RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           26 October 2004
      DOCKET NUMBER:  AR2004103221


      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. John N. Slone                 |     |Chairperson          |
|     |Mr. Curtis L. Greenway            |     |Member               |
|     |Ms. Eloise C. Prendergast         |     |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 separation for disability with
severance pay be changed to a medical retirement.

2.  The applicant states that his disabilities were much more severe than
the     10 (sic) percent rating given him by the Physical Evaluation Board
(PEB).  His initial Department of Veterans Affairs (VA) rating was 60
percent.  The last note prepared by his orthopedic doctor was that he
should be placed on the Temporary Disability Retired List (TDRL); however,
due to extreme "stress" from the chain of command at Brooke Army Medical
Center he had to go.

3.  The applicant provides a line of duty determination approved May 1994;
     13 pages of civilian medical records pertaining to his accident with a
3-page request for those records; a 3-page Medical Treatment Report date of
operation 7 January 1994; a Standard Form (SF) 558 (Emergency Care and
Treatment) dated 12 February 1994; the front page of a Medical Evaluation
Board (MEB)/PEB SF Form 88 (Report of Medical Examination; and an MEB
Narrative Summary date of examination 25 February 1994.

4.  The applicant also provides a DA Form 3349 (Physical Profile) dated 9
March 1994; a DA Form 3947 (Medical Evaluation Board Proceedings) dated 9
March 1994; an MEB Addendum dated 4 May 1994; a DA Form 199 (Physical
Evaluation Board (PEB) Proceedings) dated 18 May 1994; SF Forms 600
(Chronological Record of Medical Care) dated 6 August 1994, 7 December
1994, and16 December 1994; an MEB Addendum dated 5 January 1995; a Medical
Statement and Referral for Orthopedic Evaluation dated 17 January 1995; and
his discharge orders.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 29 January 1995.  The original application submitted in this
case was dated 12 June 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.  The applicant enlisted in the Regular Army on 15 October 1990.  He
completed basic training and advanced individual training and was awarded
military occupational specialty 12C (Bridge Crewman).

4.  On 2 January 1994, while on authorized leave in the Houston, TX area,
the applicant was involved in an automobile accident.  He suffered a left
acetabular (the scooped-out cavity within the pelvis in which the head of
the thigh bone glides and rotates) fracture dislocation, a right medial
malleolar (the smaller bone on the inside of the ankle) avulsion (tearing
away of a part of the structure), and a pulmonary contusion.  He was taken
to a civilian hospital where a tibial traction pin was emplaced.  He was in
stable condition, so he was transferred to Brooke Army Medical Center on 4
January 1994.

5.  On 7 January 1994, the applicant underwent an open reduction and
internal fixation of the left acetabular fracture dislocation.  Good
fixation and good reduction was noted and the wound was closed.  His date
of discharge is unknown.

6.  On 12 February 1994, the applicant was taken by ambulance to the Brooke
Army Medical Center emergency room for a complaint of left knee pain,
apparently not related to his January 1994 automobile accident.

7.  On 25 February 1994, the applicant underwent an MEB examination.  He
had complaints of right hand pain about the 2d finger and excruciating pain
on his left hip and right ankle.  There was evidence of tenderness at the
right medial malleolus without obvious deformity; however, the ankle was
moderately swollen. In the left lower extremity, the femoral traction pin
was in place.  Sensation was intact to light touch.  Motor was 5/5 over the
EHL (extensor halluces longus (a muscle connecting to the big toe)),
tibialis anterior, and peronei (pertaining to the fibula).  There was
evidence of tenderness around a non-localized area of the proximal tibia
and all of the applicant's femur.  There was a significant amount of
tenderness over the trochanter (either of the two processes below the neck
of the femur) area.

8.  The MEB Narrative Summary noted that the applicant could walk for a
limited distance with crutches.  Motor was 5/5 on his right dermatomes
(area of skin supplied with afferent nerve fibers by a single posterior
spinal root); however, on the left he had 4/5 strength and a significant
amount of atrophy of his quadriceps secondary to disuse and inactivity.
There were no areas of dysesthesia (impairment of any sense, especially of
touch) or hyperesthesia (increased sensitivity to stimulation) in his lower
extremities.  His hip range of motion on the right was normal.  The left
hip had a flexion to 120 degrees, external rotation to 40 degrees, and
internal rotation to 60 degrees.  However, that was symmetrical to the
right hip.  His knee had full range of motion, no effusion although he was
tender over the lateral aspect of the femoral condyles where the iliotibial
band is.

