RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           26 August 2004
      DOCKET NUMBER:  AR2004101086


      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. Raymond J. Wagner             |     |Chairperson          |
|     |Mr. Lester Echols                 |     |Member               |
|     |Ms. Margaret V. Thompson          |     |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 medical separation with severance pay
be changed to a medical retirement.

2.  The applicant states that the Department of Veterans Affairs (DVA)
awarded him a 30 percent disability rating within 6 months of his
separation.

3.  The applicant provides his DD Form 214 (Certificate of Release or
Discharge from Active Duty); a VA Form 21-4138 (Statement in Support of
Claim); his DVA Rating Decision; a document dated 19 November 2003 from
Suncoast Orthopedics; and an undated document from EBP, A Biomet Company.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel failed to review the records within 30 days of notification they
were available.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 13 March 1999.  The application submitted in this case is dated
31 March 2003.

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.  After having had prior service in the Army National Guard, the
applicant enlisted in the Regular Army on 21 October 1997 in military
occupational specialty 13E (Cannon Fire Direction Specialist).

4.  In January 1998, the applicant injured his left knee while on a field
exercise.  The Medical Evaluation Board (MEB) Narrative Summary indicates
that a physical examination revealed no effusion, full range of motion, no
laxity to varus, valgus, drawer or Lachman test.  McMurray's test was
negative but he was
tender along the medial femoral condyle next to his patella.  An MRI
(magnetic resonance imaging) performed in August 1998 was normal except for
a small baker's cyst.  The MEB diagnosed him with chronic left knee pain
with a suspected chronic bruised cartilage and referred him to a Physical
Evaluation Board (PEB).  On 6 November 1998, the applicant agreed with the
findings and recommendation of the MEB.

5.  On 16 November 1998, an informal PEB found the applicant physically
unfit for service due to chronic left knee pain with normal x-rays, and
failure of an MRI to disclose menisci or ligamentous injury, with stable
joint, full range of motion, and limited by pain on motion.  He was rated
for pain and recommended for separation with a zero percent disability
rating and severance pay.  On               20 November 1998, he
nonconcurred with the findings of the informal PEB      and demanded a
formal hearing.

6.  On 9 December 1998, a formal PEB found the applicant physically unfit
for service due to chronic left knee pain with full range of motion and no
medical evidence or instability and failure of x-rays and an MRI to
disclose meniscus or ligamentous injury with disclosure of a small baker's
cyst.  The physical limitations present were primarily caused by pain and
the rating was for pain.  He was recommended for separation under
Department of Veterans Affairs Schedule for Rating Disabilities (VASRD)
code 5003 (degenerative arthritis) with a zero percent disability rating
and severance pay.  On 10 December 1998, he concurred with the findings and
recommendation of the formal PEB.

7.  On 13 March 1999, the applicant was separated due to disability with
severance pay, in pay grade E-3, after completing 1 year, 4 months, and 23
days of creditable active service.

8.  In September 1999, the DVA awarded the applicant a 30 percent combined
disability rating (sinusitis, 10 percent; tinnitus, 10 percent; left knee
strain with baker's cyst, 10 percent; temporomandibular joint syndrome, 10
percent; and left calf second degree burn scar, zero percent).  His left
knee strain was rated under VASRD codes 5257 (recurrent sublaxation or
lateral instability of the knee) and 5020 (synovitis – inflammation of a
synovial membrane).

9.  The 19 November 2003 document from Suncoast Orthopedics provided by the
applicant indicates he was diagnosed with a left torn medial meniscus.

10.  Army Regulation 635-40 governs the evaluation of physical fitness of
soldiers who may be unfit to perform their military duties because of
physical
disability.  The unfitness is of such a degree that a soldier is unable to
perform the duties of his office, grade, rank or rating in such a way as to
reasonably fulfill the purposes of his employment on active duty.

11.  The VASRD is the standard under which percentage rating decisions are
to be made for disabled military personnel.  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.
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.  These percentages are applied based on the severity of the
condition.

12.  Army Regulation 635-40, Appendix B, paragraph B-15 states that
occasionally a medical condition which causes or contributes to unfitness
for military service is of such mild degree that it does not meet the
criteria for even the lowest rating provided in the VASRD.  In those cases,
a zero percent rating will be applied even though the lowest rating listed
is 10 percent or more.

13.  Army Regulation 635-40, Appendix B, paragraph B-24 states that often a
soldier will 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 to detect the existence of or measure the
intensity of subjective complaints of pain, a disability retirement cannot
be awarded only on the basis of pain.  Rating by analogy to degenerative
arthritis (VASRD code 5003) as an exception to analogous rating policies
may be assigned in unusual cases with a 20 percent ceiling, either for a
single diagnosed condition or for a combination of diagnosed conditions
each rated essentially for a pain value.

14.  Army Regulation 635-40 also states that there is no legal requirement
in arriving at the rated degree of incapacity to rate a physical condition
which is not in itself considered disqualifying for military service when a
soldier is found unfit because of another condition that is disqualifying.
Only the unfitting conditions or defects and those which contribute to
unfitness will be considered in arriving at the rated degree of incapacity
warranting retirement or separation for disability.

15.  Title 38, U. S. Code, sections 310 and 331, permits the DVA to award
compensation for a medical condition which was incurred in or aggravated by
active military service.

16.  Title 10, U. S. 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.

DISCUSSION AND CONCLUSIONS:

1.  The rating action by the VA does not necessarily demonstrate an error
or injustice in the Army rating.  The VA, operating under its own policies
and regulations, assigns disability ratings as it sees fit.  The VA is not
required by law to determine medical unfitness for further military service
in awarding a disability rating, only that a medical condition reduces or
impairs the social or industrial adaptability of the individual concerned.
Consequently, due to the two concepts involved (i.e., the more stringent
standard by which a soldier is determined not to be medically fit for duty
versus the standard by which a civilian would be determined to be socially
or industrially impaired), an individual’s medical condition may be rated
by the Army at one level and by the VA at another level.

2.  At the time the applicant separated there were no objective findings to
account for his pain.  He had full range of motion, no instability, and x-
rays and an MRI failed to disclose a meniscus or ligamentous injury
although they did disclose a small baker's cyst.  He was separated for
pain.  The fact the VA awarded him a 10 percent disability rating does not
invalidate the Army's awarding him a zero percent disability rating.  The
Army is not bound by the VASRD when a medical condition is rated
essentially for pain.

3.  It is noted that the VA did not rate the applicant for a meniscus tear
in his knee.  The first evidence available he had such a tear is dated more
than 4 years after he separated.

4.  There is no evidence to show the applicant's sinusitis, tinnitus,
temporomandibular joint syndrome, or left calf second degree burn made him
unfit to perform his military duties.  Therefore, there was no requirement
for the Army to rate him for those conditions.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 13 March 1999; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on         12 March 2002.  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 RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__rjw___  __le____  __mvt___  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.




            __Raymond J. Wagner___
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR2004101086                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040826                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |108.02                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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