IN THE CASE OF:	  

		BOARD DATE:	  21 January 2009

		DOCKET NUMBER:  AR20080015573 


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 show that he was medically retired.

2.  The applicant states, in effect, that he received a 20 percent disability rating for an injury to his knee while on active duty but should have been medically retired due to the effects of his injury.  He states that there was an injustice to his discharge from the military because he should have been medically retired.  His records show that he was injured while on active duty and that being on active duty aggravated a previous injury.  He was diagnosed with Type II Diabetes, Glaucoma, high blood pressure, high cholesterol, prostate problems, and chronic obstructive pulmonary disease.  He was honorably discharged on 19 September 2004.  He was still in lots of pain from his knees.  He sought care from a civilian doctor since he could not get help from the military doctors who did not seem to care for him at Fort Benning, Georgia.  He was recommended to see a civilian doctor in Gadsden, Alabama and went to see him.  He tried several different things to relieve himself of the pain.

3.  Finally, the civilian doctor tried orthoscopic surgery to see if he could clean the knee up and alleviate the pain.  After the orthoscopic surgery, the doctor informed him that his knee was in such bad shape that he would have to do a complete knee replacement on him.  The civilian doctor informed him of this on 7 December 2004 after doing the orthoscopic surgery on his left knee on 30 November 2004.  On 4 January 2005, the civilian doctor did a complete knee replacement on his left knee.  On 14 January 2008, the civilian doctor performed knee replacement surgery on his right knee due to the amount of time his left knee had been injured.  The injured left knee had caused his right knee to over compensate and thereby required surgery on his right knee.  His left knee was giving him trouble again so the civilian doctor had to go back in to his left knee with orthoscopic surgery and clean his left knee of scar tissue from the knee replacement.  The reason he turned down the disability severance pay was because he had over 20 years in the military and he did not believe he should have to give up his benefits.  He states that he should have been medically retired with full benefits due to his injuries, surgery, and the pain he had to endure.  He concludes that there are still many things that he cannot do because of this.

4.  The applicant provides copies of several medical documents and copies of documents from his OMPF (Official Military Personnel File) in support of his request.

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 record shows he enlisted in the United States Army Reserve (USAR) on 4 March 1996, in the pay grade of E-4, with prior service in the Army National Guard (ARNG) and United States Navy (USN).  He was trained in military occupational specialty (MOS) 12B, Combat Engineer.  

3.  On 6 June 2001, the Army Reserve Personnel Command (AR-PERSCOM) notified the applicant that he had completed the required years of service to be eligible for retired pay, on application, at age 60 (20-Year Letter).

4.  The applicant was promoted to staff sergeant (SSG/E-6) effective 27 January 2003.



5.  On 8 February 2003, the applicant was ordered to active duty in support of Operation Enduring Freedom.  

6.  On 19 May 2003, the applicant injured his knee during platoon physical training.  He was doing sit-ups when he felt a pop in his left knee.  He was taken to the TMC (Troop Medical Center) at Arifjan for treatment.  This injury was considered to be in the line of duty (LOD).

7.  On 8 February 2004, the applicant was released from active duty and was transferred to his troop program unit (TPU).

8.  On 8 February 2004, the applicant was attached to the Patient Holding Detachment Medical Company, Fort Benning, Georgia, for the purpose of an active duty medical extension (ADME) to receive medical treatment.  His period of active duty was for 90 days with an end date of 7 May 2004.

9.  On 25 February 2004, the applicant was given a physical examination for the purpose of an MEB (Medical Evaluation Board).  His DD Form 2808 (Report of Medical Examination) diagnosed him as having knee-mild osteoarthritis with several other ailments.  It states that he was found not qualified for service with a physical profile of 113111 and recommended that he appear before an MEB.

10.  On 5 April 2004, the applicant's case was considered by an MEB.  The MEB diagnosed the applicant as having chronic pain and arthritis in the left knee.
His ailment was ruled to have existed prior to service (EPTS) and was aggravated by active duty.  The applicant indicated that he did not desire to continue on active duty.  The findings and recommendations of the board were approved on the same day and the applicant concurred on the same day.  The MEB recommended that the applicant be referred to a PEB (Physical Evaluation Board).

