IN THE CASE OF:	  

		BOARD DATE:	    8 March 2011

		DOCKET NUMBER:  AR20100016193 


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 correction of his records to show he was awarded a disability rating of at least 30 percent and that he was medically retired.

2.  The applicant states he was not given the opportunity to continue his career in another specialized area.  Further, the disability percentage he received was not conducive to his injuries and his injuries have contributed to other health problems such as lower back trauma and right knee [problems].  

3.  The applicant provides partial copies of his service medical records, post service medical treatment records, a self-authored statement detailing his medical history, and a statement from his spouse.

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.  On 17 September 1991, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty MOS 11B (Infantryman).

3.  The applicant's medical records were not available for review and all medical evidence was provided by the applicant.  

4.  The narrative summary (NARSUM) from his Medical Evaluation Board (MEB) states his chief complaint was recurrent chilblain but it was also noted that he had other medical conditions, specifically, recent anterior cruciate ligament reconstruction and partial lateral meniscectomy of the left knee.  His present status was still recovering from knee surgery.  Further, his feet had been asymptomatic and he had not limited his activity since April of 1996.  Before his recent knee injury he participated in basketball and other strenuous activities without difficulty.  The NARSUM provided a diagnosis of:

   a.  History of recurrent chilblain.

   b.  Rupture of anterior curciate ligament and partial tear of lateral meniscus in left knee repaired by surgery on 20 May 1997, medically acceptable.  Surgically corrected.

5.  The MEB stated that even with a suitable recovery from his knee injury, the applicant was still incapable of performing all of the duties of MOS (11B) because he could not withstand the effects of prolonged exposure to even moderately cold weather.  Further, Army Regulation 40-501 (Standards of Medical Fitness) required that all recurrent cold injuries be referred to a medical board. 

6.  His official military personnel file contains a DD Form 214 which shows he was honorably discharged from active duty on 4 October 1997 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) by reason of disability, severance pay.  He completed 6 years and 18 days of active military service.  

7.  Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell, Orders Number 265-0018, dated 22 September 1997, show he was granted a
20 percent disability rating. 

8.  The applicant provides a self-authored statement in which he indicates he enjoyed his job as an infantry Soldier.  He was promoted to sergeant (SGT)/E-5 within his first 4 years of service.  He sustained at least three cold weather injuries to his hands and feet while at Fort Drum, NY, an additional cold weather injury while attending the Primary Leadership Development Course at Fort Campbell, KY, and another at the Joint Training Readiness Center at Fort Polk, LA.  He contends his chain of command told him not to seek care but he finally received medical attention from a podiatrist at Fort Campbell, which subsequently led to his medical discharge.  During his medical discharge processing, he suffered a major left knee injury that required surgery and he underwent rehabilitation for approximately 1 year.  He contends he was not given an opportunity to continue his career.  In October 1997, approximately 6 months after his surgery, he was medically discharged from the Army.

9.  After he was discharged he moved to Columbus, GA because of his cold weather injuries.  He was employed as a Quality Assurance Technician and Corrections Officer; however, he is currently a Firefighter/EMT with the Columbus Fire Department.  He contends that during the winter months his feet and hands stay cold and his left knee affects his job performance because he is required to lift heavy equipment.  Further, his right knee injury has caused damage to his lower back.  His medical conditions make him unable to lie in one position for more the 15 minutes, caused him to have irregular bowel movements, and intimacy problems.  

10.  Since 2002, he has received rehabilitation services from the Department of Veterans Affairs (VA) and the Hughston Clinic for his ongoing knee and back problems.  He has had tears in his knee with no way to repair them.  He voluntarily discontinued his medication because the large dosages affected his stomach and impaired his job performance.  He has not informed his employer of his medical issues because he fears being terminated as an insurance liability.  Finally, he contends that after informing the VA doctors of his concerns regarding his declining health and how his medical issues affect his job performance, but was told to find a another type of work.  However, the current economy does not afford him the luxury of changing jobs and he has financial obligations which prevent him from taking full advantage of vocational rehabilitation.  He applied for individual unemployability and he was denied.

11.  His spouse wrote a letter on his behalf which states, in effect, that the knee and cold weather injuries the applicant suffered while on active duty have caused his health to decline.  She has witnessed his inability to regain his posture when rising from the bed.  He has a constant popping sound in his knee when he sits, stands, or walks.  He also has difficulty with intimacy and irregular bowel movements.  She fears he will eventually be physically disabled.

12.  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.
13.  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.

14.  Army Regulation 635-40 provides that those members who do not meet medical retention standards will be referred to a Physical Evaluation Board (PEB) to determine whether they are physically unfit to perform their duties and if found unfit, to determine the percentage of disability to be awarded.  This regulation also states that there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying.  Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.  

15.  Army Regulation 635-40 further provides that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  The overall effect of all disabilities present in an individual whose physical fitness is under evaluation must be considered both from the standpoint of how the disabilities affect the individual’s performance, and requirements which may be imposed on the Army to maintain and protect him or her during future duty assignments.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests correction of his records to show he was awarded a disability rating of at least 30 percent and that he was medically retired.

2.  The available evidence shows he was evaluated by an MEB for recurrent chilblains and recent anterior cruciate ligament reconstruction and partial lateral meniscectomy of the left knee.  The complete facts and circumstances of his discharge are not available.  In the absence of his complete MEB/PEB packet, it must be presumed that his medical discharge was conducted in accordance with law and regulations.  

3.  The applicant contends he was not offered the opportunity to continue his career in another MOS and his disability rating was not conducive with his injuries; however, he has provided no evidence which shows his disability processing was in error or unjust or that his conditions were improperly evaluated such as to warrant a rating higher than 20 percent.

4.  It is acknowledged that medical conditions may worsen over time; however, the Army’s rating is dependent on the severity of the unfitting condition at the time of separation.  The VA has the responsibility and jurisdiction to recognize any changes in conditions over time by adjusting a disability rating.  

5.  In view of the foregoing, his request should be denied.

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)                                         AR20100016193



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ABCMR Record of Proceedings (cont)                                         AR20100016193



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