RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        15 NOVEMBER 2005
      DOCKET NUMBER:  AR20050001282


      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. Stanley Kelley                |     |Chairperson          |
|     |Mr. John Meixell                  |     |Member               |
|     |Mr. Robert Duecaster              |     |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 disability retirement in lieu of disability
separation.

2.  The applicant states he was given only a 10 percent rating for his left
knee condition by the Army and was subsequently awarded a 30 percent rating
for that same condition by the Department of Veterans Affairs.

3.  The applicant provides copies of documents associated with his Army
disability processing and a copy of his Department of Veterans Affairs
rating decision.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the Board grant the relief requested.

2.  Counsel states, in effect, that the applicant was evaluated by the
Department of Veterans Affairs for the same condition rated by the Army and
that the Department of Veterans Affairs found the applicant entitled to a
30 percent evaluation retroactive do the date he was separated from the
Army.

3.  Counsel provides no evidence beyond that provided by the applicant.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 25 October 1996.  The application submitted in this case
is dated
4 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.  Records available to the Board indicate the applicant entered active
duty on 21 October 1982 and served continuously through a series of
reenlistments.


4.  In July 1996 the applicant underwent a medical evaluation board (MEB).
His chief complaint was identified as bilateral chondromalacia of the
patella (pain around and sometimes behind the kneecap), left great than
right.  The MEB summary noted the applicant had twisted his left knee in a
basketball game in 1993 and subsequently underwent a knee operation.  In
August 1994 he sustained a recurrent twisting injury during a field
training exercise and in November 1994 underwent left knee arthroscopy.  A
second arthroscopy was done in January 1995 and although he tolerated the
procedure well he continued to have problems with retropatellar knee pain
without significant relief from anti-inflammatory drugs.

5.  The MEB concluded the applicant's principal diagnosis was
chondromalacia patellae, left knee much great than the right, and that he
suffered from several secondary conditions, including hypercholesterolemia,
bilateral high frequency, left plantar fasciitis, chronic musculoskeletal
low back pain, and status post reduction internal fixation of left first
and second metacarpal fractures.  The MEB recommended the applicant be
referred to a PEB (physical evaluation board).  The applicant concurred
with the findings and recommendation of the MEB.

6.  On 20 September 1996 the applicant underwent an informal PEB.  The PEB
concluded that his functional limitations in maintaining the appropriate
level of mobility and agility, caused by his knee condition, rendered him
unfit to perform his duties.  The PEB rated the applicant's condition at 10
percent and recommended separation with entitlement to severance pay if
otherwise eligible. The PEB noted that none of the secondary medical
conditions identified by the MEB were unfitting and therefore were not
rated.  The applicant concurred with the findings and recommendation of the
PEB and waived his right to a formal hearing.

7.  On 25 October 1996 the applicant was honorably discharged by reason of
physical disability and received more than $45,000.00 in disability
severance pay.

8.  The Department of Veterans Affairs rating documents, provided by the
applicant, indicates his left knee condition was initially rated as 20
percent disabling but was increased to 30 percent upon appeal.  The rating
was effective 26 October 1996, the day following his separation from active
duty.

9.  Title 10, United States 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.

10.  Title 10, United States Code, section 1201, provides for the physical
disability retirement of a member who has at least 20 years of service or a
disability rated at least 30 percent.

11.  Title 38, United States Code, sections 1110 and 1131, permit the
Department of Veterans Affairs (VA) to award compensation for disabilities
which were incurred in or aggravated by active military service.  However,
an award of a VA rating does not establish an error or injustice in the
separation or discharge of an individual from the Army not as a result of a
disability.  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 VA, 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.  The Army rates only conditions
determined to be physically unfitting at the time of discharge, thus
compensating the individual for loss of a career; while the VA may rate any
service connected impairment, including those that are detected after
discharge, in order to compensate the individual for loss of civilian
employability.

12.  Title 38, United States Code, section 5110, states the effective date
of an award of disability compensation to a veteran shall be the day
following the date of the veteran's discharge or release if application for
disability benefits is received within one year from the date of discharge
or release.

DISCUSSION AND CONCLUSIONS:

1.  The rating action by the VA does not necessarily demonstrate any error
or injustice in the Army rating.  The VA, operating under its own policies
and regulations, assigns disability ratings as it sees fit.

2.  The applicant was a participant in his disability processing and
concurred with the findings and recommendation of his PEB.  The fact that
he is now receiving disability compensation from the Department of Veterans
Affairs at a higher rating does not compel the Army to modify its reason or
authority for separation.

3.  The effective date of the applicant's VA compensation, which was the
day following his Army discharge date and not, as both he and his counsel
imply, the same day as his discharge, is dictated under the provisions of
Title 38 of the United States Code and is not an indication that the
applicant's Army disability rating was incorrect or in error.
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 the aforementioned requirement.

5.  In view of the foregoing, there is no basis for granting the
applicant's request.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 25 October 1996; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
24 October 1999.  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

__SK ___  __JM  ___  __RD ___  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.



                                  ______Stanley Kelley _______
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050001282                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051115                                |
|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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