IN THE CASE OF:	   

		BOARD DATE:	  29 November 2011

		DOCKET NUMBER:  AR20110007951 


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 he be permanently retired by reason of physical disability.

2.  The applicant states:

* his Physical Evaluation Board (PEB) rated him zero percent for knee pain
* his disability was determined not to have resulted from armed conflict or instrumentality of war
* he is disabled according to the terms of Title 42, U.S. Code, Section 12101 (42 U.S.C. §12101)
* he served in the Global War on Terrorism

3.  The applicant provides:

* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* his DA Form 199 (PEB Proceedings), first page only
* his discharge order
* two pages of Standard Form (SF) 600 (Chronological Record of Medical Care) – 27 October 2005 and 13 December 2005

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 served in the Regular Army as a Petroleum Supply Specialist from 8 February 2000 to 19 September 2007 when he was discharged as a sergeant (SGT/E-5) by reason of disability with $37,180.80 in severance pay.

3.  An SF 600 dated 27 October 2005 indicates:

* a complaint of intermittent right knee pain
* denial of trauma or injury, but pain after physical training (PT)
* examination of left knee was negative
* diagnosis of iliotibial band (ITB) strain
* treatment with naproxen and ace bandage

4.  An SF 600 dated 13 December 2005 indicates:

* a complaint of right knee pain
* pain began while running on treadmill in October 2005
* examination of the right knee indicated:

* no instability of:

* anterior cruciate ligament (ACL)
* posterior cruciate ligament (PCL)
* medial collateral ligament (MCL)
* lateral collateral ligament (LCL)

* no tenderness over medial joint line
* no tightness of hamstrings
* negative for Lachman's (ACL test)
* positive for patellar grind

* diagnosis of patellofemoral pain syndrome (PFPS)
* treatment with naprosyn

5.  On 24 July 2007, the applicant underwent a PEB at Fort Sam Houston, TX and was evaluated for:

* bilateral chondromalacia patellae
* migraine headaches
* insomnia
* psoriasis
* hyperlipidemia

6.  The PEB found him unfit due to bilateral chondromalacia patellae with limitation of motion due to pain and rated his disability percentage at zero percent.  His migraines, insomnia, and psoriasis were determined not to be unfitting.  His hyperlipidemia was determined to be a condition not constituting a physical disability.

7.  Orders 218-0601, Headquarters, 101st Airborne Division and Fort Campbell, Fort Campbell, KY, dated 6 August 2007, discharged the applicant by reason of physical disability effective 19 September 2007 with a zero percent disability rating.  The disability was not the result of a combat-related injury or during performance of duty in combat-related operations.

8.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES).  It 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 or her office, grade, rank, or rating.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.  It provides:

	a.  The mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of their office, grade, rank, or rating.

	b.  To ensure all Soldiers are physically qualified to perform their duties in a reasonable manner, medical retention qualification standards have been established in Army Regulation 40–501, chapter 3.  These standards include guidelines for applying them to fitness decisions in individual cases.

9.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment, including officer procurement programs, and retention and separation, including retirement.  It provides, in pertinent part:

   a.  An individual, to be found unfit by reason of physical disability, must be unable to perform the duties of his/her office, grade, rank or rating.

	b.  Various medical conditions and physical defects may render a Soldier unfit for further military service, including, in paragraph 3-14e, chondromalacia manifested by frequent joint effusion, more than moderate interference with function, or with severe residuals from surgery.

10.  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.

11.  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 least 30 percent.

12.  42 U.S.C. §12101, also known as the Americans With Disabilities Act, has nothing to do with findings of disability by the PDES.

13.  The Veterans Affairs Schedule for Rating Disabilities states, “In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met.”

14.  Chondromalacia patella, also called "runner's knee," is the softening and breakdown of the tissue (cartilage) that lines the underside of the kneecap (patella).  It frequently occurs in adolescents and young adults, and is more common in females.  It is related to the abnormal position of the knee.  The kneecap (patella) sits over the front of the knee joint.  As the knee is bent or straightened, the underside of the patella glides over the bones that make up the knee.  When the kneecap does not move properly, it may rub against the lower part of the thigh bone causing problems.

15.  Hyperlipidemia is the term for high blood cholesterol levels.

DISCUSSION AND CONCLUSIONS:

1.  The applicant complained of a painful right knee as a result of his running on a treadmill in 2005.  He was treated conservatively with non-steroidal anti-inflammatory drugs and support bandages.  He continued to complain and, in 2007, he was referred to the PDES.

2.  The applicant was given a PEB in July 2007.  He was evaluated for knee pain, migraines, insomnia, psoriasis, and hyperlipidemia.  Only his knee pain was determined to be unfitting; however, he was rated zero percent disabled because he did not meet requirements for a compensable evaluation for chondromalacia.

3.  Although he participated in the Global War on Terror and was deployed to Iraq, his knee injury resulted from running on a treadmill and was not the result of a combat-related injury performance of duty in combat-related operations.

4.  The applicant's complete PDES evaluation is not available; however, from the single page of the DA Form 199 which he provided, it appears he was properly evaluated and rated.

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)                                         AR20110007951





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ABCMR Record of Proceedings (cont)                                         AR20110007951



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