RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  18 October 2007
	DOCKET NUMBER:  AR20070005028 


	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.


Ms. Catherine C. Mitrano

Director

Mr. Mohammed R. Elhaj

Analyst

The following members, a quorum, were present:


Mr. John Slone

Chairperson

Mr. John T. Meixell

Member

Mr. David W. Tucker

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 correction of his records to show he was retired by reason of physical disability after completing 20 years of creditable active service.

2.  The applicant states, in effect, that he was not given proper legal advice and representation for his Medical Evaluation Board (MEB) proceedings.  He further states that his Judge Advocate General (JAG) lawyer was not fully versed on medical proceedings and advised him to just retire and let the Department of Veterans Administration (DVA) reevaluate him. 

3.  The applicant provides the following additional documentary evidence in support of his application:

	a.  DD Form 4 (Enlistment Contract-Armed Forces of the United States), dated 17 December 1974.

	b.  DD Form 214 (Report of Separation from Active Duty), dated
17 August 1978.

	c.  DA Form 2-1 (Personnel Qualification Record).

	d.  DA Form 3947 (Medical Board Proceedings) [results of the Medical Evaluation Board (MEB)], dated 22 February 1978.

	e.  Standard Forms (SF) 600 (Chronological Record of Medical Care), various dates.

	f.  SF 88 (Report of Medical Examination), dated 10 February 1978.

	g.  DA Forms 199 [Physical Evaluation Board (PEB) Proceedings], dated 15 March 1978.

	h.  DA Forms 199 and Minutes of the PEB Hearing, dated 5 April 1978.

	i.  DA Form 199 (Rebuttal), dated 14 June 1978. 

	j.  Command Endorsement, Subject: Continuation of Disabled Personnel on Active Duty, dated 18 July 1978, indicating the applicant's withdrawal of his application for continuation on active duty.

	k.  Department of the Army, U. S. Military Personnel Center Orders
D151-11, dated 3 August 1978, announcing the applicant's retirement, effective 17 August 1978.

	l.  Headquarters, 25th Infantry Division General Orders Number 182, dated 11 June 1966, awarding the applicant the Army Commendation Medal with ”V” Device for valor.

	m.  Miscellaneous letters of commendation. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests correction of the applicant’s records to show he was retired by reason of physical disability after completing 20 years of creditable active service instead of 18 years, 6 months, and 28 days.

2.  Counsel states that the applicant's records reflect that he served in the Army during the period 17 December 1974 through 17 August 1978 and that he upheld a good record until his disability manifested.  Counsel adds that the applicant has a limited time left for him to receive a clear retirement.  Counsel concludes that the Board should consider all the evidence and the applicant's awards/medals to include his Purple Heart to enable him to receive all his benefits.

3.  Counsel assisted the applicant in providing the above supporting documents. 

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.




2.  The applicant's records show that he entered the Regular Army on 23 January 1960 for a period of 2 years.  He reenlisted in July 1962 and had continuous duty until he was medically retired on 18 August 1978.  The applicant's records further show that he completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11E (Armor Crewman). 

3.  The applicant's records show that he served several overseas tours to include Germany (two tours), Hawaii, Korea, and a tour in the Republic of Vietnam during the period 29 January 1966 through 17 December 1966.  

4.  Item 24 (Decoration, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 shows that he was awarded the Army Commendation Medal with "V" Device, the Purple Heart, the Combat Infantryman Badge, and several other medals.

5.  On 23 September 1976, the applicant injured his knee while repairing a tank track.  The next month, his knee swelled up and pained him considerably, and soon afterwards, he underwent meniscectomy.  However, since his surgery, he experienced swelling and pain everyday.  He wore a brace on his right knee, but that did not help him much.  He later appeared before a "Change of MOS Board" which found his assignment limitations were too restrictive for training and referred him to an MEB and PEB.

6.  On 22 February 1978, the applicant underwent an MEB for possible internal derangement of the right knee, right shoulder pain, and post operation meniscectomy.  The MEB proceedings indicated the applicant had an old injury to his right knee with premature degeneration of patellar cartilage and chronic pain.  The MEB recommended the applicant be referred to a PEB.  The applicant concurred with the findings and recommendations of that board.

7.  On 15 March 1978, a PEB found that the applicant was physically unfit due to impairment of the knee that was diagnosed earlier.  The applicant was rated under the DVA Schedule for Rating Disabilities (VASRD) code 5257 and granted a 30 percent disability rating.  The PEB also recommended the applicant be permanently retired from the service.  

