RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            1 August 2006
      DOCKET NUMBER:   AR20060001711


      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             |
|     |Mr. Jessie B. Strickland          |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Kathleen Newman               |     |Chairperson          |
|     |Mr. Conrad V. Meyer               |     |Member               |
|     |Ms. Yolanda Maldonado             |     |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 his honorable discharge be corrected to
reflect that he was discharged by reason of physical disability.

2.  The applicant states that he was suffering from major injuries while he
was serving in the Army and believes that he should have been discharged by
reason of physical disabilities.  He also states that he currently has a
30% disability rating from the Department of Veterans Affairs (VA) and is
still suffering from his injuries.  He continues by stating that he was
young and confused at the time about how to go about requesting a
disability separation and went to the wrong kind of people for the
information.

3.  The applicant provides copies of documents from his medical records,
his VA Rating Decision and a copy of his report of separation (DD Form
214).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 21 July 1993.  The application submitted in this case is dated
9 December 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 was born on 26 August 1968 and enlisted in Jacksonville,
Florida on 23 February 1989 for a period of 4 years.  On 26 February 1989,
while at the reception station, he complained of having right knee
problems, indicated that he felt a crunch when he squatted down and that he
first noticed the condition 3 or 4 years prior, while playing football.  He
completed his one-station unit training (OSUT) at Fort Hood, Texas and was
transferred to Fort Sill, Oklahoma, for assignment to the 18th Field
Artillery Regiment.

4.  On 15 July 1989, the applicant injured his left knee while playing
basketball.  He underwent surgery on 19 July 1989 for repair of the medial
and lateral retinaculum – left knee and repair of left patellar tendon.  He
was subsequently placed on convalescent leave for 30 days.

5.  The applicant was awarded the Army Achievement Medal (AAM) for the
period of 12 June 1989 to 2 June 1990 and was transferred to Germany on
1 July 1990.  He was assigned to the 35th Field Artillery Regiment and was
advanced to the pay grade of E-4 on 1 April 1991.

6.  He was awarded an AAM for the period of 1 July 1990 to 15 January 1992
for his exceptional performance of duty as an ammunition carrier driver and
handler. He departed Germany on 15 March 1992 and was transferred back to
the 18th Field Artillery Regiment at Fort Sill.

7.  On 27 October 1992, the applicant was seen at the troop medical clinic
after being kicked in the lower right leg while playing football.  It
appears that his leg was fractured.

8.  On 25 January 1993, the Medical Department Activity (MEDDAC) commander
submitted an application to retain the applicant on active duty beyond his
scheduled release date due to the applicant having a badly fractured leg.
The commander indicated that the applicant was in a cast and would require
treatment beyond his expiration of term of service (ETS) date.  He
requested that the applicant be held for an additional 90 days.

9.  The request for retention was approved on 1 February 1993 and on 26
April 1993, another request for an additional 60 days was submitted and on
28 April 1993, the request for an additional 60 days was granted for the
purpose of completing follow-up treatment and evaluation.

10.  On 18 May 1993, the applicant was awarded the AAM for the period of
12 March 1992 to 22 May 1993 for his meritorious service and exemplary
performance as a cannon crewman and driver.

11.  On 21 July 1993, he was honorably released from active duty due to the
expiration of his term of service.  He had served 4 years, 4 months and 29
days of total active service.  He was transferred to the United States Army
Reserve (USAR) Control Group (Reinforcement) to complete his statutory
service obligation.  He was honorably discharged from the USAR on 10
December 1996.

12.  The applicant’s final medical/physical examination is not present in
the available records.

13.  On 9 September 2002, the applicant submitted a claim for service-
connected compensation to the VA.  The VA granted him a 10% disability
rating for “degenerative joint disease with limitation of motion, residuals
of left patellar tendon repair.”

14.  Army Regulation 635-40, in pertinent part, provides that when a member
is being separated by reasons other than physical disability, his continued
performance of duty creates a presumption of fitness which can be overcome
only by clear and convincing evidence that he was unable to perform his
duties or that acute grave illness or injury or other deterioration of
physical condition, occurring prior to or coincident with separation,
rendered the member unfit.

15.  There is a difference between the VA and the Army disability systems.
While both the VA and the Army use the VA Schedule for Rating Disabilities
(VASRD) to determine percentage ratings, not all of the general policies
set forth in the VASRD apply to the Army; thus there are sometimes
differences in ratings. The Army's determination of a soldier's fitness or
unfitness is a factual finding based on the individual's ability to perform
the duties of his grade, rank, or rating. If the soldier is found to be
physically unfit, a disability rating is awarded by the Army and is
permanent in nature.  The Army system requires that the soldier only be
rated as the condition(s) exist(s) at the time of the physical evaluation
board hearing.  The VA may find a soldier unfit by reason of service
connected disability and may even initially assign a higher rating.  The
VA's ratings are based on an individual's ability to gain employment as a
civilian and may fluctuate within a period of time depending upon the
changes in the disability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant has failed to show through the evidence submitted or the
evidence of record that he was medically/physically unfit at the time of
separation and should have been processed for separation due to physical
disability.
Accordingly, he was properly discharged under the provisions of Army
Regulation 635-200, chapter 4, due to ETS.

2.  Although the final physical/medical examination is not present in the
available records, it is reasonable to presume given the efforts by medical
personnel to retain him past his ETS for recovery and evaluation, that the
applicant was found to be fit for separation.

3.  The fact that the VA in its discretion has awarded the applicant a
disability rating does not establish physical unfitness, of any degree
thereof for Department of the Army purposes.  Each agency/department is
bound to operate within its own rules, regulations and policies.  The
granting of a compensable award by one agency is not tantamount to a
lesser, equal or more enhanced award by the other agency.

5.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 21 July 1993; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
20 July 1996.  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

__CVM__  __YM____  __KAN__  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.

                                  _____K. A.  Newman_____________
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20060001711                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060801                                |
|TYPE OF DISCHARGE       |(HD)                                    |
|DATE OF DISCHARGE       |19930721                                |
|DISCHARGE AUTHORITY     |AR 635-200, Ch 4                        |
|DISCHARGE REASON        |REFRAD / ETS                            |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |177/pd                                  |
|1.108.0000              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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