
symptoms continued “realignment” would be considered.

8.  A second medical document provided by the applicant indicates that on
28 April 1992 he reported to medical personnel that his physician had told
him to come in when he was ready for surgery.  The applicant indicated that
he felt he was “now ready for surgery on [his] right knee.”

9.  A May 1992 performance evaluation report indicated that the applicant
was issued a physical profile in November 1991 but that his profile did not
affect his job performance as a NBC NCO (nuclear-biological-chemical
noncommissioned officer).

10.  A 4 August 1992 Statement of Medical Examination and Duty Status form
notes that the applicant sustained a “closed head injury” on 4 August 1992
when he hit his head on an exercise machine while exercising.  The
statement noted that the applicant had been detailed to duties in the gym.
The applicant’s
4 August 1992 automated personnel qualification record indicated no
unfitting physical profile.

11.  The final medical document, provided by the applicant, indicates that
on
3 September 1992 he was seen by a medical doctor who noted the applicant
was being seen as a follow-up for his right knee problem.  The physician
indicated in his notes that “this day better” but that the applicant
continued to be an avid weight lifter-squatter, “despite my request to
avoid….”  The physician indicated the applicant was close to his separation
date and that his knees “as they are” are not “currently unfitting in
present job.”

12.  On 1 November 1992 the applicant was released from active duty, in pay
grade E-5, with an honorable characterization of service.  His separation
code (JBK) indicates that he was involuntarily separated at the conclusion
of his contract because he was ineligible to reenlist.

13.  Army Regulation 601-280, in effect at the time, stated that Soldiers
serving in pay grade E-5 who were not on a promotion list for pay grade E-6
were precluded from serving in the Army beyond 13 years and were not
eligible to reenlist if such a reenlistment would result in a separation
date beyond the
13 year mark.  At the time of the applicant’s separation he had
approximately 12 years and 2 months of active Federal service.

14.  Army Regulation 635-40 states that the mere presence of an impairment
does not, in itself, justify a finding of unfitness because of physical
disability.  In each case, it is necessary to compare the nature and degree
of physical disability present with the requirements of the duties the
Soldier reasonably may be expected to perform.

15.  Army Regulation 635-40 states that when a commander believes that a
Soldier of his or her command is unable to perform duties because of
physical disability, the commander will refer the Soldier to the
responsible medical treatment facility.  It also states that commanders of
medical treatment facilities who are treating Soldiers may also initiate
action to evaluate the Soldier’s physical ability to perform the duties.

16.  While there were no documents confirming the applicant’s Department of
Veterans Affairs disability rating, Title 38, United States Code, sections
1110 and 1131, permit the Department of Veterans Affairs to award
compensation for disabilities which were incurred in or aggravated by
active military service.  However, an award of a Department of Veterans
Affairs rating does not establish error or injustice in the basis for
separation from the Army.  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 Department of
Veterans Affairs, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s argument that his military career was interrupted
because of his medical condition is not supported by the evidence available
to the Board.  Rather, the evidence indicates that the applicant was
involuntarily separated from active duty because he had reached the
retention control point for Soldiers serving in pay grade E-5.

2.  There is no indication that any of the applicant’s medical conditions
ever precluded his performance of his military duties.  In fact, his last
performance evaluation report, which did indicate that the applicant had a
physical profile, noted specifically that the profile did not preclude
performance of his military duties.

3.  The fact that he might be receiving disability compensation from the
Department of Veterans Affairs is not evidence of any error or injustice in
the Army’s basis for his separation; which was reaching his retention
control point.  The Department of Veterans Affairs, operating under its own
policies and regulations, assigns disability ratings as it sees fit.  Any
rating action by that agency does not compel the Army to modify its reason
or authority for separation.

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 1 November 1992; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
31 October 1995.  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

__JS____  __LF  ___  ___JM __  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.




                                  _____ Joe Schroeder________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040007337                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050628                                |
|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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