RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            8 November 2005
      DOCKET NUMBER:   AR20050009808


      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. Stanley Kelley                |     |Chairperson          |
|     |Ms. Diane J. Armstrong            |     |Member               |
|     |Ms. Delia R. Trimble              |     |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, through a court remand, reconsideration of his
request to change his separation by reason of unqualified resignation to a
physical disability separation.

2.  The U. S. District Court for the District of Columbia noted the
applicant had alleged that the Army Board for Correction of Military
Records (ABCMR) had improperly found that his application was untimely
filed.  In the alternative, he alleged that even if his application was
untimely filed, the ABCMR had improperly failed to excuse the untimely
filing.

3.  First, the Court found, under the rule that states the statute of
limitations runs once a competent board is requested and denied, that a
Medical Evaluation Board (MEB) is a competent board, and its refusing to
convene is sufficient to start the clock on the statute of limitations.

4.  Second, the Court noted the applicant argued that the history of his
medical evaluations shows that he was not properly apprised of the duration
or seriousness of his injuries at the time of his separation from active
duty.  Where a servicemember is not made aware of the true nature of his
condition, the statute of limitations will not begin to run until such time
as he discovers the error.  The Court recognized that McFarlane v.
Secretary of the Air Force, 867 F. Supp. 405, 411 (E.D. Va. 1994) counsels
that the date of discovery should be the actual date, and not the date at
which a hypothetical "reasonable person" would have discovered the error or
injustice.  Nevertheless, that does not mean that the actual date of
discovery is whenever a plaintiff says it is.  In this particular case, the
Court noted that it appears the applicant understood his own injuries to be
disabling soon after his discharge from the Army when he sought evaluation
for disability benefits from the Veterans Administration (VA).  He was
found unfit for duty of any kind in the U. S. Army Reserve (USAR) in 1982.
However, he filed no request for correction of his active duty records
until 1988, more than three years after discovery of the error or
injustice.

5.  Third, the applicant argued that, because the Army itself reopened his
case in 1985 – 1986, the statute of limitations began to run instead upon
the 1986 denial of a Physical Evaluation Board (PEB).  The Court noted
there was little available case law on the issue but also noted that it
would appear the applicant's case would not fall among those already
embraced by the "reopening" doctrine.  There remained the question of
whether the doctrine should be extended to cases like the applicant's,
where on the basis of the same injury, the "same service" (i.e, the USAR
and the Active Army) comes to different conclusions regarding fitness.
6.  The Court thought not.  The Court found that the "reopening" doctrine
espoused in those few cases is nothing more than a twist on the statutory
    rule that the servicemember's claim accrues from the time of discovery.
 When later-overturned regulations initially prevent a servicemember from
receiving benefits, the ABCMR's statute of limitations will not begin to
run until the regulatory change is made because, until then, there can be
no error or injury to discover.  In the applicant's case, the error or
injury was clear to him long before his 1988 filing with the ABCMR so it
did not require the changing of a regulation to make apparent the
possibility of error or injury.

7.  Having found that the applicant's claim was untimely filed, the Court
then considered whether the ABCMR acted properly in refusing to waive the
untimely filing.  The interest of justice analysis requires the ABCMR to
make a "cursory review" of the merits of the case in order to decide
whether the gravity of the harm alleged justifies overlooking the untimely
filing.

8.  The applicant argued before the Court that the language of the ABCMR
determination lent credence to the notion that the ABCMR went beyond a
"cursory review" of the merits and conducted a full review of the merits in
his case.  He also argued that the ABCMR's determination relied on factual
statements that were shown to be wholly erroneous when checked against the
record.

9.  The Court noted that, where the ABCMR goes beyond a cursory review and
conducts a full review of the merits, the ABCMR will be considered to have
waived the failure to timely file.  Were this not the case, the statute of
limitations would be rendered a nullity.  Rather than relying on the
Defendant's briefs, the Court looked to the ABCMR's determination to
evaluate whether a full review was conducted.

10.  The Court noted that in the original consideration of the applicant's
case the ABCMR determination began with a statement regarding the requested
relief.  There was then a two-and-a half page statement of facts, followed
by a discussion and determination comprising four sentences.  The Court
found it would be difficult to conclude that a full review of the merits of
the applicant's substantive injury claim had been conducted based on that
original determination.

11.  The Court noted that the ABCMR's reconsideration determination omitted
a statement of facts but briefly recounted new information submitted by the
applicant.  The discussion section was lengthier than in the original
determination, consisting of seven numbered paragraphs treating various
aspects of the applicant's case.  However, certain facts cited by the ABCMR
in its discussion section appeared to be completely unsupported by the
record.  For example, the first numbered paragraph noted the applicant was
found fit by a PEB.  However, the record clearly shows that at no time was
he ever evaluated by a PEB.

