RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        7 June 2007
      DOCKET NUMBER:  AR20060016178


      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      |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Carmen Duncan                 |     |Chairperson          |
|     |Mr. Michael J. Flynn              |     |Member               |
|     |Mr. Jeffrey C. Redmann            |     |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, correction of the authority and
reason for his separation and that he be awarded the Army Good Conduct
Medal (AGCM).

2.  The applicant states, in effect, that he has recently become aware that
a complete copy of his Physical Evaluation Board (PEB) proceedings were not
available when he first requested that the authority and reason and
authority for his separation be changed to show he was separated due to a
physical disability he incurred in the line of duty and not based on a
medical condition that existed prior to service (EPTS).  He further states
that by regulation, if he had been separated for a physical disability he
had incurred in the line of duty, he would have been entitled to the AGCM.
He states that he believes his injuries were incurred in the line of duty
and the Department of Veterans Affairs (VA) Rating Decision issued in 2002
corroborates this.

3.  The applicant provides the following documents in support of his
application:  Separation Document (DD Form 214); Correction to DD Form 214
(DD Form 215); VA Disability Rating Decision; and AGCM Guidance Extract.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 14 March 2002, the date of his separation.  The
application submitted in this case is dated 21 November 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 applicant's record shows he enlisted in the Regular Army and
entered active duty on 28 June 2001.  On 26 February 2002, while he was
assigned to a training unit at Fort Benning, Georgia, a Medical Evaluation
Board (MEB) was convened to consider his case.  The MEB proceedings
indicated the applicant had been experiencing knee pain for three months,
and that he had been experiencing knee problems since the age of 14.
4.  The MEB also found the applicant's knee condition existed prior to
service and was not incurred while he was entitled to base pay.  The MEB
further determined his knee condition had not been permanently aggravated
by service. The MEB recommended the applicant be separated from service
under the provisions of Chapter 5, Army Regulation 635-40, and indicated
the applicant did not desire to continue on active duty.

5.  On 27 February 2002, the MEB findings and recommendations were approved
by proper authority, and on 28 February 2002, the applicant agreed with the
MEB's findings and recommendations and elected not to submit an appeal.

6.  The applicant's separation under the provisions of paragraph 5-4, Army
Regulation 635-40 was approved by the separation authority and on 14 March
2002, the applicant was discharged accordingly.

7.  The DD Form 214 issued to the applicant upon his separation on 14 March
2002, as amended in a DD Form 215 issued on 13 October 2006, shows he
completed a total of 8 months and 17 days of active military service, and
that he received the National Defense Service Medal and Global War on
Terrorism Service Medal.  Item 25 (Separation Authority) shows he was
separated under the provisions of chapter 5, Army Regulation 635-40 and
Item 28 (Narrative Reason for Separation) shows the reason for his
discharge was Disability, Existed Prior to Service-Medical Board.  The
applicant authenticated this document with his signature on the date of his
separation.

8.  The applicant provides a VA Rating Decision, dated 6 February 2003,
which granted the applicant service connection for chondromalacia and
separate
10 percent ratings would be granted for the left and right knees.  The VA
indicates service connection with granted even though the applicant had
been separated for an EPTS condition because no disability was noted upon
the applicant's enlistment and reports of his treatment prior to service
show only one incident for left knee pain at age 16.

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement,
or Separation) 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.
 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, grade,
rank, or rating.  Separation by reason of disability requires processing
through the PDES.
10.  Chapter 4 of the same regulation contains guidance on processing
through the PDES, which includes the convening of a MEB to document a
Soldier's medical status and duty limitations insofar as duty is affected
by the soldier's status.  If the MEB determines a Soldier does not meet
retention standards, the case will be referred to a PEB.  The PEB evaluates
all cases of physical disability equitably for the Soldier and the Army.
It also investigates the nature, cause, degree of severity, and probable
permanency of the disability of soldiers whose cases are referred to the
board.  It also evaluates the physical condition of the Soldier against the
physical requirements of the Soldier's particular office, grade, rank, or
rating.  Finally, it makes findings and recommendations required by law to
establish the eligibility of a Soldier to be separated or retired because
of physical disability.

11.  Chapter 5 provides for separation of an enlisted Soldier for non-
service aggravated EPTS conditions when a Soldier requests a waiver of PEB
evaluation, and concurs with discharge.

12.  Title 38, United States 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.  The VA,
in accordance with its own policies and regulations, awards compensation
solely on the basis that a medical condition exists and that said medical
condition reduces or impairs the social or industrial adaptability of the
individual concerned.  The VA can evaluate a veteran throughout his
lifetime, adjusting the percentage of disability based upon that agency's
examinations and findings.  However, these changes do not call into
question the application of the fitness standards and the disability
ratings assigned by proper military medical authorities during the
applicant’s processing through the Army PDES.

13.  Army Regulation 600-8-22 (Military Awards) provides the Army's awards
policy.

14.  Chapter 4 of the awards regulation provides guidance on award of the
AGCM.  Paragraph 4-5 identifies qualifying periods.  The normal qualifying
period is three years; however, for the first award only a period of more
than 1 year is a qualifying period upon termination of military service.
It further states, in pertinent part, that the first award of the AGCM is
authorized upon termination of service, on or after 27 June 1950, of less
than 1 year when final separation was by reason of physical disability
incurred in line of duty.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that his record should be corrected to show
he was separated for a medical condition that he incurred in the line of
duty and that he should be awarded the AGCM were carefully considered.
However, there is insufficient evidence to support these claims.

2.  The evidence of record confirms the applicant waived his right to have
his medical condition evaluated by a PEB and instead elected to process his
case through an MEB based on the fact his knee condition existed prior to
service.  In the MEB proceedings, the applicant admitted that he had
experienced knee problems since the age of 14 and that his condition
existed prior to service.  He also waived his right to have his case
processed through the PEB and expressed his desire not to continue active
duty service.  His EPTS separation processing was accomplished in
accordance with the applicable law and regulation with his concurrence.
All requirements of law and regulation were met and his rights were fully
protected throughout the separation process.

3.  The VA Rating Decision provided by the applicant was also carefully
considered.  However, the VA is not required by law to determine medical
unfitness for further military service, and it renders its decisions in
accordance with its own policies and regulations, awards compensation
solely on the basis that a medical condition exists and that said medical
condition reduces or impairs the social or industrial adaptability of the
individual concerned.  However, VA decisions do not call into question the
application of the fitness standards and the applicant's EPTS processing
given his waiver of consideration of his case by a PEB and his admission
during the MEB process that the knee condition in question existed prior to
his entering military service.  Therefore, the VA Rating Decision does call
into question the applicant's MEB processing or the reason for his
separation.

4.  By regulation, the AGCM is authorized for a period of less than one
year when the member is separated by reason of a physical disability that
incurred in the line of duty.  Given the evidence of record confirms the
applicant was separated for an EPTS condition, he does not qualify for the
AGCM under this provision of the regulation.

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 14 March 2002, the date of his
discharge.  Therefore, the time for him to file a request for correction of
any error or injustice expired on 13 March 2005.  He failed to 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

___CD __  __MJF __  __JCR___  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.




                                  _____Carmen Duncan____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060016178                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/06/07                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |2002/03/14                              |
|DISCHARGE AUTHORITY     |AR 635-40                               |
|DISCHARGE REASON        |EPTS Med Cond                           |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.       |126.0400                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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