9.  The MEB diagnosed the applicant with (1) multiple trauma with a left
acetabular fracture dislocation, treated, improved with minimal
degenerative joint disease of the hip; (2) right medial malleolar avulsion
fracture, treated, improved; (3) iliotibial band syndrome, left, secondary
to irritation from pin tract from skeletal traction pin; (4); pulmonary
contusions, treated, improved; and (5) remaining neurapraxia (failure of
conduction in a nerve, in the absence of structural changes, due to blunt
injury, compression, or ischemia) of the sciatic nerve, left, secondary to
contusion, recovering clinically.  The MEB referred the applicant to the
PEB and highly recommended placement on the TDRL because of the potential
for avascular necrosis of his femoral head with subsequent development of
potentially severe arthritis.

10.  A 9 May 1994 addendum to the MEB Narrative Summary noted the applicant
complained of recurrent and persistent numbness and pain over the lateral
aspect of his thigh associated with tenderness and discomfort at the iliac
wound site.  Physical examination revealed his wounds were healed without
erythema (redness), drainage, or signs of infection.  There was a Tinel's
sign (tingling sensation in the distal end of a limb when percussion is
made over the site of a divided nerve indicating a partial lesion or the
beginning regeneration of the nerve) over the iliac crest wound close to
the lateral femoral cutaneous nerve.  He showed decreased sensation over
the sensory dermatome of that nerve consistent with neuritis of the same.

11.  The 9 May 1994 addendum noted that examination of the applicant's left
knee demonstrated full range of motion and no effusion.  The external
rotation of that knee was increased compared to the right.  There was no
medial or lateral joint line tenderness and no patellar instability.  He
was further diagnosed with (1) meralgia paresthetica, left (neurapraxia,
sensory nerve [lateral femoral cutaneous nerve]); and (2) PCL (posterior
cruciate ligament) deficiency with posterolateral corner insufficiency of
the left knee.

12.  The 9 May 1994 addendum noted that treatment for the diagnoses would
be functional rehabilitation for the applicant's knee that would require
exercises to improve the strength of his quadriceps muscle.  He could still
develop arthritis in his knee prematurely.  As for the neuralgia
paresthetica, that was a condition that should recede with time.  It was
again recommended that he be placed on the TDRL.

13.  On 18 May 1994, an informal PEB found the applicant to be unfit for
duty for MEB diagnosis 1 (10 percent) and MEB addendum diagnosis 2 (10
percent) for a combined rating of 20 percent.  MEB diagnoses 2, 3, 4, and 5
and addendum diagnosis 1 were found to be not unfitting and not rated).
The PEB recommended he be separated with severance pay.  On 24 May 1994,
the applicant concurred with the findings of the informal PEB and waived a
formal hearing of his case.

14.  On 6 August 1994, the applicant was seen for a complaint of left knee
instability.  On 7 and 16 December 1994, he was seen again for a complaint
of left knee instability.

15.  In a 5 January 1995 addendum to the MEB Narrative Summary, the
applicant's physicians indicated they wished to recall his MEB.  They noted
that the applicant had numerous medical conditions which had not been
dictated in the body of his 25 February 1994 MEB.  The additional diagnoses
included (1) avascular necrosis of the left proximal femur; (2) posterior
cruciate ligament instability, left knee; (3) posterolateral ligamentous
tear of the left knee; (4) medical meniscal tear, left knee; and (5)
probable ACL (anterior cruciate ligament) tear of the left knee.

16.  A medical statement and referral for orthopedic evaluation dated 17
January 1995 noted that the applicant's left hip posterior fracture
dislocation appeared to be healing without any evidence of avascular
necrosis of his left femoral head.  The applicant's left knee was the major
source of his symptoms and complaints.  He was scheduled to undergo a
staged reconstruction of his knee but opted to proceed with separation from
the service.  He would be seeking surgical consultation with orthopedics
via the VA medical system.