12.  The Court found that, given the brevity of the ABCMR's determination
and its apparent errors, the Court could not determine that a full review
of the merits had been conducted.  While the boilerplate language employed
in the determination suggested that such a review did occur, the
determination's own treatment of the applicant's case belied those
statements.  The record was over two-hundred pages; the discussion portion
of both the ABCMR's original and reconsideration determinations combined
amounted to less than a page and a half.  Were a full review conducted, the
Court would have expected a longer and more detailed determination.  (Were
the Court to find that a full review had been conducted, the Court would
have remanded the ABCMR's decision issued for failure to base it upon
substantial evidence.)

13.  Nevertheless, the Court found that the ABCMR's decision must be
remanded if it appeared that the determination was based on wholly
erroneous facts.  The review of the merits undertaken pursuant to the
interest of justice is to be cursory but not obviously incorrect.  While
the applicant's claim was untimely filed, the ABCMR, in relying on mistaken
facts in making its determination not to waive the requirement of timely
filing, violated the standard that an agency's determinations not be
arbitrary or capricious.  Accordingly, the applicant's case was remanded to
the ABCMR for further proceedings consistent with that opinion.

CONSIDERATION OF EVIDENCE:

1.  The applicant was commissioned a second lieutenant upon graduation from
West Point on 9 June 1971 and entered active duty on that date.  He
completed the Armor Officer Basic Course and performed duties as an armor
platoon leader.  He completed flight training in 1973 and thereafter
performed duties as a helicopter pilot.

2.  On 5 December 1975, the applicant suffered injuries to his back in a
helicopter training accident.

3.  On 14 July 1976, the applicant completed a Class II flight physical and
was found to be qualified for Class II flight duty with a physical profile
of 111111.  The Standard Form 88 (Report of Medical Examination) noted his
rotorcraft accident of 5 December 1975 with back injury but also noted he
had no sequelae at present, had full back motion, and had no profiles.

4.  The applicant's Officer Evaluation Reports are not available.  His DA
Form 2-1 (Personnel Qualification Record Part II) shows that he performed
duties as the    S-3 (operations officer) Air for an armor battalion in
Germany from 6 January 1976 through 3 January 1977.  He was assigned as a
company commander with that armor battalion on 4 January 1977.

5.  On 15 July 1977, the applicant's commander requested the applicant be
given a medical evaluation to determine his physical fitness for retention
on active duty, as he had had several accidents which could have physically
impaired his ability to perform his duties.

6.  On 1 September 1977, an MEB found the applicant to have the following
diagnoses:  (1)  compression fracture L1, mild, no nerve or artery
involvement; (2) compression fracture L2, no nerve or artery involvement;
(3) traumatic arthritis, medial compartments, right and left knee; (4)
traumatic arthritis, tibiotalar joint, right and left ankle, mild; and (5)
adult adjustment reaction to stress.  The MEB noted the applicant had a
right medial meniscectomy in January 1968 and a left medial meniscectomy in
November 1973.  A physical examination of his back, knees and ankles
revealed that they had normal range of motor and function.  The applicant
was found fit for duty without a physical profile.  He did not concur with
the findings and submitted a rebuttal statement.

7.  The applicant's DA Form 2-1 shows that he was transferred to the U. S.
Military Community Activity, Illesheim, Germany on 14 September 1977 and
performed duties as the Chief, Illesheim Community Drug and Alcohol Abuse
Center (an Adjutant General Corps officer position).

8.  On 28 October 1977, the applicant underwent a Class II flight physical.
 He listed his present health on the Standard Form 93 (Report of Medical
History) as "excellent" but noted he had swollen or painful joints;
arthritis, rheumatism, or bursitis; recurrent back pain; and a "trick" or
locked knee.

9.  On 3 March 1978, the applicant requested that he be granted an overseas
separation apparently in conjunction with a request for an unqualified
resignation. The 23 May 1978 approval of his request for an unqualified
resignation indicated that he had requested a Reserve appointment.

10.  On 15 August 1978, the applicant underwent a separation physical
examination.  A medical board was recommended to determine the extent of
his disability from service-connected orthopedic injuries.  On 1 September
1978, an orthopedic consult stated, "X-rays show no significant
deterioration.  No new complaints.  Continues to have intermittent
complaints of pain from his left knee and back.  New board not required and
patient is qualified for separation."  He was assigned a separation
physical profile of 313111.

