IN THE CASE OF:	  

		BOARD DATE:	        28 August 2008

		DOCKET NUMBER:  AR20080007851 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his honorable discharge be changed to a medical retirement. 

2.  The applicant states, in effect, that his record needs to be corrected because he was medically discharged with severance pay due to being physically unfit to serve in the Armed Forces.  The Department of Veterans Affairs (DVA) has rated him at 40 percent disabled due to the injuries he sustained while on active duty.  He believes he should be medically retired from the Army.

3.  The applicant provides a copy of his separation document (DD Form 214).

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 military record shows he enlisted in the Regular Army on  
6 February 1996.  He completed the necessary training and was awarded the military occupational specialty (MOS) 95B (Military Police).  He served continuously in various assignments, advancing to the rank of staff sergeant.

3.  A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 23 July 2000, shows that the applicant sustained an injury by rupturing his left achilles tendon while participating in the commander's softball tournament in Bad Aibling, Germany.  The injury was considered to have been incurred in the line of duty (LOD).  The applicant was treated for the injury.  However, over a period of time his left knee continued to bother him.

4.  The applicant was placed on permanent profile for left heel and ankle pain and given assignment limitations of no rifle, no ruck, no running, no jumping, no marching, and no LBE (Load Bearing Equipment).  The applicant was assigned the numerical designator of "4" under "L” (Lower Extremities) of the physical profile, with the instructions no APFT (Army Physical Fitness Training) and lower extremities stretch at own pace and tolerance.  A Medical Evaluation Board (MEBD) was initiated.

5.  A memorandum from the Department of the Army, 401st Military Intelligence Company, 108th Military Intelligence Group, dated 26 June 2001, shows that the applicant's commander rendered an evaluation on the applicant's ability/inability to perform his duties as a military policeman based on his permanent profile (L4). The commander stated, in effect, the applicant's inability to perform basic physical tasks such as running, sustained standing or any impact activity reduced his ability and his section's ability to complete their mission.  The applicant's MOS 95B required some physical demands which he could not be expected to perform due to his profile.  The applicant was precluded from wearing LBE/LBV (Load Bearing Equipment/Vest) and carrying a weapon, which prevented him from responding to a military police emergency call or patrol with a weapon.  The applicant was also unable to deploy with full military (approximately 50 pounds) which was a basic requirement for MOS 95B.  The commander referred the applicant to the Army Physical Disability Evaluation System.

6.  On 27 September 2001, an MEBD was convened which determined that the applicant's history of illness included his left achilles tendon rupture while participating in the commander's softball tournament.  He underwent repair of the achilles tendon five days after the injury.  He had an infection which was gradually resolved over time.  He had right knee pain since 1998.  The applicant believed the right knee pain was related to a sliding incident during a softball game in 1998.  Over time the pain in the right knee developed and he underwent surgery on 13 July 1999.  Since the surgery he had swelling on top of the kneecap and swelling when he stood on his feet for long periods greater than two hours.  He experienced low back pain which prevented him from lifting more than 50 pounds and he could not perform excessive lifting maneuvers.  He received physical therapy and activity modification with medication which did not resolve the problem.  He was seen by orthopedics and the recommendation was that the applicant’s condition be managed conservatively without surgery.  

7.  The physical examination revealed there was no obvious deformity of the left achilles region.  There was a 4 cm scar on the medical aspect of the posterior ankle and leg area consistent with the incision utilized for the achilles tendon repair.  There was decreased sensation around the scar site and thickening of the achilles tendon where the repair was located.  There were normal pulses to the left foot and ankle region.  There was no obvious deformity of the right knee, no swelling in the right knee, and no effusion in the right knee.  Range of motion was both active and passive 0 to 120 degrees.  There was no evidence of any inability.  He had tenderness in the patella and quadriceps tendons, and pain under the patella and in front of the patella consistent with patellofemoral pain syndrome.  The Q-angle for lower extremity was normal and the tracking of the knee was normal.

