RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        20 DECEMBER 2005
      DOCKET NUMBER:  AR20050004641


      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. James Hise                    |     |Chairperson          |
|     |Mr. Ronald Blakely                |     |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 that he be medically retired in the grade of 0-
3.

2.  The applicant states that in spite of many doctors’ visits and
incidents of leg and hip pain during his active service, his condition was
not diagnosed.  He states that he was discharged in 1998 with continuing
problems which were recognized as Bi-Lateral A vascular Necrosis in 2002.
The applicant maintains that his condition resulted in total hip
replacement as a result of trauma during his active service.

3.  The applicant provides his DD Form 214 (Armed Forces of the United
States Report of Transfer or Discharge), self authored statement, Veterans
Affairs (VA) application and findings, Army medical records, civilian
medical records, and medical journal articles.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 15 September 1998.  The application submitted in this
case is dated 18 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.  The applicant's military records show that he was appointed a second
lieutenant in the Regular Army on 12 May 1990 in the Infantry Branch.  He
remained on continuous active duty until he resigned his commission under
the provisions of AR 600-8-24, paragraph 3-5 on 15 September 1998.  He had
        8 years, 4 months, and 4 days of active service and attained the
rank of captain at the time of separation.

4.  In his self-authored statement, the applicant stated that he first
began to have problems with his hip while attending Ranger School.  He
recalled that he injured himself during a rapelling operation and was seen
by the doctor on three separate occasions within a six month time period.
The applicant said he was hospitalized on one of those occasions.  The
applicant explained that during his assignments and deployments, he
routinely conducted 12 to 25 mile road marches, carried rucksacks weighing
in excess of 100 pounds, and made in excess of 60 parachute jumps.  The
applicant maintains that between 1992 and 1995 he experienced severe knee
pain and was seen by a doctor on several occasions.  Each time, he states,
he received a profile limiting his activities.

5.  The applicant admitted that he continued to experience problems for a
period of three years but, the focus was always on his knees.  When he
processed out of the military he did not receive a full physical.  He
states that he was seen by a physician or physician assistant at the unit
clinic, had blood drawn and his medical records reviewed.  There was no
indication of medical disqualification.

6.  The applicant said that the problems that he experienced with his knee
and hip were minor when he was in the service but, since then, they have
greatly altered his life.  He admitted that his hip replacement surgery
resulted in some immediate alleviation of pain but, his physical activities
have been seriously limited.  He requests a review of his military and
civilian medical records in order to correctly determine his physical and
medical condition at the time of his separation.  Additionally, he requests
evaluation by the Medical Evaluation Board (MEB) and Physical Evaluation
Board (PEB) for determination of the percentage of disability which should
have been awarded had he been properly entered into the disability system
at the time of separation.

7.  The documents from the VA show that the applicant’s conditions were
determined to be service connected and he was awarded a combined final
rating of 70 percent for the following:  30 percent rating for avascular
necrosis right hip; 30 percent rating for avascular necrosis left hip; 10
percent rating for degenerative joint disease left shoulder; 10 percent
rating for degenerative joint disease left knee; and 10 percent rating for
degenerative joint disease right knee

8.  The applicant’s Army medical records show that he received three
profiles.  The first profile was issued on 28 November 1990 through 12
December 1990, two weeks, for a muscle strain of the right quadriceps.  On
6 December 1995, a   30-day profile was issued for his left knee.  On 10
January 1996 through              10 February 1996, the applicant was on
profile for his left knee.

9.  Records also show that the applicant was seen by a physician on four
separate occasions in November 1990.  His chief complaint was hip pain.
During the period September 1995 through December 1996 he was seen on
several occasions for left knee pain.  On 2 October 1995 he underwent a
bone scan in which images of the applicant’s pelvis and lower extremities
were obtained.
10.  The civilian medical records show that the applicant was seen on
         13 September 2002 at the Capital Region Orthopaedic Group for
bilateral hip pain.  The medical records also verify that the applicant
underwent his right total hip replacement on 6 February 2003 and his left
total hip replacement on             2 May 2003.

11.  The applicant provided articles in the medical journal on avascular
necrosis. The articles indicate that there are multiple conditions
associated with the development of osteonecrosis, including trauma.

12.  Army Regulation 600-8-24 (Officer Transfer and Discharge) paragraph 3-
5, explains the rules for processing unqualified resignation.  This
paragraph states that any officer on active duty may tender a resignation
except when action is pending that could result in resignation for the good
of the Service; officer is under a suspension of favorable actions, pending
investigation, under charges; or any other unfavorable or derogatory action
is pending.  Additionally, the regulation requires that a statement that
the officer is physically qualified for separation or that the officer will
be scheduled for medical examination according to the regulation be
included in the request.

13.  Army Regulation 635-40, (Physical Evaluation for Retention,
Retirement, or Separation) 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 interrupted and they can
no longer continue to reasonably perform because of a physical disability
incurred or aggravated in service.  When a Soldier is being processed for
separation for reasons other than physical disability, continued
performance of assigned duty commensurate with his or her rank or grade
until Soldier is scheduled for separation, is an indication that the
individual is fit.

14.  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.  Consequently, due to the two concepts involved, an
individual's medical condition, although not considered medically unfitting
for military service at the time of processing for separation, discharge or
retirement, may be sufficient to qualify the individual for VA benefits
based on an evaluation by that agency.

DISCUSSION AND CONCLUSIONS:

1.  The applicant resigned his commission and was required to render a
statement attesting that he was physically fit for separation or undergo a
medical examination.  Based on his own admission that he did not receive a
full physical, one can assume that he signed a statement that he was
physically fit.

2.  The applicant’s medical record documents his problems with his hip and
knees as early as November 1990.  In spite of this, the applicant did not
receive a profile concerning his hip or knees for any great length of time.
 Additionally, his records do not indicate that his medical problems
interfered with his performance of duty.  There is no medical evidence, and
the applicant did not provide any, that showed he was medically unfit and
required physical disability processing.

3.  The applicant provides his 70 percent disability rating from VA as
proof that he should have been medically retired.  The Board acknowledges
that VA is not required by law to determine medical unfitness for further
military service.  The VA 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.
Consequently, the applicant's medical condition, although not considered
medically unfitting for military service at the time of processing for
separation, discharge or retirement, may be sufficient to qualify him for
VA benefits based on an evaluation by that agency.

4.  An award of a VA rating does not establish entitlement to medical
retirement or separation.  The VA is not required to find unfitness for
duty.  Operating under its own policies and regulations, the VA awards
ratings because a medical condition is related to service, i.e., service-
connected.  Furthermore, the VA can evaluate a veteran throughout his
lifetime, adjusting the percentage of disability based upon that agency's
examinations and findings.  The Army must find unfitness for duty at the
time of separation before a member may be medically retired or separated.

5.  No medical evidence has been presented by the applicant to demonstrate
an injustice in the medical treatment received in service.  Absent evidence
to the contrary, the applicant was physically fit at the time of his
discharge in September 1998.  He has provided no evidence to indicate
otherwise.  Consequently, there is no basis for granting the applicant's
request to correct his records to show that he was medically retired.


6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 15 September 1998; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on   14 September 2001.  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

__JH____  __RB ___  ___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.




                                  ______James Hise_________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050004641                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051220                                |
|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.                      |                                        |


-----------------------
[pic]