IN THE CASE OF:	  

		BOARD DATE:	  12 December 2010

		DOCKET NUMBER:  AR20100010898 


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 his medical discharge be changed to a medical retirement.   

2.  He states the following:

* He was stationed at Fort Drum, NY when he appeared before a Medical Evaluation Board (MEB)
* The MEB decided to discharge him without a military occupational specialty (MOS) change
* Fort Drum was preparing to deploy to Afghanistan at that time and the Department of Defense implemented a stop loss
* He was told that the stop loss prevented him from being medically retired
* He was also told his DD Form 214 (Certificate of Release or Discharge from Active Duty) would reflect he could return to active duty after he satisfactorily completed his rehabilitation at the Department of Veterans Affairs (VA) 
* He tried to be reinstated, but a medical officer at the Military Entrance Processing Station (MEPS) denied his application

3.  He provides a copy of his DD Form 214 and VA medical documentation in support of his application.  



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 enlisted in the Regular Army on 3 April 1984.  He completed one station unit training at Fort Benning, GA and was awarded MOS 11B (infantryman).   

3.  On 2 July 2001, he was given a permanent profile of 113111 for status post (S/P) anterior cruciate ligament (ACL) reconstruction and degenerative disc disease (DDD) lumbar spine.  His assignment limitations were listed as no running, no ruck, no sit-ups.  The unit commander indicated that this permanent change in profile serial did require a change in the applicant’s MOS and that he was not able to accomplish minimum physical tasks required of current grade and MOS.  

4.  On 16 August 2001, an MOS/Medical Retention Board (MMRB) convened at Fort Drum.  His complete findings and recommendations are not available for review.  The first page of the findings indicated the following:  

   a.  He had a profile for S/P ACL reconstruction and DDD lumbar spine.  This precluded him from ruck marching, running, and sit-ups.  He was able to walk at own pace and distance and complete an alternate Army Physical Fitness Test.
   
   b.  He stated that his physical limitation did not hinder him from performing his current MOS.  He verbally stated he would like to continue his Army career in a different MOS.  The medical officer concurred.  

	c.  His commander’s evaluation stated that he had been assigned to Headquarters and Headquarters Company, 10th Mountain Division for approximately five months.  He served as the company operations Noncommissioned Officer-in-Charge.  He had accomplished every assigned task to standard, consistently contributed to the unit’s overall success, was adamant about his desire to continue his career in the Army, and was fully capable of contributing to the Army in a non-combat MOS.  

5.  The findings and recommendations of the MMRB were approved on 4 September 2001 and he was referred to the MEB and Physical Evaluation Board (PEB).  

6.  On 15 November 2001, he was evaluated by an MEB at the 10th Mountain Division, Fort Drum, NY.  He was diagnosed as having the following medical conditions:

* chronic right knee pain (s/p right ACL reconstruction)
* chondromalacia [softening and degeneration of the tissue underneath the kneecap] of the right knee
* DDD of L4-L5 and L5-S1 area and foraminal narrowing of the L5-S1

7.  The MEB recommended that he be referred to a PEB.

8.  On 7 January 2002, an informal PEB found him unfit for military service due to chronic low back pain with pain on flexion and with DDD noted at L5-S-1 
(10 percent) and chondromalacia of the right knee with associated pain 
(0 percent).  

9.  Based on a review of the medical evidence of record, the PEB concluded that his medical condition prevented him from performance of duty in his grade and specialty.  The PEB proceedings stated ratings of less than 30 percent for Soldiers with less than 20 years active service require separation with severance pay in lieu of retirement.  The PEB recommended that he be separated with severance pay with a 10 percent combined disability rating.  He concurred with the recommendations and waived a formal hearing of his case.

10.  He was honorably discharged from active duty on 6 May 2002 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) by reason of physical disability with severance pay.  He completed 18 years, 1 month, and 4 days of active military service.  

11.  His DD Form 214 shows he was issued an RE code of 3 and a Separation Program Designator code of "JFL" due to disability, severance pay.

12.  Army Regulation 635-40 governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability when the unfitness is of such a degree that a Soldier is unable to perform the duties of this office, grade, rank, or rating in such a way as to 
reasonably fulfill the purposes of his employment on active duty.  Paragraph 
4-24b(3) lists separation for physical disability with severance pay.

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

14.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rated at less than 30 percent.  Section 1212 provides that a member separated under Section 1203 is entitled to disability severance pay.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was evaluated by an MMRB on 16 August 2001 and he was referred to an MEB for further medical evaluation.  

2.  The evidence of record shows he was evaluated by an MEB on 15 November 2001.  The purpose of the MEB was to determine if he met the medical retention standards of Army Regulation 40-501, chapter 3 and not to discharge him from the service.  He was then referred to a PEB to determine physical fitness under the policies and procedures of Army Regulation 635-40.  

3.  The law provides for a retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.  Since he was given a 10 percent combined disability rating, he did not meet the requirements for a medical retirement; stop loss did not prevent him from being medically retired.

4.  An informal PEB found him unfit for military service for chronic low back pain and chondromalacia of his right knee at a 10-percent combined disability rating.  As a result he was discharged from active duty under the provisions of Army Regulation 635-40, paragraph 4-24b(3), due to disability with entitlement to severance pay.

5.  He has provided no evidence which shows that his disability processing was in error or unjust or that his conditions were improperly evaluated such as to warrant a rating higher than 10 percent.  Therefore, it has been determined that his discharge by reason of physical disability with entitlement to severance pay was proper and correct at the time and there is no basis to change his discharge to a medical retirement.



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)                                         AR20100010898





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ABCMR Record of Proceedings (cont)                                         AR20100010898



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