11.  On 2 September 1978, the applicant was honorably discharged for
miscellaneous individual reasons (unqualified resignation).  He accepted an
Army Reserve appointment and was transferred to the Individual Ready
Reserve.

12.  A VA Rating Decision dated 24 March 1981 shows the applicant was
assigned a combined service-connected disability rating of 20 percent
(compression fracture L-1, 10 percent; post-operative residual of left
medial meniscectomy, 10 percent; and post-operative residual of right
medial meniscectomy, zero percent) effective from 3 September 1978.

13.  A Standard Form 88, date of examination 7 June 1982, indicated the
applicant was found not qualified for duty in the USAR by reason of a
history      of meniscectomy of the right knee and compression fracture to
L1 and L2 with     a physical profile of 313111.  A Standard Form 88, date
of examination             28 September 1982, indicated the applicant
completed a Class II flight examination on that date and was found not
qualified for return to flying status with a physical profile of 111111.

14.  On 28 September 1982 and on 22 September 1983, the applicant underwent
a Class II flight physical for the purpose of returning to flight status.
He was found not qualified in both instances to return to flying status
because of symptomatic back pain due to compression fractures to L1 and L2
and degenerative joint disease of both knees.  The 1983 Standard Form 88
listed a physical profile of 111111.

15.  On 8 January 1985, the U. S. Army Reserve Personnel Center (ARPERCEN)
Command Surgeon recommended to the U. S. Army Aeromedical Center, Fort
Rucker, AL that the applicant be indefinitely suspended from flying status
because of his medical conditions.  The ARPERCEN Command Surgeon commented
that, except for the 1982 and 1983 physicals, the applicant had been
essentially in a limbo status, assigned to ARPERCEN as an aviator but not
cleared for flying status.

16.  In a 25 January 1985 letter to the U. S. Army Military Personnel
Center, the Director, Army Aeromedical Center noted the applicant did not
meet the medical fitness standards for Class II flying duties due to a
history of compression fracture, L1 which remained symptomatic.  The
Director recommended he be medically disqualified for further aviation
service.

17.  Orders dated 14 February 1985 terminated the applicant's aviation
service and entitlement to Aviation Career Incentive Pay.

18.  A Standard Form 88 dated 26 September 1985 indicated the applicant
underwent an examination for the purpose of "retention medical exam
orthopedic consult."  Item 77 indicated he was not qualified for retention;
however, item 76 indicated his physical profile was 111111.

19.  An MEB Narrative Summary dated 5 June 1986 noted the applicant's chief
complaint as low back pain, with a secondary complaint of bilateral knee
pain, left greater than right.  The MEB found the applicant unfit for duty
with diagnoses of (1) compression fracture, L1 and L2, without neurologic
deficit; (2) chronic low back pain secondary to diagnosis 1; (3) medial
meniscectomy with mild sequelae, right knee; (4) medial collateral ligament
rupture with repair and medial meniscectomy, with sequelae; (5) thyroid
cancer, civilian sector; (6) bilateral ankle sprains; (7) mononucleosis by
history; (8) and degenerative joint disease, both knees, mild.  The MEB
referred the applicant to a PEB.  On 15 August 1986, the applicant agreed
with the MEB's findings and recommendation.

20.  Effective 16 August 1986, the applicant was honorably discharged from
the USAR and all Reserve of the Army and Army of the United States
appointments were terminated.

21.  In a letter dated 9 October 1986, the U. S. Army Physical Evaluation
Board (USAPEB) returned the applicant's MEB proceedings to Patterson Army
Community Hospital.  The USAPEB noted that the applicant's case was not
eligible for processing under the Army's physical disability system.  It
stated that a review of the MEB Narrative Summary dated 5 June 1986
indicated that, with the exception of his thyroid cancer, all other
conditions listed in the MEB were a direct result of his active service.
The USAPEB also observed the MEB Narrative Summary also noted that earlier
MEB proceedings conducted on       30 August 1977 resulted in his being
found fit for duty without profile.  The USAPEB found that, although the
existing medical conditions were service incurred, that alone did not
qualify him for physical disability processing.  Additionally, he had not
performed duty in accordance with paragraphs 8-2a and 8-2b of Army
Regulation 635-40 during his tenure as a member of the Reserve Components.
Therefore, the USAPEB concluded there was no service aggravation, which
would normally allow him to be processed under the regulatory guidelines.