8.  There was no obvious deformity in the back.  Flexion was 90 degrees and external was 30 degrees.  Side bending right and left was 30 degrees and rotation right and left was approximately 40 degrees.  X-rays of the ankle region were unremarkable, x-rays of the knee revealed early degenerative changes, and x-rays of the back were unremarkable.  The prognosis for unrestricted duty and work was poor.  The applicant's final diagnoses revealed left achilles tendonitis after the achilles tendon rupture.  The determination was the applicant was no longer able to perform his mission as a noncommissioned officer (NCO) and as a military police.  Therefore, he was referred to physical evaluation board (PEB) for adjudication.

9.  On 21 December 2001, the applicant concurred with the MEBD’s findings and recommendation, and he stated he did not desire to continue on active duty under the provision of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement and Separation).

10.  On 14 January 2002, the applicant was considered by an informal PEB.  The PEB determined that the applicant was physically unfit due to pain in the left achilles tendon, pain in the right knee, quadriceps tendinitis; and pain in his back. The applicant was not taking any medication, his physical examination noted tenderness in the three areas, left knee, right knee, and back.  Ankle range of motion was within normal as was the knee.  Back motion was 90 degrees with extension to 30 degrees.  X-rays of all three areas were unremarkable.  The applicant’s conditions were rated zero percent disabling in accordance with the Physical Disability Agency pain policy and under VASRD Codes 5099 and 5003. 

11.  On 23 January 2002, the applicant non-concurred with those findings and recommendations and demanded a formal hearing.

12.  DA Form 751 (Telephone or Verbal Conversation Record), dated  
25 February 2002, shows the applicant agreed with the informal decision from the PEB.  He acknowledged he understood that the admission of the waiver served to cancel the previously scheduled formal hearing and that his case would be forwarded for additional processing.  The PEB findings were then approved by the Secretary of the Army.

13.  On 18 June 2002, the applicant was honorably discharged due to disability with severance pay.  He had completed a total of 6 years, 4 month, and 13 days of net active service this period.

14. Army Regulation 40-501 (Retention Medical Fitness Standards) chapter 
3 provide the standards for medical fitness for retention and separation, including retirement.  Soldiers with medical conditions listed in this chapter should be referred for disability processing.

15.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a MEBD.  Those members who do not meet medical retention standards will be referred to a PEB for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.

16.  Title 10, United States Code, section 1203, provides for the physical disability discharge with severance pay of a member who has less than 20 years service and a disability rated at less than 30 percent.

17.  Title 38, United States Code, permits the DVA to award compensation for disabilities which were incurred in or aggravated by active military service.  The DVA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings.




DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his honorable discharge should be changed to a medical retirement.

2.  The applicant initially non-concurred with the informal PEB and demanded a formal hearing, on 23 January 2002.  However, on 25 February 2002, he retracted his request and agreed with the informal hearing.  He acknowledged he understood that the admission of the waiver served to cancel the previously scheduled formal hearing and his case would be forwarded for additional processing.

3.  Since the applicant had less than a 30 percent disability rating with less than  
20 years of service, he was properly separated from the service due to disability, with severance pay.

4.  The applicant stated that the DVA rated him at 40 percent disabled due to the injuries he sustained while on active duty.  Therefore, he should be medically retired from the Army.  However, a higher rating by the VA does not imply that the rating assigned by the Army is incorrect.  The Army and the VA assign disability ratings for different reasons, so it is not unusual for the two agencies to arrive at different rating decisions for the same condition.  In addition, the VA is able to adjust its rating decision based on the improvement or deterioration of a medical condition, where the Army cannot adjust its rating decision.

5.  The applicant has not submitted any evidence to show he was improperly rated by the Army.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ____X____  ____X____  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.




      _______ _   _X_____   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080007851



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ABCMR Record of Proceedings (cont)                                         AR20080007851



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