11.  On 28 April 2004, the applicant's ADME was extended to 2 November 2004.

12.  The applicant was issued a temporary profile of 113111, on 19 May 2004, due to bilateral knee pain, knee surgery 1976, 1977, and 1978.  

13.  The applicant was issued a permanent profile of 313111 on 12 June 2004 due to chronic obstructive pulmonary disease, bilateral knee DJD (Degenerative Joint Disease), severe left meniscal damage and loss of function.  His profile assignment limitations were no running, walking, biking, or swimming and no APFT (Army Physical Fitness Test).  


14.  On 26 April 2004, the applicant appeared before an informal PEB.  The PEB found him unfit due to having chronic pain left knee, due to anterior cruciate ligament deficiency under VASRD (Department of Veterans Affairs Schedule for Rating Disabilities) code 5257 .  The PEB stated that based on a review of the objective medical evidence of record, it found the applicant's medical and physical impairment prevented reasonable performance of duties required by his grade and MOS.  The PEB stated that there was sufficient evidence to support a finding that the current impairment EPTS, was subsequently aggravated by such service, and rendered the applicant unfit.  The applicant had surgery on his left knee in the mid 1970s, asymptomatic until his LOD in May 2003.  The PEB found the applicant physically unfit and recommended that be separated with a combined rating of 20 percent, with severance pay, if otherwise qualified.  The PEB indicated that his separation was not based on a disability resulting from an injury received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurred in the LOD during a period of war as defined by law.  The PEB also indicated that the applicant's disability did not result from a combat related injury.
The reverse side of his informal PEB proceedings is unavailable for review.

15.  On 8 June 2004, the applicant appeared before a formal PEB with counsel. 
The reverse side of his formal PEB proceedings is unavailable for review.

16.  On 19 August 2004, the Chief, Reserve Components Personnel Support Services Branch, Army Human Resources Command (AHRC), prepared a memorandum for the Commander, United States Infantry Center, Fort Benning, Subject:  Early Release from Active Duty (REFRAD) in lieu of Disability Severance Pay for Non-Disability Retired pay at Age 60 for the applicant.
AHRC indicated that the request for REFRAD was approved.  A copy of the applicant's request is unavailable for review.  The applicant was found to be unfit by reason of physical disability by a PEB and would be released from active duty under the provisions of Army Regulation 635-40, paragraph 4-24b(5) and           8-9a(3), no later than (NLT) 19 September 2004.

17.  AHRC indicated the applicant had accumulated more than 20 years of qualifying service for retirement and was issued a 20-Year Letter and would not be discharged, instead the Transition Center (TC) would published a DD Form 214 (Certificate of Release or Discharge from Active Duty) and REFRAD orders. AHRC also indicated that severance pay was not authorized to be paid to the applicant.

18.  The applicant was honorably released from active duty on 19 September 2004 due to completion of required active service.  He was assigned to the USAR Control Group (Retired).

19.  The applicant's Summary of Retirement Points shows he had completed 24 years, 1 month, and 14 days of qualifying service for retirement purposes. 

20.  Army Regulation 40-501 provides policy on medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures.  Chapter 3 lists the various medical conditions and physical defects that may render a Soldier unfit for further military service.  Paragraph 3-14 covers miscellaneous conditions of the extremities.  Subparagraph 3-14(c) states that osteoarthritis, with severe symptoms associated with impairment of function, supported by x-ray evidence and documented history of recurrent incapacity for prolonged periods is a cause for referral to an MEB.  Subparagraph 3-14(e) states that chondromalacia or osteochondritis dissecans, severe, manifested by frequent joint effusion, more than moderate interference with function, or with severe residuals from surgery is a cause for referral to an MEB.

21.  Subparagraph 3-41e states that miscellaneous conditions and defects, individually or in combination, that result in interference with satisfactory performance of duty as substantiated by the individual's commander or supervisor, is a cause for referral to an MEB.

