RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           26 October 2005
      DOCKET NUMBER:  AR20050000294


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James E. Vick                 |     |Chairperson          |
|     |Mr. Conrad V. Meyer               |     |Member               |
|     |Ms. Linda M. Barker               |     |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, in effect, that her medical discharge be
changed to medical retirement.

2.  The applicant states, in effect, that because the Physical Evaluation
Board (PEB) did not have all the information at the time of their decision,
she believes she should have been medically retired.  She further states
that she was diagnosed with cancer just a few months after her separation.


3.  The applicant provides an Oregon Department of Veterans Affairs (VA)
Letter in support of her application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 17 January 1998.  The application submitted in this case
was received on 6 January 2005.

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.  On 23 October 1997, the applicant’s case was evaluated by a PEB that
convened at Fort Sam Houston, Texas.  The PEB found that the applicant was
physically unfit and recommended a disability rating of 10 percent based on
left knee pain with chondromalacia and mild instability status post
surgical reconstruction.  The PEB finally recommended the applicant be
separated with severance pay.

4.  On 6 November 1997, the applicant concurred with the findings and
recommendations of the PEB, and waived her right to a formal hearing.
Subsequent to the applicant’s concurrence, the PEB recommendation was
approved.

5.  On 17 January 1998, the applicant was honorably discharged under the
provisions of paragraph 4-24B(3), Army Regulation 635-40, by reason of
physical disability with severance pay.  The separation document (DD Form
214) issued to the applicant confirms she completed a total of 6 years and
13 days of active military service, and held the rank of captain on the
date of her separation.  It also confirms she received disability severance
pay in the amount of $30,637.44. The applicant authenticated this document
with her signature on the date of her discharge.

6.  The applicant provides a letter from a Veterans’ Benefits Counselor
from the Oregon VA.  This VA representative indicates the applicant is
currently service connected for injuries to her knees and is rated at 100
percent disabled.  The VA counselor also states that at the time of her
discharge, the applicant requested that her military doctor approve a
medical retirement due to the injuries she sustained.  However, the
military doctor wished to do experimental surgery on the applicant’s knee
and she refused to sign the necessary paperwork.  The VA counselor further
indicates the applicant discussed the possibility of a medical retirement
with an attorney upon completion of the military medical review process.
However, the attorney advised her that she would need to wait until after
her discharge was finalized before asking for her status to be changed to
medical retirement because she had already been through the medical
process.  This VA official further states that shortly after the
applicant’s discharge, she was diagnosed with cancer, and due to the
emotionally draining experience with the military at the time of her
discharge, she did not pursue the process of changing her discharge status.


7.  Army Regulation 635-40 establishes the Army Physical Disability
Evaluation System (PDES) and sets forth policies, responsibilities, and
procedures that apply in determining whether a Soldier is unfit because of
physical disability to reasonably perform the duties of his or her office,
grade, rank, or rating.

8.  Title 38, United States 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.  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.  The VA can evaluate a veteran throughout his
lifetime, adjusting the percentage of disability based upon that agency's
examinations and findings.  However, these changes do not call into
question the application of the fitness standards and the disability
ratings assigned by proper military medical authorities during the
applicant’s processing through the Army PDES.
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request for a medical retirement, along with the
supporting evidence she provided were carefully considered.  However, there
is an insufficient evidentiary basis to support the requested relief.

2.  The evidence of record confirms the applicant was properly processed
through the PDES in accordance with the applicable laws and regulations.
The argument now presented by the applicant and VA Counselor that she was
given legal advice not to appeal the PEB decision until after her discharge
are not corroborated by the evidence of record.  The record shows the
applicant concurred with the findings and recommendations of the PEB and
did not wish to pursue the appellate process by requesting a formal
hearing.

3.  The fact that the applicant’s disability rating has been increased by
the
VA due to the worsening of her service connected disabilities, and that she
was diagnosed with cancer shortly after her discharge is unfortunate.
However, these factors do not provide a basis to grant the requested
relief.  The VA can evaluate a veteran throughout her lifetime, adjusting
the percentage of disability based upon that agency's examinations and
findings.  However, these changes do not call into question the application
of the fitness standards and the disability ratings assigned by proper
military medical authorities during the applicant’s processing through the
Army PDES.  The evidence shows the applicant is being treated for her
service connected disabilities by the VA, which is appropriate.  Further,
any additional compensation entitlement based on these service connected
conditions should be resolved through the VA process.

4.  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
provide any new medical evidence that would call into question the original
decision of the PEB.  As a result, there is an insufficient evidentiary
basis to support her medical retirement at this late date.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 17 January 1998, the date of her
discharge. Therefore, the time for her to file request for correction of
any error or injustice expired on 16 January 2001.  However, she failed to
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

___JEV _  ___CVM_  ___LMB _  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. Vick_______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050000294                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/10/26                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1998/01/05                              |
|DISCHARGE AUTHORITY     |AR 635-40                               |
|DISCHARGE REASON        |Disability - Severance Pay              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |108.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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