IN THE CASE OF:	  

		BOARD DATE:	  25 February 2010

		DOCKET NUMBER:  AR20090014612 


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 physical disability retirement.

2.  The applicant states, in effect, that the Department of Veterans Affairs (DVA) awarded him a total of 20 percent disability rating for both knees.  He also states that his injury took place in August 1997 when his infantry battalion conducted a 100-mile road march.  Following that march, he developed severe pain in his knees which was seriously hampering his ability to run, march, or carry his usual rucksack weight.  In October 1997, the resident orthopedic surgeon at Bassett Army Community Hospital, Fort Wainwright, AK, diagnosed him with chondromalcia and placed him on a permanent P3 lower body profile.  As a career captain of six years experience, he was not able to perform the core duties for which he was trained and that were required of his area of concentration (AOC).  Any potential for career advancement in his branch was eliminated.  He sought advice on whether he should seek a medical board for medical retirement or resign his commission.  On all accounts, he was dissuaded from seeking a medical board and he was told resigning was the better channel for leaving the Army through a medical board could take longer.  Because of his Outside the Continental United States (OCONUS) duty assignment to U.S. Army, Alaska (USARAK), he was unable to resign until May 1999.

3.  In support of his application, the applicant provides copies of his DA Form 2B (Personnel Qualification Record - Part I), prepared on 28 August 1998; his Officer Record Brief (ORB), dated 9 September 1998; a DA Form 31 (Request and Authorization for Leave), dated 7 April 1999; U.S. Total Army Personnel Command, Alexandria, VA, message, dated 7 April 1999, approving his unqualified resignation effective 10 May 1999; Detachment 1, 203rd Personnel Services Battalion, Fort Wainwright Orders 099-0203, dated 9 April 1999; his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 10 May 1999; and his DVA Compensation and Pension Report and DVA Rating Decision.

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 records show he was commissioned in the Regular Army (RA), Infantry, as a second lieutenant, on 1 June 1991.  He was assigned specialty MOS 11A (Infantry).  He was promoted to captain on 1 June 1995.

3.  There is no evidence the applicant was diagnosed with an injury that required processing by a Medical Evaluation Board (MEB) or a Physical Evaluation Board (PEB) during his period of active duty.

4.  The applicant provided a copy of an unclassified message, dated 7 April 1999, which approved his request for an unqualified resignation under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges), chapter 3, effective 10 May 1999.

5.  The applicant was honorably discharged on 10 May 1999 under the provisions of Army Regulation 600-8-24, paragraph 3-5, for miscellaneous/
general reasons.

6.  The applicant provided a copy of his DVA Compensation and Pension Exam Report, dated 29 October 1999, that shows he underwent a general medical compensation and pension evaluation for his knee problems.  He also provided a copy of his DVA Rating Decision, dated 4 November 1999, that shows he was awarded a 20 percent (10 percent for each knee) service-connected disability rating.
7.  Army Regulation 600-8-24, paragraph 1-24 specifies that if a commissioned officer being processed for separation is determined to have a medical impairment that does not meet medical retention standards and a recommendation that the officer be placed on the Temporary Disability Retirement List, or separated, or permanently retired.  Paragraph 3-5 provides that any officer on active duty for more than 90 calendar days may tender a resignation under this paragraph except when action is pending that could result in resignation for the good of the service, is under a suspension of favorable actions, pending investigation, under charges, or any other unfavorable or derogatory action is pending.  An officer on OCONUS station who will incur an active duty service obligation will comply with such orders unless an exception is made by the Human Resources Command.

8.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) prescribes the policies and procedures for evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  When a Soldier continues to perform military duties up to his or her discharge, the Soldier is presumed to have been physically fit.  The presumption is rebuttable by evidence that shows:  an acute, grave illness or injury occurred which prevented the Soldier from performing further duty; a serious deterioration of a previously diagnosed condition, to include a chronic condition, which would preclude further service (if the Soldier were not separating/retiring); and/or a chronic condition for which the Soldier was referred, and a preponderance of evidence established that the Soldier was not performing duties befitting his or her experience, grade, rank, or rating.

9.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of active service and a disability rated at less than 30 percent.  

10.  Title 10, U.S. Code, section 1201 provides for the physical disability retirement of a member who has at least 20 years of active service or a disability rate at least 30 percent.  

11.  Title 38, U.S. Code, sections 1110 and 1131, permit the DVA to award compensation for disabilities which were incurred in or aggravated by active military service.  The DVA has neither the authority nor the responsibility for determining physical fitness for the military service.  It awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability.  

12.  Title 10, U.S. Code, section 1212(c) states that the amount of disability severance pay received shall be deducted from any compensation for the same disability to which the former member becomes entitled under any law administered by the DVA.  Thus, the VDA compensation may be withheld as an offset on a monthly basis until the total amount of military severance pay has been recovered.

13.  Title 38, U.S. Code, section 5304 states that, except to the extent that retirement pay is waived under other provisions of law, not more than one award of pension, compensation, or reserve retirement pay shall be made concurrently to any person based on such person’s own service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant is not entitled to physical disability retirement.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  The applicant’s contentions have been noted; however, his records are void of the results of any medical records or evaluations for his knees during his period of service.  

3.  The evidence shows he was awarded a 20 percent disability rating for his knees from the DVA approximately 6 months after his separation from active duty.  While the Board does not dispute his medical condition, there is no evidence that the Army would have found him to be unfit for duty or, if he had been found unfit for duty, that he would have been rated by the Army higher than 20 percent had he been processed for retirement through medical channels.  

4.  The evidence also shows he continued to perform military duties up to his discharge.  Those duties may or may not have been as an infantryman.  Nevertheless, when a Soldier continues to perform military duties up to his or her discharge the Soldier is presumed to have been physically fit.  The presumption is rebuttable; however, the applicant has not provided evidence sufficient to overcome the presumption of fitness during his period of service.

5.  In addition, although the applicant states he was dissuaded from seeking a medical board, it appears it was his decision not to continue to seek one.

6.  In addition, any disability severance pay the applicant would have received by the Army would have been offset by the DVA compensation he was awarded. 

7.  In the absence of information to the contrary, it is concluded that the applicant’s request for resignation was correct and in accordance with applicable laws and regulations.

8.  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)                                         AR20090014612



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ABCMR Record of Proceedings (cont)                                         AR20090014612



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