RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        10 January 2006
      DOCKET NUMBER:  AR20050006834


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Kenneth L. Wright             |     |Chairperson          |
|     |Mr. Dale E. DeBruler              |     |Member               |
|     |Mr. Qawiy A. Sabree               |     |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 records be corrected to
show she was medically retired.

2.  The applicant states the Department of Veterans Affairs (DVA) awarded
her a 30 percent disability rating effective one day following her
discharge for the same disabilities.

3.  The applicant provides a DD Form 214 (Certificate of Release or
Discharge from Active Duty); a DVA Rating Decision dated 12 December 1995;
and a DVA Rating Decision dated 20 May 1996.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel did not respond within the given time frame.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 10 May 1996 (the date of the DVA's second Rating
Decision).  The application submitted in this case is dated 30 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.  The Medical Evaluation Board (MEB) Narrative Summary indicates the
applicant was evaluated for active duty service on 30 November 1993, at
which time a mild pes planus (flat foot) condition was noted.

4.  The applicant enlisted in the Regular Army on 5 January 1994.  The
Narrative Summary indicates she was evaluated and treated two times for
arch and heel pain complaints during basic training.  In advanced
individual training, she was evaluated and treated four times for continued
bilateral heel, arch, and forefoot pain.  At her first permanent duty
station, she was evaluated and treated five times for continued foot pain.

5.  On 8 March 1995, an MEB referred the applicant to a Physical Evaluation
Board (PEB) for diagnoses of: (1) bilateral pes planus, existed prior to
service (EPTS), permanently aggravated by service; (2) bilateral mild
hallux valgus (bunions), EPTS, permanently aggravated by service; (3)
bilateral plantar fasciitis (heel pain caused by inflammation of the tissue
along the bottom of the foot that connects the heel bone to the toes), EPTS
unknown, permanently aggravated by service; (4) bilateral fibular
sesamoiditis (apparently an ankle condition), EPTS, permanently aggravated
by service; (5) fracture versus bipartition of the left tibial sesamoid,
EPTS unknown, permanently aggravated by service; and (6) pregnancy.  On 10
March 1995, the applicant agreed with the MEB's findings and
recommendation.

6.  On 20 March 1995, an informal PEB found the applicant to be unfit due
to pes planus, bilateral, EPTS, and hallux valgus, mild, bilateral, EPTS.
Both conditions were found to be not service incurred or permanently
aggravated.  Diagnoses 3, 4, 5, and 6 were found to be not unfitting and
therefore not ratable.  The PEB recommended the applicant be separated
without disability benefits.  On           23 March 1995, the applicant
concurred with the findings of the informal PEB and waived a formal hearing
of her case.

7.  On 14 May 1995, the applicant was honorably discharged due to
disabilities that existed prior to service.

8.  On 12 December 1995, the DVA awarded the applicant a 20 percent
disability rating for a right and left knee condition (10 percent each).
The DVA found her bilateral pes planus and a gynecological condition to not
be service-connected.

9.  On 10 May 1996, the DVA awarded the applicant a 30 percent disability
rating for her knee conditions (10 percent each knee) and for bilateral pes
planus         (10 percent due to aggravation of a pre-existing condition).

10.  Army Regulation 635-40 governs the evaluation of physical fitness of
Soldiers who may be unfit to perform their military duties because of
physical disability.  The unfitness is of such a degree that a Soldier is
unable to perform the duties of his office, grade, rank or rating in such a
way as to reasonably    fulfill the purposes of his employment on active
duty.  Appendix B, paragraph     10 states that, when considering EPTS
cases involving aggravation by active service, the rating will reflect only
the degree of disability over and above the degree existing at the time of
entrance into the active service, less natural progression occurring during
active service.  This will apply whether the particular condition was noted
at the time of entrance into active service or is determined upon the
evidence of record or accepted medical principles to have existed at that
time.  Hereditary, congenital and other EPTS conditions frequently become
unfitting through natural progression and should not be assigned a
disability rating unless service-aggravated complications are clearly
documented.

11.  Title 38, U. S. Code, sections 1110 and 1131, permits the DVA to award
compensation for a medical condition which was incurred in or aggravated by
active military service.

12.  Title 10, U. S. Code, section 1201, provides for the physical
disability retirement of a member who has at least 20 years service or who
has less than 20 years service and a disability rated at least 30 percent.
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.

13.  Title 10, U. S. Code, section 1212(c), states the amount of disability
severance pay received shall be deducted from any compensation for the same
disability to which the former member becomes entitled under any law
administered by the DVA.  Thus, DVA compensation may be withheld as an
offset on a monthly basis until the total amount of military severance pay
has been recovered.

14.  Until certain provisions of the law were changed in fiscal year 2004,
a common misconception was that veterans could receive both a military
retirement for physical unfitness and a DVA disability pension.  Under the
law prior to 2004, a veteran could only be compensated once for a
disability.  If a veteran was receiving a DVA disability pension and the
Board corrected the records to show the veteran was retired for physical
unfitness, the veteran would have had to have chosen between the DVA
pension and military retirement.  The new law does not apply to disability
retirees with less than 20 years of service and retirees who have combined
their military time and civil service time to qualify for a civil service
retirement.

DISCUSSION AND CONCLUSIONS:

1.  The rating action by the DVA does not necessarily demonstrate an error
or injustice on the part of the Army.

2.  The DVA initially awarded the applicant a 20 percent rating for a right
and left knee condition.  Knee problems were not mentioned by the MEB and
the applicant had agreed with the MEB's findings.  There was no clearly
documented evidence of service-aggravated complications regarding her pes
planus as
evidenced not only by the PEB's decision but also by the DVA's initial
rating denying her service-connection for this condition.  Since the Army
could not determine the service component of the disability, a disability
rating could not be assigned.  The Army is not bound by any later decisions
made by the DVA which operates under its own policies and regulations and
assigns disability ratings as it sees fit.

3.  In addition, granting the relief requested would not offer the
applicant any additional benefit.  Since she did not have 20 years of
service, she could not receive both a military retirement and DVA
disability compensation.  If her records were corrected to show she was
awarded a disability rating of less than 30 percent, any severance pay she
received would be recovered prior to her receiving DVA disability
compensation.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 10 May 1996; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 9 May 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

__klw___  __ded___  __qas___  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.




                                  __Kenneth L. Wright___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050006834                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060110                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |108.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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