RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        29 March 2007
      DOCKET NUMBER:  AR20060012609


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

      The following members, a quorum, were present:

|     |Mr. Lester Echols                 |     |Chairperson          |
|     |Ms. Linda M. Barker               |     |Member               |
|     |Mr. Michael J. Flynn              |     |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 release from active duty by reason of
other than physical disability be changed to a medical retirement.

2.  The applicant states the Veterans’ Board of Appeal recently established
that his injury was incurred during his term of active duty; therefore, he
should have been discharged for medical reasons.  Also, a medical review
board was mandatory, but he was never referred to it.  He believes he
deserves a medical discharge and benefits including a permanent military
identification card.

3.  The applicant provides  active duty orders dated 15 January 1991; a
Standard Form 600 (Chronological Record of Medical Care) date of treatment
31 January 1991; release from active duty orders dated 12 March 1991; a
Compensation and Pension Examination with a cover letter dated 18 July
2006; a 4 November 2005 Department of Veterans Affairs (DVA) Rating
Decision; a Board of Veterans’ Appeals decision dated 19 September 2005; a
DA Form 2173 (Statement of Medical Examination and Duty Status), dated 4
March 1991; and a DD Form 214 (Certificate of Release or Discharge from
Active Duty) for the period ending 15 March 1991.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 15 March 1991.  The application submitted in this case is dated
23 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.  After having served in the Regular Army from 21 November 1979 through
    19 November 1982, the applicant was transferred to the U. S. Army
Reserve (USAR).  He apparently last reenlisted on 23 October 1986 for 6
years, which would have made his expiration of term of service (ETS) 22
October 1992.

4.  On 15 January 1991, the applicant was ordered to active duty, with his
unit, as a Specialist, E-4 in military occupational specialty 88M (Movement
Specialist).

5.  The applicant provided a Standard Form 600 that shows he was seen at
the Orthopedic Clinic on 31 January 1991 with complaints of “both knees
popping out.”  The form indicates the applicant’s right knee problem first
occurred while playing basketball one month previously and his left knee
problem first occurred three months previously while playing basketball.
He was diagnosed with an anterior cruciate ligament (ACL) deficiency in
both knees.

6.  The applicant provided a Compensation and Pension Examination that
indicated he had been placed on profile for knee instability of both sides
on       31 January 1991.

7.  A DA Form 2173 dated 4 March 1991 noted the applicant had knee problems
before he was activated.  The aggravation of the injuries was in the line
of duty, but the injury itself was not in the line of duty.

8.  Orders dated 12 March 1991 released the applicant from active duty, not
by reason of physical disability.  The additional instructions in the
orders indicated he must be referred to a mandatory medical review board.

9.  On 15 March 1991, the applicant was released from active duty after
completing 2 months of creditable active service.  His DD Form 214 for the
period ending 15 March 1991 indicates he had a total of 11 years, 2 months,
and 6 days of total service.

10.  The applicant was apparently discharged from the USAR upon his ETS of
 22 October 1992.

11.  Evidence provided by the applicant indicates the DVA denied service
connection for a bilateral knee disorder in February 1993.  He successfully
appealed and, in September 2005, the Board of Veterans’ Appeals awarded
him a 10 percent evaluation for each knee effective from 29 April 1999 and
a    20 percent evaluation for each knee effective from 24 June 2004.  The
Board of Veterans’ Appeals noted there was no clear and unmistakable
evidence of a bilateral knee disability prior to service [of 15 January
1991] and concluded his bilateral knee disorder began in active military
service.

12.  The National Institutes of Health internet site Medlineplus.gov states
once the ACL tears it does not heal.  It remains loose.  Most ACL tears
occur during sports and fitness activities, such as basketball, football,
soccer, and skiing.  In most cases, the individual must stop physical
activity due to pain or because the knee is no longer stable enough to
support weight.

13.  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.  In pertinent part, it states that under the laws
governing the Army Physical Disability Evaluation System, Soldiers who
sustain or aggravate physically unfitting disabilities must meet several
line of duty criteria to be eligible to receive retirement and severance
pay benefits.  One of the criteria is that the disability must have been
incurred or aggravated while the Soldier was entitled to basic pay or was
the proximate cause of performing active duty or inactive duty training.

14.  Department of Defense Instruction 1332.38 (Physical Disability
Evaluation) defines service aggravation as the permanent worsening of a pre-
Service medical condition over and above the natural progression of the
condition caused by trauma or the nature of Military Service.

15.  Public Law 103-337, dated 5 October 1994, established early reserve
retirement eligibility for Soldiers involuntarily separated from the
Selected Reserve due to physical disability during the period 5 October
1994 through      30 September 1999.  Eligibility was based on a minimum of
15 years of qualifying service toward Reserve Component retirement.  Title
10, U. S. Code, section 12731a(a)(1) was amended to extend the Early
Reserve Retirement Eligibility for Disabled Members to the period beginning
on 23 October 1992 and ending on    1 October 1999 to Soldiers who attained
15 years of retirement eligibility after     1 October 1991.

16.  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.

DISCUSSION AND CONCLUSIONS:

1.  The rating action by the DVA does not necessarily demonstrate an error
or injustice in the Army rating.  The DVA, operating under its own policies
and regulations, assigns disability ratings as it sees fit.

2.  It is acknowledged that the DA Form 2173 indicated the aggravation of
the applicant’s injuries was in the line of duty.  It is acknowledged that
the Board of Veterans’ Appeals noted there was no clear and unmistakable
evidence of a bilateral knee disability prior to his service of 15 January
1991 and concluded his bilateral knee disorder began in active military
service.  However, the Army is not bound by any findings of the DVA.

3.  The applicant provided evidence that indicated he had injured both his
knees while playing basketball shortly before entering active duty on 15
January 1991.  It is reasonable to presume he informed the medical
officials treating him of this history, and he does not contend now that
those remarks were incorrect.  To be eligible to receive retirement and
severance pay benefits a Soldier must meet several line of duty criteria.
One of the criteria is that the disability must have been incurred or
aggravated while the Soldier was entitled to basic pay or was the proximate
cause of performing active duty.

4.  There is no evidence to show the applicant’s performing active duty was
the proximate cause of his injuries and he does not contend so now.
Although there is evidence to show his injuries were aggravated while he
was on active duty, service aggravation is defined as the permanent
worsening of a pre-Service medical condition over and above the natural
progression of the condition.

5.  It is considered medical opinion that once an ACL tears it does not
heal, but it remains loose.  There is insufficient evidence to show the
applicant’s pre-existing knee injuries were permanently aggravated during
the two weeks he was on active duty before he was placed on physical
profile on 31 January 1991.

6.  It is acknowledged that the applicant’s release from active duty orders
indicated a medical review board was mandatory, and there is no evidence to
show he was ever referred to one.  However, there is also no evidence to
show the applicant ever complained about not being referred to a medical
review board.  In addition, there is no evidence of record to show he had
15 years of qualifying service prior to his presumed ETS date of 22 October
1992.  Therefore, he would not have been eligible for an early retirement
under the criteria of Public Law 103-337 (in addition to which it appears
he was separated before the law became effective).

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 15 March 1991; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on         14 March 1994.  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

__le____  __lmb___  __mjf___  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.




                                  ___Lester Echols______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060012609                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070329                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.       |108.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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