RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        5 JANUARY 2006
      DOCKET NUMBER:  AR20050004593


      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. William Powers                |     |Chairperson          |
|     |Mr. Thomas Ray                    |     |Member               |
|     |Mr. Randolph Fleming              |     |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, disability retirement vice
disability separation.

2.  The applicant states during his final evaluation by the Physical
Evaluation Board (PEB) in July 1976 he was not given a rating evaluation
for his right knee, only the left.  He states that his disability involved
both knees and believes he should have received at least a 30 percent
disability rating.

3.  The applicant provides copies of documents associated with his
disability processing.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 31 August 1976, the date his name was removed from the
Temporary Disability Retired List (TDRL).  The application submitted in
this case is dated 21 March 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 initially entered
active duty in 1968 and was discharged for the purpose of immediate
reenlistment in May 1970.  He was initially trained as a carpenter but
subsequently performed duty as motor transport operator.

4.  In July 1973 the applicant underwent a Medical Evaluation Board (MEB).
His chief complaint was noted to be an inability to fully extend both
knees, the left for about 2 years, the right for about 10 months.  The MEB
summary notes that he sustained an injury to his left knee in September
1971 while playing football at Fort Meade, Maryland.  In August 1972, again
while playing football, he tore his right patellar tendon.  Both knees were
surgically repaired.  Since then the applicant lacked full active extension
of both knees, the left more marked than the right.  During the MEB he
complained of constant aching pains in both knees. His final diagnosis was
old bilateral traumatic rupture, patellar tendons (medical diagnosis 1) and
bilateral chondromalacia (knee pain) (medical diagnosis 2).  He was
referred to a PEB and concurred with the findings and recommendation of the
MEB.

5.  In August 1973 an informal PEB concluded that the applicant's knee
condition rendered him unfit but had not sufficiently stabilized to render
a final decision.  As such, the PEB recommended the applicant's name be
placed on the TDRL with a disability rating of 70 percent.  The applicant
concurred and the findings and recommendation of the PEB were approved.  On
21 September 1973 the applicant was honorably discharged and his name
placed on the TDRL the following day.

6.  In March 1975 the applicant underwent reevaluation.  The evaluating
physician noted the applicant was then working fulltime, that he had made
considerable improvement in the status of both lower extremities.  It noted
the applicant's right knee had progressed to the point where the applicant
had full active extension with normal strength and normal range of motion,
with no instability.  The physician indicated the applicant's left knee was
still somewhat weak.  The physician concluded the applicant had made marked
improvement since his discharge and that the improvement was approaching a
maximum level.  However, the physician recommended the applicant remain on
the TDRL and be reexamined in another year.  An informal PEB concurred with
the recommendation of the TDRL evaluation noting the continued problem with
the applicant's left knee.

7.  In May 1976 the applicant underwent his final TDRL evaluation.  The
examining physician noted the applicant had not improved since his last
TDRL evaluation and it was felt that he had reached maximum improvement.
The evaluating physician merely repeated the diagnosis from the 1973
original MEB but did note specifically that the applicant's physical
condition had not changed since was last evaluated on the TDRL and
indicated he was still fully employed.  The applicant concurred with the
findings and recommendation of the TDRL evaluation.

8.  In June 1976 an informal PEB concluded the applicant's condition had
stabilized to the point that a permanent degree of severity could be
determined.  The PEB concluded the applicant's left leg, which showed
limitation of extension to 15 degrees rendered him unfit and the proper
disposition was separation with severance pay.  His left knee condition was
rated at 20 percent under VASRD (Veterans Administration Schedule for
Rating Disabilities) code 5251.  The applicant concurred and waived his
entitlement to a formal hearing.  The findings and conclusion of the
informal PEB were approved and on 31 August 1976 the applicant's name was
removed from the TDRL.

9.  VASRD Code 5261 provides for a 20 percent rating when leg extension is
limited to 15 degrees.  Increased ratings of 30 to 50 are authorized only
when extension is limited to 20, 30 or 45 degrees.

10.  Army Regulation 635-40, which establishes the policies and provisions
for physical evaluation for retention, retirement, or separation of Army
Soldiers, provides that an individual may be placed on the TDRL (for the
maximum period of 5 years which is allowed by Title 10, United States Code,
section 1210) when it is determined that the individual's physical
disability is not stable and he or she may recover and be fit for duty, or
the individual's disability is not stable and the degree of severity may
change within the next 5 years so as to change the disability rating.
Following reevaluation, and once it has been determined that the
individual’s medical condition has stabilized, the individual could
ultimately be found fit, permanently retired providing his final disability
rating was at 30 percent or higher, or, in cases where the final disability
rating was less than 30 percent, entitled to disability severance pay.
Only individuals whose final disability rating is 30 percent or higher are
considered permanently retired by reason of physical disability.

11.  Army Regulation 635-40 further states that the combined percentage
rating approved at the time the Soldier was placed on the TDRL cannot be
changed by the PEB throughout the period the Soldier is on the TDRL.
Adjustment will be made at the time of removal from the TDRL to reflect the
degree of severity of those conditions rated at the time of placement on
the TDRL and any ratable conditions identified since placement on the TDRL.

DISCUSSION AND CONCLUSIONS:

1.  Based on the evidence available to the Board, it appears the
applicant's final PEB concluded that the findings and recommendation of the
May 1975 TDRL evaluation, which were more detailed than the May 1976
evaluation, more appropriately described the applicant's final medical
conditions and as such, based it's final determination on the condition of
the applicant's left knee.

2.  While the applicant is correct, that both knees were the initial basis
for referral for disability processing, ultimately the right knee improved
to such a point that it did not render him unfit and only his left knee
condition remained unfitting.

3.  The applicant provides no evidence or documentation with his
application to this Board, which substantiates his contention that the Army
did not properly evaluate his medical condition at the time of his final
separation or that his condition warranted a rating high enough to result
in disability retirement rather than separation.

4.  It is noted that the applicant would have been involved in his
disability processing and would have had the opportunity to raise
objections at various stages of the process.  The evidence, however, shows
that the applicant concurred with the findings and recommendation in each
instance, thereby confirming his agreement with the recommendation that he
was ultimately separated by reason of disability with a disability rating
of 20 percent based on his left knee condition.  He has submitted no
evidence that indicates otherwise.  Had he believed that the rating was
unfair or unjust he could have requested a formal hearing.  The fact that
he did not further supports a conclusion that his knee condition was
properly evaluated and that the rating was appropriate.

5.  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.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 31 August 1976; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
30 August 1979.  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

___WP __  __TR ___  __RF ___  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.




                                  _____ William Powers_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050004593                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060105                                |
|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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