22.  Army Regulation 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 Army Regulation 40-501, chapter 3.  If it is determined the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

23.  Physical evaluation boards 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 recommendation to establish eligibility of a Soldier to be separated or retired because of physical disability

24.  Paragraph 4-24 of Army Regulation 635-40 pertains to disposition by the Army Human Resources Command (AHRC) upon the final decision of the PDA.  It states that AHRC will dispose of the case by publishing orders or issuing proper instructions to subordinate headquarters, or return any disability evaluation case to the USADPA for clarification or reconsiderations when newly discovered evidence becomes available and is not reflected in the findings and 
recommendations.  Subparagraph 4-24b(5) applies to transfer of a Soldier who has completed at least 20 qualifying years of Reserve service, and otherwise qualifies for transfer as described in paragraph 8-9, to the Inactive Reserve on the Soldier’s request. 

25.  Chapter 8 of the same regulation pertains to Reserve Component (RC) Soldiers.  Paragraph 8-9 pertains to disposition.  Subparagraph 8-9a(3) states that RC Soldiers may forfeit their severance pay; be transferred to the Retired Reserve; and receive under the provisions of Title 10, United States Code (USC), Section 12731, (10 USC 12731) nondisability retired pay at age 60, if at least 20 qualifying years of service for retirement have been completed and transfer to the retired Reserve is requested.  According to the provisions of Title 10 USC 1209 and 1213 all rights to receive retired pay at age 60 are forfeited if disability severance pay is accepted instead of transfer to the Retired Reserve.  Disability severance pay (unlike readjustment and separation pay) cannot be repaid for the purposes of receiving retired pay.

26.  The VASRD gives code 5257 (recurrent subluxation or external instability of the knee) a rating of 20 percent for moderate instability and a 30 percent rating when the instability is severe.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant was diagnosed as having chronic pain and arthritis in his left knee.  His ailment was ruled EPTS which was aggravated by active duty.  He was issued a permanent profile of 313111.  He appeared before an MEB and indicated that he did not desire to continue on active duty.  He was referred to a PEB.

2.  The informal PEB found the applicant physically unfit and recommended that he be separated with a combined rating of 20 percent, with severance pay, if otherwise qualified.  The applicant appeared before the formal PEB with counsel. The reverse side of his informal and formal PEB results were unavailable for review.  It is apparent the applicant nonconcurred with the informal PEB results but concurred with the formal PEB results which rendered a 20 percent rating under VASRD code 5257.  Therefore, there is insufficient evidence to show that the 20 percent rating given him by the formal PEB was improper or that his knee condition was severe enough to warrant a 30 percent rating.

3.  The applicant's case was reviewed by the Chief, RC Personnel Support Services Branch, AHRC-Alexandria, who determined that he would be REFRAD under the provision of Army Regulation 635-40, paragraph 4-24b(5) and 8-9a(3) NLT 19 September 2004.  AHRC indicated that the applicant had accumulated more than 20 years of qualifying service and was issued a 20-Year Letter.  He would not be discharge and severance pay was not authorized to be paid to him.

4.  It is apparent that the applicant requested to be REFRAD but his request is unavailable for review.  He agreed with the decision of the memorandum prepared by the Chief, RC Personnel Support Services Branch, AHRC-Alexandria, and did not rebut or appeal that decision.  He was honorably released from active duty on 19 September 2004 and was assigned to the USAR Control Group (Retired).  

5.  The applicant's history regarding his knee replacement surgery by a civilian doctor was considered.  

6.  The applicant claims in effect, that he should have been medically retired with full benefits due to his injuries, surgery, and the pain he had to endure.  He also claims that he refused the disability severance pay because he had over 20 years of qualifying service in the military and he did not believed that he should have to give up his benefits.  According to regulation the applicant maintained his rights to receive his retired pay at age 60 by forfeiting his rights to receive disability with severance pay.   

7.  The applicant has not provided any evidence to show that he should be entitled to a medical retirement due to the effects of his injury.

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)                                         AR20080015573



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ABCMR Record of Proceedings (cont)                                         AR20080015573



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