RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  1 May 2007
	DOCKET NUMBER:  AR20060009206 


	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. Gerard W. Schwartz

Acting Director

Ms. Antoinette Farley

Analyst

The following members, a quorum, were present:


Mr. Paul M. Smith

Chairperson

Mr. David K. Haasenritter

Member

Mr. Edward E. Montgomery

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  The applicant requests, in effect, that his physical disability discharge be rescinded. 

2.  The applicant states that he was medically separated in April 1998 after being diagnosis with Retorpatellar Pain Syndrome (left knee) under Army Regulation 40-501.3-4(e) (Standard of Medical Fitness).  The applicant contends that he should not have been discharged for this condition.

3.  The applicant states that at the time of his discharge he had been informed that he needed knee replacement.  The applicant further states that he concurred with the U.S. Army about his knee condition which made him unfit for further military duty.

4.  The applicant states that he recently had exploratory surgery which determined his knee was healthy and that he did not need his knee replaced just repaired.  The applicant states that had the condition of his knee been correctly diagnosed when he was in the Army, he would not have been discharged and suffered with 15 years of knee pain.

5.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty, DA Form 3349 (Physical Profile), dated 13 January 1998, Medical Evaluation Board (MEB) Proceedings, dated 15 January 1998; Medical Operative Report, dated 11 October 2005, a memorandum in support for his reinstatement in the service, dated 22 December 2005; and a Biographical Summary, dated 26 December 2005, in support of this case.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an error which occurred on 26 April 1998, the date of his separation from the United States Army Reserves (USAR).  The application submitted in this case is dated 18 May 2006.

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 limitation 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 records are incomplete; however, the available records show he was appointed as a Chief Warrant Officer (CW2) in the USAR as a Pilot and entered active duty on 20 January 1990.  

4.  On 13 January 1998, the applicant underwent a physical profile examination.  The examination determined that the applicant was not qualified for retention and listed left knee retropatellar pain as the disqualifying defect.  The applicant physical therapy assessment shows that he suffered from chronic inflammatory patella synovial bursitis and recommended he be given a permanent profile.  The physical therapy assessment also showed that the applicant was not a surgical candidate.

5.  A MEB was convened at Womack Army Medical Center, Fort Bragg, North Carolina.  The MEB report shows that the applicant had suffered with left knee pain since 1989 and that the pain increased after running both in and out of his boots.  The MEB report shows that the applicant was diagnosed with Retropatellar Pain Syndrome, was sent to physical therapy, treated with Indocin and maintained his profile for most of flight school.  

6.  The MEB report shows that the applicant's pain level was at the point where he had a severe sharp pain when running and became unbearable with each step at approximately 1/2 mile, and also during ruck marching with the pain lasting for two weeks.  The MEB report shows that the applicant acknowledged he could no longer maintain his position in his present military occupational specialty (MOS).  The MEB report shows the applicant when deployed to Bosnia realized that as a member of a two on an Apache helicopter he would be a hindrance to his crew members.  

7.  The MEB report shows that the applicant was able to function as an Apache pilot, but would not be unable to function in a wartime scenario due to his inability to run and ruck marching.  The MEB report shows the applicant admitted when running, ruck marching, sitting, or standing for prolonged periods his pain would worsen.  The MEB report concludes that the applicant was no longer able to perform in his MOS because he is no longer able to do the running and ruck marching expected of a Soldier.  The applicant's MEB does not show that it was recommended that he receive knee replacement surgery.

8.  On 15 January 1998, the applicant concurred with the MEB's findings and recommendations for referral of his case to the PEB for determination of fitness for duty.  

9.  On 9 February 1998, the applicant concurred with the findings of the PEB which found him physically unfit to continue in the military service in his military occupational specialty.  There is no evidence in the applicant's records and the applicant did not provide any evidence that shows the PEB did not consider the applicant a candidate for knee surgery.

10.  XVIII Airborne Corp, Fort Bragg, North Carolina Orders 063-0251, dated 4 March 1998 directed the applicant be separated with severance pay. 

11.  On 26 April 1998, the applicant was honorably separated from active duty under the provisions of paragraph 4-24B(3) of Army Regulation 635-40 (Personnel Separations) by reason of a physical disability with severance pay. The applicant's DD Form 214 shows that he served 8 years, 3 months, and 7 days of net active service this period.  