8.  On 5 April 1978, the PEB reconvened and reconsidered the applicant's physical impairment.  It found the applicant's injury to be sufficiently severe to raise his rating to the next higher rating of 40 percent.  The PEB found that the applicant was physically unfit due to impairment of the knee and recommended that the applicant be permanently retired from the service.

9.  On 6 April 1978, the U.S. Army Physical Evaluation Board provided the applicant with a copy of the recent hearing and notified him by memorandum that he had three business days to submit a rebuttal if he did not agree with the findings and recommendations.

10.  On 12 June 1978, the applicant submitted a rebuttal disagreeing with the PEB’s findings and recommendations.  He stated in his rebuttal statement that he might have had a thyroid issue and that the PEB should take everything into consideration in order to rate him properly.

11.  On 14 June 1978, the PEB (Rebuttal) reevaluated the applicant's physical condition based on his rebuttal statement dated 12 June 1978 and his medical records.  Accordingly, the PEB changed its findings and recommendations and rated the applicant under VASRD code 5257/5262 with a 40 percent disability rating, as well as under VASRD code 5299/5215 (carpel tunnel syndrome, right, below VA minimum) with a 0 percent disability rating.  The PEB (Rebuttal) found that the applicant was physically unfit due to impairment of the knee and recommended that the applicant be permanently retired from the service.

12.  On 18 July 1978, U.S. Army Enlistment Eligibility Activity, St. Louis, Missouri, issued a memorandum stating that it received a letter dated 5 July 1978 from the applicant indicating his desire to withdraw his application for continuance on active duty.

13.  U.S. Army Military Personnel Center, Alexandria, Virginia, Orders D151-11, dated 3 August 1978, show that the applicant was placed on the retired list effective 18 August 1978, in the retired grade of sergeant first class/SFC, with a 40 percent disability.  The DD Form 214 he was issued at the time his discharge confirms he was honorably retired by reason of permanent physical disability.  This form further confirms that he completed a total of 18 years, 6 months, and 28 days of creditable active military service.

14.  The applicant submitted a copy of Headquarters, 25th Infantry Division, General Orders Number 182, dated 11 June 2006, showing that he was awarded the Army Commendation Medal with "V” Device in connection with military operations against a hostile force in the Republic of Vietnam on 3 June 1966.

15.  The applicant submitted several commendation letters issued by senior officers commending him on his performance, conduct, and professionalism.


16.  There is no record that the applicant received improper legal advice by a JAG officer during his formal hearing.  Additionally, there is no indication in the applicant's records that the JAG officer was or was not well versed in medical proceedings. 

17.  Army Regulation (AR) 635-40 establishes the Army physical disability evaluation system 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 office, grade, rank, or rating.  It provides for medical evaluation boards, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in AR 40-501 (Standards of Physical Fitness), chapter 3.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

18.  Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his/her office, rank, grade, or rating because of disability incurred while entitled to basic pay.

19.  The Fiscal Year 2004 National Defense Authorization Act provided for phased-in restoration of the retired pay deducted from the accounts of military retirees because of their receipt of VA compensation.  Concurrent Retirement and Disability Payments (CRDP) applies to all retirees with VA-rated, service-connected disability of 50 percent or higher but does not apply to disability retirees with less than 20 years of service.  The phased-in restoration began       1 January 2004.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should show he was retired by reason of physical disability after completing 20 years of creditable active service.  The applicant had completed 18 years, 6 months, and 28 days of military service at the time of his medical retirement.

2.  The applicant's several overseas tours, commendations letters, and the Army Commendation Medal with "V" Device were noted.



3.  The medical evidence of record supports the determination that the applicant's unfitting condition was properly diagnosed and that his disability was properly rated in accordance with the VASRD.  His medical retirement was in compliance with law and regulation.  The applicant rebutted the PEB rating decision that resulted in no change in his disability rating or the decision to medically retire him.

4.  A law providing for concurrent receipt of military retired pay and VA disability compensation passed 26 years after the applicant retired.  However, the law does not apply to disability retirees with less than 20 years of service.  Regrettably, the passage of a law 26 years after the applicant retired for physical disability, 18 months short of completing 20 years of active duty, there is insufficient reason to grant the relief requested.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__js____  __jtm___  __dwt___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




							John Slone
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20070005028
SUFFIX

RECON

DATE BOARDED
20071018
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
136.0200
2.
145.0000
3.

4.

5.

6.