RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            20 SEPTEMBER 2005
      DOCKET NUMBER:   AR20040010831


      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. Jessie B. Strickland          |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James Hise                    |     |Chairperson          |
|     |Mr. Thomas O’Shaughnessy          |     |Member               |
|     |Mr. Patrick McGann                |     |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 he be retired by reason of physical
disability.

2.  The applicant states that he was diagnosed with Post-Traumatic Stress
Disorder (PTSD) while on active duty and should have been retired instead
of discharged.

3.  The applicant provides no additional documents with his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 7 September 1993.  The application submitted in this case is
dated 30 November 2004 and was received on 8 December 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.  He enlisted in Newark, New Jersey, on 20 September 1982 for a period of
3 years and training as a material storage and handling specialist.  He
completed his basic combat training at Fort Leonard Wood, Missouri and his
advanced individual training (AIT) at Fort Lee, Virginia.  Upon completion
of his AIT he was assigned to Fort Bragg, North Carolina.

4.  He remained on active duty through a series of continuous reenlistments
and served tours in Korea, Germany and in military Operations in Southwest
Asia and Grenada.  He was promoted to the pay grade of E-6 on 1 April 1991.

5.  On 19 January 1993, while stationed at Fort Carson, Colorado, he
underwent a physical examination as a result of his complaint of right knee
pain and popping of 14 months duration.  A review of his medical records
resulted in his being referred to Orthopedic Services and the Division of
Mental Health Services due to his suffering from severe anxiety problems
manifested by panic disorder and PTSD symptoms.  He was diagnosed with
Chondromalacia of the patella, right knee, grade II, by arthroscopic
examination, August 1992; Partial medial meniscus tear, right knee,
February 1991; Status post partial medial meniscectomy, right knee,
secondary to posterior horn complex tear, August 1992; Axis I – DSM-IIIR
300.01 Panic Disorder, without agrophobia, severe, treated and improved,
DSM-IIIR 309.89 PTSD, moderate, treated, partially improved; Axis II –
Histrionic personality traits; Axis III – Pending medical board for right
knee.  He was issued a physical profile for right knee pain, panic disorder
and PTSD and was scheduled for a Medical Evaluation Board (MEB).

6.  The orthopedic consultation prepared for the MEB diagnosed the
applicant as having Chondromalacia patella, right knee, grade II
arthroscopic diagnosis, Status post partial media meniscectomy, right knee,
secondary to post horn complex tear and recommended that he be referred to
a Physical Evaluation Board (PEB).

7.  The mental health consultation diagnosed the applicant as suffering
from a panic disorder without agoraphobia, severe, treated and improved, as
manifested by almost daily panic attacks with shortness of breath,
palpitations, chest pain, trembling, shaking, sweating, fear of going
crazy, with sudden onset and usually resolving within 10 minutes of onset,
PTSD, moderate, treated, partially improved as manifested by intrusive
disturbing recollections of combat, increased startled response,
irritability, intense hostility towards uncaring authority figures,
insomnia, and histrionic personality traits.  The examining official opined
that he suffered from a moderately severe anxiety problem manifested by
PTSD symptoms and recommended that he be referred to a PEB.

8.  On 16 April 1993, a MEB recommended that the applicant be referred to a
PEB.  The applicant agreed with the findings and recommendations of the
MEB.

9.  On 4 May 1993, a PEB was convened at Fort Lewis, Washington and found
that there was insufficient evidence that the physical impairments, either
singularly or in combination, precluded the satisfactory performance of
duty.  The PEB recommended that the applicant be returned to duty as fit.
The applicant did not concur with the findings and recommendations of the
PEB and demanded a personal appearance before a formal hearing of his case
with appointment of counsel to represent him.