12.  The applicant's DD Form 214 also shows that based on the separation authority and reason for his separation, he was assigned a separation program designator (SPD) code of JFL for disability, severance pay of zero percent, and an N/A reentry code. 

13.  The applicant submitted an Arizona Orthopedic Surgical Hospital Operative Report, dated 10 November 2005.  The Orthopedic Surgical Report shows that the applicant's preoperative diagnosis was for internal derangement of the left knee based on pain.  

14.  The Postoperative Diagnoses of the applicant's left knee shows contusion, anterior aspect of the medial tibial plateau/anterior to the anterior cruciate ligament, a tear of the posterior horn of the lateral meniscus, grade II chondromalacia of the lateral tibial plateau.

15.  The applicant's Orthopedic Surgical Report also shows that an operation was performed which removed unstable cartilage, noted a radial tear of the far posterior horn of the lateral meniscus, and a partial lateral meniscectomy.  However, the Orthopedic Surgical Report failed to provide a summary which states that the applicant's condition had been incorrectly diagnosed by the Army or that the Army recommended he receive knee replacement surgery.  





16.  The applicant provided a recommendation by a fellow Army National Guard (ARNG) pilot assigned to the Arizona Army National Guard, Army Aviation Support Facility #2, Arizona Army National Guard, Silverbell Army Heliport, Marana, Arizona, dated 22 December 2005.  The recommendation points out that the applicant is physically fit, has a wealth of experience, 1300 hours of flight time, and knowledge as an Instructor Pilot who has flown in Bosnia and Fort Bragg, North Carolina.  The fellow pilot recommends that the applicant be reinstated into military service and the Arizona Army National Guard.  

17.  The applicant provides a three- page Biographical Summary, dated 26 December 2005.

18.  Army Regulation 40-501 (Standards of Medical Fitness) governs the medical fitness standards for retention and separation, including retirement.  Paragraph 1-6 states that medical fitness standards cannot be waived by medical examiners or by the examinee.  Examinees initially reported as medically unacceptable by reason of medical unfitness when the medical fitness in chapter 2, 3, 4, or 5 apply, may request a waiver of the medical fitness standards in accordance with the basic administrative directive governing the personnel action.  

19.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  Paragraph 3-1 contains guidance on the standards of unfitness because of physical disability.  It states, in pertinent part, that the mere presence of 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 their office, grade, rank, or rating.

20.  Paragraph 3-5 of the PDES regulation contains guidance on rating disabilities. It states, in pertinent part, that there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying.  Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.  



DISCUSSION AND CONCLUSIONS:

1.  The applicant's contends that he was incorrectly discharged based on his medical condition and that his physical disability discharge should be rescinded. 

2.  Record shows that the applicant had a MEB which determined he suffered with chronic knee pain (left) which disqualified him for retention in the Army in accordance with Army Regulation 40-501, Chapter 3.  

3.  On 13 January 1998, the applicant concurred with the PEB.  Further, the applicant has not provided any medical documentation which required he receive knee replacement surgery and/ nor does the applicant's MEB/PEB make reference to this type of surgery.  

4.  On 26 April 1998, the applicant was separated from active duty under the provisions of paragraph 4-24b (3) of Army Regulation 635-40 (Personnel Separations) for disability, with severance pay.  The applicant's DD Form 214 shows he was separated with a separation code of "JFL" (Physical Disability-Severance Pay) in accordance with the governing regulation in effect at the time and properly given an RE code of RE-4 or the equivalent entry (N/A).  The RE code of "N/A" issued to the applicant is not waivable and does not allow him to continue Army service.  It was properly given because at that time he was discharged with zero percent severance pay.

5.  Evidence of record confirms the applicant’s separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  

6.  Accordingly, the type of discharge directed and the reason for discharge are appropriate considering all the facts of the case.

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

8.  Based on the foregoing, there is no basis for changing the applicant's discharge by the Army in this case.  


9.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 26 April 1998; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 26 April 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

__PMS__  _EEM_ _  __DKH___  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.




_Paul M. Smith____
          CHAIRPERSON




INDEX

CASE ID
AR20060009206
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.