IN THE CASE OF:	  

		BOARD DATE:	  24 May 2012

		DOCKET NUMBER:  AR20110024278 


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 DD Form 214 (Report of Separation from Active Duty) for the period ending 23 June 1976 to show the narrative reason for separation as permanent medical retirement under Title 10, U.S. Code (USC), chapter 61
* correction of the DD Form 2860, dated 23 July 2008 to show "left knee rating, current VA (Department of Veterans Affairs)"

2.  The applicant also requests, by separate letter, his medical records be corrected to show he contracted pneumonia in early April 1976.

3.  The applicant states:

* He has sent a letter to the Defense Finance and Accounting Service (DFAS) proving his chapter 61 status
* He was previously unaware of Title 10, U.S. Code (USC), chapter 61 status
* Sometime during basic combat training, he contracted pneumonia but this information is not in his medical records; he would like to establish that on record with the VA

4.  The applicant provides the following documents:

* Army DD Form 214 for the period ending 23 June 1976
* U.S. Navy (USN) DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 26 August 1964
* VA letters, dated 2 March 2001 and 16 August 2011
* DFAS letter, dated 13 November 2008
* Pages 9-13 of his 17-page DD Form 2860
* Orders D131-13 (temporary disability retired list (TDRL)), dated 7 July 1980
* TDRL removal letter and order, dated 10 June 1981
* Copy of Retired Identification Card
* A DA Form 3349 (Physical Profile), dated 9 January 2005
* Various other temporary profiles
* A DA Form 4856 (Developmental Counseling Form)

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.  With respect to the DD Form 2860, this form is completed and submitted by the individual claiming CRSC and is processed by the U.S. Army Human Resources Command (HRC) at Fort Knox, KY.  If the applicant believes he made an administrative error on this form or if he believes he omitted a condition, he should contact the HRC CRSC Division at the address indicated on the letterhead that awarded him CRSC.  This issue will not be discussed further in the Record of proceedings.

3.  With respect to the separate request related to correcting his medical records to show he contracted pneumonia in early April 1976, the applicant neither provided the record that needs correction nor evidence of the condition he claims.  In the absence of his medical records and/or evidence from the applicant, there is nothing for this Board to consider.  This issue will also not be discussed in the Record of Proceedings.

4.  The applicant was born on 25 November 1946.
5.  Having had prior service in the USN, his records show he enlisted in the New York Army National Guard (NYARNG) on 1 July 1975.

6.  He entered active duty for training (ADT) on 11 January 1976 and completed the Field Radio Mechanic training course.  He was honorably released from ADT to the control of his State on 23 June 1976 by reason of having completed his required training.

7.  Subsequent to his release from active duty, he continued to drill with his ARNG unit, the 1st Battalion, 71st Infantry.  

8.  On 23 August 1978, while training with his ARNG unit at Fort Drum, NY, he attempted to jump from his position on a truck and caught his leg in the retainer chain causing him to fall forward face down on his hands, twisting his knees.  His injury was later determined to be in line of duty.

9.  He later complained of pain in his left knee and suspected of having a possible injury to the posterior cruciate ligament.  An orthopedic medical doctor later stated by letter to his commander:

[Applicant] was disabled for the performance of his duties during the period 23 August 1979 to undetermined due to torn lateral collateral ligament of the left knee and osteoarthritis (moderate).  He was unfit for retention in the ARNG and is presented to the physical evaluation board (PEB), Washington, DC

10.  On 9 April 1980, he underwent a series of evaluations and/or examinations. His Narrative Summary noted his final diagnosis was that of severe painful, torn lateral collateral ligament of the left knee and moderate osteoarthritis of the left knee.  He was determined to be unfit for further military service in accordance with chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness) and recommended for entry into the physical disability evaluation system (PDES).

11.  On 9 April 1980, a medical evaluation board (MEB) convened at Fort Monmouth, NJ, and after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was diagnosed as having the medically-unacceptable condition of severe painful, torn lateral collateral ligament of the left knee and moderate osteoarthritis of the left knee. The MEB recommended he be referred to a PEB.  He agreed with the MEB's findings and recommendation and indicated that he did not desire to continue on active duty.

12.  On 22 April 1980, an informal PEB convened at Walter Reed Army Medical Center.  The PEB found the applicant's condition prevented him from performing the duties required of his grade and military specialty and determined that he was physically unfit due to internal derangement of the left knee, manifested by lateral instability and pain.  He was rated under the VA Schedule for Rating Disabilities assigned code 5257, and granted a 30% disability rating.  The PEB recommended that he be placed on the TDRL with reexamination in April 1981.  He concurred with the PEB's finding and recommendation and waived his right to a formal hearing on the same date.