22.  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 current version states the unfitness must be of
such a degree that a Soldier is unable to perform the duties of his or her
office, grade, rank, or rating in a way that would reasonably fulfill the
purposes of his or her employment on active duty.  In pertinent part, it
states that the mere presence of an impairment does not, of itself, justify
a finding of unfitness because of physical disability.  In each case, it is
necessary to compare the nature and degree of physical disability present
with the requirements of the duties the Soldier reasonably may be expected
to perform because of his or her office or grade.  It also states that a
lack of special skills in demand or the inability to meet physical
standards established for specialist duty such as flying does not, in
itself, establish eligibility for disability separation or retirement.

23.  Army Regulation 635-40, the version in effect at the time (dated 25
February 1975), also stated that the mere presence of an impairment did
not, of itself, justify a finding of unfitness because of physical
disability.  It also stated that the lack of a special skill in demand or
the inability to physically qualify for specialized duties requiring a high
degree of physical fitness were not to be used as a basis for determining
unfitness because of physical disability.

24.  Army Regulation 635-40, in pertinent part, states that MEBs are
convened to document a Soldier's medical status and duty limitations
insofar as duty is affected by the Soldier's status.  A decision is made as
to the Soldier's medical qualification for retention based on the criteria
in Army Regulation 40-501, chapter 3.  If the MEB determines the Soldier
does not meet retention standards, the MEB will recommend referral of the
Soldier to a PEB.

25.  Army Regulation 635-40, chapter 8 outlines the rules for processing
through the disability system Soldiers of the Reserve components who are on
active duty for a period of less than 30 days or on inactive duty training.


26.  Army Regulation 40-501 (Standards of Medical Fitness), chapter 7,
physical profiling, states that the basic purpose of the physical profile
serial system is to provide an index to the overall functional capacity of
an individual.  It is used to assist the unit commander and personnel
officer in their determination of what duty assignments the individual is
capable of performing, and if reclassification action is warranted.  Four
numerical designations (1 - 4) are used to reflect different levels of
functional capacity in six factors (PULHES): P-physical capacity or
stamina, U-upper extremities, L-lower extremities, H-hearing and ears, E-
eyes, and S-psychiatric.  Numerical designator "1" under all factors
indicates that an individual is considered to possess a high level of
medical fitness and, consequently, is medically fit for any military
assignment.  A physical profile of "2" under any or all factors indicates
that an individual possesses some medical condition or physical defect
which may require some activity limitations.  A profile containing one or
more numerical designations of "3" signifies that the individual has one or
more medical conditions or physical defects which may require significant
limitations.  The individual should receive assignment commensurate with
his or her physical capability for military duty.

27.  Army Regulation 40-501, chapter 2 prescribes medical fitness standards
for enlistment, appointment, and induction.  Chapter 3 prescribes medical
fitness standards for retention and separation.  Chapter 4 prescribes
medical fitness standards for flying duty.

28.  Army Regulation 40-501, chapter 4, in the paragraphs dealing with the
extremities and the spine, lists several conditions found in chapter 2 that
are causes for medical unfitness for flying duty.  No conditions found in
chapter 3 are causes for medical unfitness for flying duty.  However,
chapter 3, in the paragraph dealing with the lower extremities, lists
internal derangement of the knee, when there is residual instability
following remedial measures, if more than moderate in degree or if
complicated by arthritis, as a reason for referral to an MEB.  Joint ranges
of motion when inhibited to the listed degrees are reasons for referral to
an MEB.  Arthritis due to trauma, when surgical treatment fails and there
is functional impairment of the involved joints so as to preclude the
satisfactory performance of duty, is a reason for referral to an MEB.

29.  The Department of Veterans Affairs Schedule for Rating Disabilities
(VASRD) is the standard under which percentage rating decisions are to be
made for disabled military personnel.  The VASRD is primarily used as a
guide for evaluating disabilities resulting from all types of diseases and
injuries encountered as a result of, or incident to, military service.
Unlike the VA, the Army must first determine whether or not a Soldier is
fit to reasonably perform the duties of his or her office, grade, rank, or
rating.

30.  Title 38, U. S. 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.

31.  Army Regulation 614-100 prescribes policies pertaining to the
assignment, reassignment, details, and transfers of officers between
commands, units, branches, specialties, and components of the Active Army
or between Services.  In pertinent part, it states that involuntary branch
transfer actions may be initiated for reasons such as failure of aviators
to maintain physical or technical proficiency.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was a commissioned officer aviator when he was involved
in a helicopter accident in December 1975.  His Officer Evaluation Reports
are not available, but it appears he may have continued actively flying at
least through     3 January 1977 (when he performed duties as S-3 Air for
an armor battalion).  He may or may not have continued actively flying
after he was assigned duties as an armor company commander on 4 January
1977.

2.  The first available evidence of record to indicate there were questions
concerning the applicant's ability to remain on flying status is dated 15
July 1977, when his commander requested the applicant be given a medical
evaluation to determine his physical fitness for retention on active duty
as he had had several accidents which could have physically impaired his
ability to perform his duties.

