RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  15 March 2007
	DOCKET NUMBER:  AR20060011199 


	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.



	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, medical retirement. 

2.  The applicant states he was sent to the Persian Gulf for Operation Desert Storm while he held a physical profile.  He re-injured his ankle during training for the run-up to Operation Desert Storm and was sent to a medical board.  He states this annoyed his commanders who threatened him with UCMJ (Uniform Code of Military Justice) action.

3.  The applicant states that, with 16 years of service, he should have been medically retired or given a less strenuous job until he became retirement eligible.  He believes this did not happen because of racism; a White NCO (noncommissioned officer) received favorable treatment, but he did not because he is Black.  He adds he was removed from a drug and alcohol program so that his chain of command could process him for discharge; he never received an award for Desert Shield and Desert Storm; and that he was not properly represented by the Disabled American Veterans (DAV).

4.  The applicant states his medical discharge was fraudulently administered.  The Department of Defense and other agencies covered up misdiagnoses and undiagnosed Gulf War illnesses, lost medical records, and "violations of the Nurenburg (sic) Code."

5.  The applicant provides copies of unit correspondence regarding the mobilization of Soldiers who are on profile.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 10 June 1992, the date of his discharge from the Army.  The application submitted in this case is dated 25 July 2006, and received on 8 August 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 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 evidence of record shows the applicant enlisted in the Regular Army on 24 February 1976.  He was trained in, awarded, and served in military occupational specialty (MOS) 11B, Infantryman.

4.  On 28 October 1991, the applicant underwent an MEB.  He was diagnosed with degenerative joint disease, left ankle, mild to moderate; old avulsion fracture of left medial malleolus with fibrous union; and status post repair laceration of left median nerve in 1984, with minimal residual symptoms.  On 29 October 1991, the applicant concurred with the MEB's findings and recommendations.  He was referred to a Physical Evaluation Board (PEB).    

5.  On 27 November 1991, an informal PEB was convened at Fort Sam Houston, Texas.  The PEB found him unfit for military service due to degenerative joint disease, left ankle, mild to moderate, old avulsion fracture of left medial malleolus with fibrous union, rated as 10 percent disabling.  On 6 January 1992, the applicant nonconcurred with the finding and recommendation of the informal PEB and demanded a formal PEB.

6.  On 27 January 1992, the applicant requested his physician provide an addendum to his MEB findings clarifying his physical findings.  The physician reported that a review of his previous operative findings and x-rays indicated that the degree of degenerative joint disease of the left ankle would best be categorized as moderate.  The applicant concurred with the medical addendum. 

7.  On 1 April 1992, the applicant appeared before a formal PEB with counsel from the DAV.  The transcript from the formal hearing was available for the Board's review.  The applicant and his DAV counsel provided testimony.  His counsel provided substantial argument in support of retaining the applicant until retirement in view of his 16 years of service as well as the inequity of discharging him with severance pay.  He urged that the PEB find him fit for duty and reclassified in a job in line with his profile.

8.  The PEB found the applicant unfit for duty due to degenerative joint disease, left ankle, old avulsion fracture of left medial malleolus with fibrous union, rated as moderate, 20 percent disabling.  

9.  On 6 April 1992, the applicant appealed the formal PEB.  He indicated that he believed at least one noncommissioned officer should have been included as a board member, preferably one who was injured and on profile.  He further indicated that commissioned officers have discriminated against infantry enlisted combat arms Soldiers for years, especially when an injury keeps them from performing the strenuous activities required in the field.  He contended that even after his MEB he remained in Saudi Arabia performing within the limits of his profile; therefore, since he remained in a combat area while on profile, he should be allowed to remain on active duty to complete 4 years for retirement, or be medically retired.

10.  On 15 April 1992, the applicant's rebuttal was considered and denied by the President of the PEB.  He indicated that the applicant failed to provide new objective medical evidence; that if he had wanted an NCO on his board, he could have requested one.  He also pointed out that the President of his board was once a sergeant who served in the infantry in Vietnam.  

11.  On 20 May 1992, the U.S. Army Physical Disability Agency approved the PEB's findings.

12.  The applicant was honorably discharged by reason of a physical disability with severance pay on 10 June 1992.  He was credited with 16 years, 3 months, and 16 days of active duty service.  He received $42,055.20 in severance pay.

13.  Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) according to the provisions of Title 10, United States Code (USC) , Chapter 61, (10 USC 61) and Department of Defense Directive (DODD) 1332.18.  It 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.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.

14.  PEBs are established to evaluate all cases of physical disability, equitability for the Soldier and the Army.  It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendations to establish eligibility of a Soldier to be separated or retired because of physical disability.

15.  Title 10, United States Code, 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.


DISCUSSION AND CONCLUSIONS:

1.  The medical evidence of record supports the determination that the applicant's unfitting conditions were properly diagnosed and that his disability was properly rated.  His separation with severance pay was in compliance with law and regulation.

2.  The applicant's contentions, now, over nearly 15 years after his discharge, do not demonstrate error or injustice in the disability rating assigned by the Army, nor error or injustice in the disposition of his case by his separation from the service.  Noted is the fact that the informal PEB initially recommended that he be awarded a 10 percent disability for his unfitting condition; however, after reviewing the medical addendum provided by his physician, the formal PEB increased his rating to 20 percent disabling.

3.  There is no evidence that the DAV counsel did not provide adequate representation, nor did the applicant raise this as part of his rebuttal to the formal PEB.  

4.  There is no evidence that the applicant was threatened with UCMJ action or removed from a drug or alcohol treatment program.  There is no evidence of record to support the applicant's contention of racial discrimination.  The applicant's case was handled in accordance with Army regulations and policies regarding Soldier's identified for processing through the physical disability system.

5.  There is no evidence that the applicant's medical discharge was fraudulently administered based on a cover-up by Department of Defense regarding undiagnosed illnesses associated with the Gulf War.  The applicant's unfitting condition was diagnosed.

6.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.  Therefore, there is no basis to grant the applicant a medical retirement.

7.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 10 June 1992; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 9 June 1995.  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

__mkp___  __lwr___  __reb___  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.



						Margaret K. Patterson
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20060011199
SUFFIX

RECON

DATE BOARDED
20070315
TYPE OF DISCHARGE
(HD)
DATE OF DISCHARGE
19920610
DISCHARGE AUTHORITY
AR 635-200, Chap 4
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
144.3100
2.

3.

4.

5.

6.