13.  On 7 July 1988, the U.S. Army Military Personnel Center, Alexandria, VA, published Orders D131-13 placing him on the retired list in his retired rank/grade of private first class/E-3 effective 22 July 1980.  A DA Form 3713 was initiated to place him on the TDRL in accordance with Title 10, USC, section 1205.

14.  On 21 July 1988, the ARNG issued him a National Guard Bureau Form 22 (Report of Separation and Record of Service) discharging him from the ARNG effective 21 July 1988  

15.  In April 1981, he underwent a TDRL examination.  The examination determined the applicant should be able to perform military duties.  However, the applicant indicated he did not concur.  

16.  On 4 May 1981, an informal TDRL PEB convened at Walter Reed Army Medical Center.  Based on the review of the TDRL examination, the PEB found the applicant remained unfit to reasonable perform the duties required of his previous grade and military specialty.  His condition was considered sufficiently stable for final adjudication.  The PEB determined he remained unfit, awarded him a 30% disability rating, and recommended his permanent retirement.  The applicant concurred with the findings and recommendations.  

17.  On 10 June 1981, the U.S. Military Personnel Center, Alexandria, VA, published Order D111-23 removing him from the TDRL effective 30 June 1981 and permanently retiring him with a 30% disability rating.  A DA Form 3713 was initiated to permanently retired him under Title 10, U.S. Code, section 1201.

18.   Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army PDES 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 or her office, grade, rank, or rating.  It provides for MEBs, 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 chapter 3 of Army Regulation 40-501.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

19.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the Veteran's Affairs Schedule for Rating Disabilities.  

20.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The purpose of the separation document is to provide the individual with documentary evidence of his or her active military service.  The DD Form 214 is a summary of a Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge, and is not intended to have any legal effect on termination of a Soldier's service.  A DD Form 214 will be prepared for each Soldier as indicated:

	a.  Active Army Soldiers on termination of active duty by reason of administrative separation (including separation by reason of retirement or expiration of term of service), physical disability separation, or punitive discharge under the Uniform Code of Military Justice;

	b.  Reserve Component (RC) Soldiers completing 90 days or more of continuous ADT, Full-Time National Guard Duty, active duty for special work, temporary tours of active duty, or Active Guard Reserve service.  Also, RC Soldiers separated for cause or physical disability regardless of the length of time served on active duty;

	c.  ARNG and USAR Soldiers mobilized under Title 10, U.S. Code, sections 12301(a), 12302, or 12304, and ARNG Soldiers called into Federal service under Title 10, U.S. Code, chapter 15 or section 12406, regardless of length of mobilization, when transitioned from active duty.  A Soldier who reports to a mobilization station and is found unqualified for active duty will be excluded from this provision.  He or she will only receive a DD Form 220 (Active Duty Report); and

	d.  RC Soldiers completing initial ADT that results in the award of an MOS even when the active duty period was less than 90 days.  This includes completion of advanced individual training under the ARNG of the United States Alternate Training Program or USAR Split Training Program.
DISCUSSION AND CONCLUSIONS:

1.  The applicant enlisted in the ARNG 1 July 1975.  He entered ADT on 11 January 1976 and he was honorably released from ADT to the control of his State on 23 June 1976 by reason of having completed his required training.  He was not released from active duty due to disability.  He simply completed his required training in an active status and he was released from active service to his ARNG unit. 

2.  On 23 August 1978, over 2 years after his release from active duty, while training with his ARNG unit at Fort Drum, NY, he injured his knee.  His injury was later determined to be in line of duty.  He was seen by various medical specialists and recommended for entry into the PDES.  He underwent an MEB which recommended that he be considered by a PEB.  The PEB found his knee condition prevented him from performing his duties and determined he was physically unfit for further military service.  The PEB recommended placing him on the TDRL.  He agreed with the recommendation.  

3.  He underwent a TDRL examination and a subsequent TDRL PEB that reviewed his case.  Based on the review, the PEB found he remained unfit to reasonably perform the duties required of his previous grade and military specialty.  His condition was considered sufficiently stable for final adjudication.  The PEB rated him at 30% disability rating and recommended his permanent retirement.  He concurred.

4.  His knee injury occurred over 2 years after his release from active duty.  The DD Form 214 is a summary of a Soldier's most recent period of continuous active duty.  The applicant did not medically retire during ADT.  

5.  His physical disability evaluation was conducted in accordance with law and regulations and the applicant concurred with the PEB's recommendation.  There is no error or injustice in this case.  Therefore, in view of the foregoing evidence, he is not entitled to the requested relief.

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)                                         AR20110024278





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ABCMR Record of Proceedings (cont)                                         AR20110024278



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