10.  Counsel was appointed to the applicant and he appeared before a formal
PEB at Fort Lewis on 25 May 1993.  That board found that the applicant’s
functional limitations in maintaining agility and mobility, cause by his
physical impairments (unstable right knee secondary to extensive medial
meniscus tear and subsequent partial excision of the meniscus, with
moderate pain and effusion following physical activity) made the Soldier
unfit to perform the duties required of his military occupational specialty
and gave him a 10% disability rating.  That board also found that his
diagnoses of panic disorder, PTSD and histrionic personality traits to be
neither unfitting or ratable and gave him no disability rating for those
diagnoses.

11.  The applicant concurred with the findings and recommendations of the
PEB on 26 May 1993 and the proceedings of the PEB were approved by the
appropriate authority on 19 July 1993.

12.  Accordingly, he was honorably discharged by reason of physical
disability with severance pay on 7 September 1993, under the provisions of
Army Regulation 635-40, paragraph 4-24B (3).  He had served 10 years, 11
months and 18 days of total active service and was paid $35,706.00 in
disability severance pay.

13.  A review of the applicant’s noncommissioned officer evaluation reports
shows that he received excellent evaluations throughout his career and
there is no indication that his condition affected his performance.

14.  Army Regulation 635-40, Physical Evaluation for Retention, Retirement,
or Separation, provides that the mere presence of an impairment does not,
of 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 member may
reasonably be expected to perform because of his or her office, rank, grade
or rating.

15.  Title 38, United States Code, sections 310 and 331, permits the VA to
award compensation for a medical condition which was incurred in or
aggravated by active military service.  The VA, however, 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.  Consequently, due to the two concepts involved, an
individual's medical condition, although not considered medically unfitting
for military service at the time of processing for separation, discharge or
retirement, may be sufficient to qualify the individual for VA benefits
based on an evaluation by that agency.



16.  Title 10, United States Code, chapter 61, provides disability
retirement or separation for a member who is physically unfit to perform
the duties of his or her office, rank, grade or rating because of
disability incurred while entitled to basic pay.

17.  There is a difference between the Department of Veterans Affairs (VA)
and the Army disability systems.  The Army’s determination of a Soldier’s
physical fitness or unfitness is a factual finding based upon the
individual’s ability to perform the duties of his or her grade, rank or
rating.  If the Soldier is found to be physically unfit, a disability
rating is awarded by the Army and is permanent in nature.  The Army system
requires that the Soldier only be rated as the condition(s) exist(s) at the
time of the PEB hearing.  The VA may find a Soldier unfit by reason of
service-connected disability and may even initially assign a higher rating.
 The VA’s ratings are based upon an individual’s ability to gain employment
as a civilian and may fluctuate within a period of time depending on the
changes in the disability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s disability was properly rated in accordance with the VA
Schedule for Rating Disabilities (VASRD) and his separation with severance
pay was in compliance with laws and regulations in effect at the time.

2.  While the applicant was found unfit for duty due to his knee injury and
was assigned a disability rating of 10% for that unfitting condition, at
the time of his PEB hearing it was determined that his diagnosis for PTSD
and other related conditions was not of such severity to render him unfit
for duty or to assign a disability rating.

3.  Department of the Army disability decisions are based upon observations
and determinations existing at the time of the PEB hearing.  The Department
of the Army ratings become effective the date that permanency of the
diagnosis is established.

4.  The applicant has not provided sufficient evidence to support his
contention that he was not afforded proper disability processing or that
the evaluation and the rating rendered by the PEB was incorrect



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

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 7 September 1993; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 6 September 1996.  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

____JH__  ____TO _  ___PM __  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 Hise________________
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040010831                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050920                                |
|TYPE OF DISCHARGE       |(HD)                                    |
|DATE OF DISCHARGE       |1993/09/07                              |
|DISCHARGE AUTHORITY     |AR635-40 . . . . .                      |
|DISCHARGE REASON        |Phy dis w/sev pay                       |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |Ar 15-185                               |
|ISSUES                  |177/pd                                  |
|1.108.0000              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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