3.  Accordingly, an MEB convened and on 1 September 1977 found the
applicant to be fit for duty.  Given the medical evidence of record, it
appears the MEB made a proper decision.  A physical examination of his
back, knees, and ankles revealed that they had normal range of motor and
function.  It appears the applicant did not meet the medical fitness
standards for flying duty at that time; however, the MEB's mission was to
determine the applicant's fitness for retention in the Army under the
provisions of chapter 3 of Army Regulation 40-501, not retention on flying
status under the provisions of chapter 4 of that regulation.

4.  It appears that after the MEB was completed action should have been
taken to terminate the applicant's flying status.  He no longer performed
flying duties; instead he performed administrative duties from 14 September
1977 until his voluntary separation when he requested unqualified
resignation.  It appears he would have been qualified for a branch transfer
to the Adjutant General Corps even if he was no longer qualified for
transfer back to the Armor branch.  The Army invested much time and expense
not only in training the applicant to be a pilot but also in training him
to be a leader.  There is little sense in losing the leadership skills of
an officer simply because he can no longer exercise the more rigorous
physical skills required of a pilot.

5.  In addition, it appears the applicant himself did not feel his skills
should be totally lost to the Army.  When he requested unqualified
resignation, he no longer had a service obligation to the Army.  His
request for unqualified resignation would normally have resulted in a
straight discharge with no further obligation to the Armed Forces.
However, he requested transfer to the USAR Individual Ready Reserve.  In
that status, he may not have been required to perform military duties on a
regular basis, but he should have known that he was liable for call-up
should a national emergency arise.  It appears he must have felt he was
physically fit to perform those duties should the need for his call-up
arise.

6.  When the applicant underwent a separation physical examination on
     15 August 1978, the doctor conducting the examination recommended a
medical board to determine the extent of his disability from service-
connected orthopedic injuries.  However, x-rays showed no significant
deterioration and no new complaints.  With no change in his condition
noted, it appears that a proper decision was made not to convene a new MEB.

7.  It is acknowledged that a VA Rating Decision dated 24 March 1981 shows
the applicant was assigned a 10 percent disability rating for a compression
fracture L-1 and a 10 percent disability rating for post-operative residual
of left medial meniscectomy.  However, the rating action by the VA does not
necessarily demonstrate an error or injustice on the part of the Army.  The
VA, operating under its own policies and regulations, assigns disability
ratings as it sees fit.  The VA is not required by law to determine medical
unfitness for further military service in awarding a disability rating,
only to determine whether a medical condition reduces or impairs the social
or industrial adaptability of the individual concerned. Consequently, due
to the two concepts involved (i.e., the more stringent standard by which a
Soldier is determined not to be medically fit for duty versus the standard
by which a civilian would be determined to be socially or industrially
impaired), an individual’s medical condition may be rated by the VA at one
level, while the Army may have determined he was fit for duty.

8.  It is acknowledged that a Standard Form 88, date of examination 7 June
1982, indicated the applicant was found not qualified for duty in the USAR
by reason of a history of meniscectomy of the right knee and compression
fracture to L1 and L2 with a physical profile of 313111.

9.  However, taken into context with the totality of the applicant's
medical history, it appears the 7 June 1982 Standard Form 88 erroneously
found him to be not qualified for duty in the USAR and most likely was
intended to mean he was not qualified for flying status.  That is the most
reasonable interpretation of the entry given that only three months later,
on 28 September 1982, the applicant took yet another Class II flight
physical.  He took one yet again, on 22 September 1983.  Questions arise as
to who was requesting the applicant take those Class II flight physicals
and why the applicant was taking them if he believed himself to be
physically unfit for retention (much less fit for flying duties).

10.  No doubt confusion was generated by the fact some physical
examinations determined the applicant's physical profile to be 111111 yet
others determined it to be 313111, going back and forth between 111111 and
313111.  Still, however, the profiles containing numerical designations of
"3" signified only that the applicant had one or more medical conditions
which might require significant limitations and he should have received
assignment commensurate with his physical capability for military duty.
That happened.  The applicant was eventually terminated from flight status.


11.  What did not happen was the next step which was to transfer him to a
branch whose normal duty requirements would have been within his physical
capabilities of performing.  By 1986, however, it might have been too late
for a transfer; and, since he had never performed active duty or inactive
duty for training while in the USAR, he was not eligible for physical
disability processing at that time.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__sk____  __dja___  __drt___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




            __Stanley Kelley______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050009808                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051108                                |
|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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