RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        20 OCTOBER 2005
      DOCKET NUMBER:  AR20050004581


      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. Rene' R. Parker               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John Meixell                  |     |Chairperson          |
|     |Mr. James Gunlicks                |     |Member               |
|     |Ms. Jeanette McCants              |     |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, a higher Army disability rating than
the 20 percent rating he received.

2.  The applicant states that his migraine headaches and other medical
problems were documented but, were not considered in his disability rating.

3.  The applicant does not provide any supporting documentation.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 28 January 2000, the date the applicant was removed from the
Temporary Disability Retired List.  The application submitted in this case
is dated                 18 February 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 that the applicant became a
member of the United States Army on 12 June 1972.  He originally enlisted
in the Army as an 11C (Indirect Fire Infantryman) and later served as an
18Z (Special Forces Senior Sergeant).

4.  On 30 August 1996, the applicant underwent a Medical Evaluation Board
(MEB).  His chief complaint was recorded as chronic right foot wound.  The
physician conducting the physical examination also notes other treatments
rendered during the applicant's hospital admission.  He states that the
applicant was evaluated by the Orthopedic Spine Service for lower back pain
which was felt to be musculature in nature.  The physician recommended
conservative therapy.  The applicant was also evaluated for chronic right
knee and left hip pain.  There were no specific recommendations for further
surgical therapy for these injuries.  Additionally, the applicant underwent
neurologic and ophthalmologic evaluations for chronic migraine headaches
and intermittent visual blurring.  His right foot injury and lumbar back
pain were considered medically unacceptable.  The right knee injury,
migraine headaches, and visual blurring were considered medically
acceptable.  The MEB referred the applicant to a Physical Evaluation Board
(PEB).  The applicant agreed with the MEB findings and recommendations.

5.  On 15 March 1997, the PEB convened and recommended a disability rating
of 10 percent for the applicant's chronic right foot injury.  His other
medical conditions were not unfitting and therefore, not rated.  The PEB
states that based on a review of the medical evidence of record, the
applicant's medical condition prevents satisfactory performance of duty in
his grade and primary MOS.  The applicant nonconcurred with their
recommendation and requested a formal hearing with personal appearance.

6.  On 3 December 1997, the PEB convened and approved a disability rating
of 20 percent for the applicant.  The PEB states that having considered all
the evidence, the applicant's testimony, and comments of counsel, the
applicant was unfit to perform duties as an 18Z.  The rating was approved
on 15 December 1997 for the applicant's "chronic right foot injury."  The
Board recommended that the applicant be placed on the Temporary Disability
Retirement List (TDRL) with reexamination on 1 May 1999.

7.  On 3 February 1998, the PEB convened to reconsider additional
information. There were no changes made to the original rating of 20
percent.  The Board recommended that the applicant be placed on the TDRL
with reexamination on    1 September 1999.  The Board's findings and
recommendations were approved on 1 April 1998.

8.  Orders dated 15 April 1998, placed the applicant on the TDRL with an
effective date of 19 May 1998.

9.  On 1 December 1999, the PEB convened to review the applicant's TDRL
examination.  The PEB found that the applicant remained unfit and
recommended that he be permanently retired with a disability rating of 20
percent.

10.  On 7 January 2000 the applicant was notified of the Board's decision
and instructed on his rights.  The memorandum explains that he could either
state that he did not wish to submit a statement of rebuttal or state his
reasons for disagreement on the form that was provided or an attached
paper.  He was also given the opportunity to provide new medical evidence
and request an extension if needed.

11.  On 16 January 2000, the applicant states, on his election form, that
he did not concur with the findings and recommendations of the PEB.  He
said that he wished to submit a statement of rebuttal after he found a
doctor that had experiences in dealing with such cases.

12.  On 18 January 2000, the president of the PEB stated that the medical
documentation in the applicant's case file and his testimony during the
formal hearing provided sufficient information to adjudicate his case.  He
stated that the applicant's 10 day rebuttal period had expired, and his
(applicant) desire to seek more medical information did not justify further
delay.

13.  On 24 January 2000, the U.S. Army Physical Disability Agency (USAPDA),
Washington DC, notified the applicant of their decision to uphold the PEB's
findings and recommendations.  The USAPDA concluded that the applicant's
case was properly adjudicated by the PEB, which correctly applied the rules
that govern the Physical Disability Evaluation Systems (PDES) in making its
determination.

14.  Orders dated 28 January 2000, removed the applicant from the TDRL,
effective 28 January 2000.

15.  Army Regulation 635-40 states that disability compensation is not an
entitlement acquired by reason of service-incurred illness or injury;
rather, it is provided to soldiers whose service is interrupted and they
can no longer continue to reasonably perform because of a physical
disability incurred or aggravated in service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's MEB substantiates his claim that he suffered with
migraine headaches and had other medical problems that were documented in
his evaluation.  The MEB stated that the applicant's right foot injury and
lumbar back pain were medically unacceptable, whereas his right knee
injury, migraine headaches, and visual blurring were considered medically
acceptable.

2.  The records show that there were four PEBs conducted from 15 March 1997
through 1 December 1999.  The applicant was given the opportunity to either
appear before the Board or provide additional evidence that would aid the
Board in making their final determination.  In addition to reviewing the
applicant's medical records, the PEB also received testimony from the
applicant and comments from his counsel.  There is no indication that the
PEB was not aware of the applicant's "additional medical problems" prior to
making their final decision.

3.  Additionally, the USAPDA reviewed the applicant's entire file and
concluded that his case was properly adjudicated.  Therefore, 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 that
requirement.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 28 January 2000; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on         27 January 2003.  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

___JM  __  __JG ___  ___JM __  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 Meixell_________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050004581                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051020                                |
|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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