17.  On 29 January 1995, the applicant was separated due to physical
disability with severance pay.

18.  A VA Rating Decision dated 24 May 1995 (date of VA examination 18
April 1995) awarded the applicant a combined disability rating of 60
percent for left hip posterior acetabular fracture dislocation with
meralgia paresthetica (40 percent); residual neurapraxia of the left
sciatic nerve (10 percent); right medial malleolar avulsion fracture (10
percent); and posterior cruciate ligament deficiency with posterolateral
corner insufficiency and iliotibial band syndrome, left knee (zero
percent).  The Rating Decision noted that a 40 percent rating (for the
applicant's hip condition) was granted because the physical examination
showed he could flex his hip only 10 degrees.

19.  The VA awarded the applicant a 100 percent disability rating for the
period 12 December 1995 to 1 February 1996, when he had knee reconstruction
surgery.  A VA Rating Decision dated 25 June 1996 shows he was awarded a
10 percent disability rating for posterior ligament deficiency with
posterolateral corner insufficiency, iliotibial band syndrome status post
reconstructive surgery of the left knee.  The other ratings were unchanged.

20.  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.


21.  Army Regulation 635-40 also prescribes the function of the TDRL.  The
TDRL is used in the nature of a “pending list.”  It provides a safeguard
for the Government against permanently retiring a soldier who can later
fully recover, or nearly recover, from the disability causing him or her to
be unfit.  Conversely, the TDRL safeguards the soldier from being
permanently retired with a condition that may reasonably be expected to
develop into a more serious permanent disability.

22.  AR 635-40 states that a soldier's name may be placed on the TDRL when
it is determined that the soldier is qualified for disability retirement
but for the fact that his or her disability is determined not to be of a
permanent nature and stable. When a soldier's correct rating is less than
30 percent, a rating will not be increased to 30 percent solely for the
purpose of making a soldier eligible for the TDRL

23.  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.

24.  The Veterans Administration Schedule for Rating Disabilities (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.

25.  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.  The VA, however, is not required by law to
determine medical unfitness for further military service.
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.  It is noted that the VA rated the applicant's hip condition at 40
percent whereas the Army rated that condition at 10 percent.  However, at
the time of  the applicant's February 1994 MEB evaluation his hip flexion
was noted to be 120 degrees.  While he had complaints of medical problems
several times after his May 1994 PEB, the available evidence shows the
complaints were always of knee instability.  There is no evidence that he
ever complained of his hip "freezing up."  It is acknowledged that his
hip's range of motion may have worsened since his separation.  It
acknowledged that he may, in time, develop avascular necrosis of his
femoral head with subsequent development of potentially severe arthritis.
However, the Army's rating was dependent on the severity of his condition
at the time he separated.  The VA has the responsibility and jurisdiction
to recognize any changes in a condition over time by adjusting disability
ratings.

3.  It is also noted that the Army rated the applicant's knee condition in
May 1994 at 10 percent whereas the VA, even after his numerous complaints
of knee problems after the PEB, initially awarded a zero percent rating for
his knee condition.

4.  There is no evidence that the applicant's ankle condition or injury to
his sciatic nerve made him unfit for military duty; therefore, the Army
could not rate those conditions.  The VA was not limited by this particular
constriction in determining whether a disability rating should be awarded
for those conditions.

5.  It is noted that the applicant's orthopedic doctor recommended he be
placed on the TDRL because of the potential for avascular necrosis of his
femoral head with subsequent development of potentially severe arthritis.
However, since his disabilities appear to have been properly rated at 20
percent, he was not eligible for physical disability retirement and
therefore not eligible for placement on the TDRL.
6.  In addition, the applicant provides no evidence to support his
contention that extreme "stress" from the chain of command at Brooke Army
Medical Center made him separate.  It is also noted that the medical
statement and referral for orthopedic evaluation dated 17 January 1995
indicated he was scheduled to undergo knee reconstruction surgery but he
opted to proceed with separation from the service.

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 29 January 1995; therefore, the time
for   the applicant to file a request for correction of any error or
injustice expired on   28 January 1998.  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

__jns___  __clg___  __ecp___  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.




            __John N. Slone_______
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR2004103221                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20041026                                |
|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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