IN THE CASE OF: 

		BOARD DATE:	  23 October 2012

		DOCKET NUMBER:  AR20120004346 


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 discharge be changed from a disability with severance pay to a medical retirement.

2.  The applicant states the Department of Veterans Affairs (VA) performed surgery on his knee in January 2011 and advised him that his knee will need to be replaced in the future.  He was also advised to seek a status change due to the severity of his medical disabilities. 

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and 41 pages of medical treatment records.

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 on active duty in the Regular Army from 25 February 1987 through 17 February 1998.  The highest rank/grade he attained while on active duty was staff sergeant/E-6.

3.  The medical records provided show he was treated for:

* a right knee injury, 1988
* a left inguinal hernia with surgical repair, 1990
* impacted wisdom teeth with surgical extractions, 1991
* sprain/fracture of the left wrist, 1992
* a left ankle sprain, 1992 - 1993
* a varicocele, 1992 - 1993
* right knee pain, 1996
* right knee surgery, 1997

4.  In mid-1996, without reported trauma, the applicant started having pain in his right knee, especially when running.  On 20 March 1997, he underwent surgical repair for medial and lateral meniscus tears.

5.  On 25 November 1997, a Physical Evaluation Board (PEB) convened that determined the applicant was physically unfit for continued service and recommended a disability rating of 20 percent.  The PEB described his disability as pain in the right knee with degenerative changes of medial and lateral femoral condyles and chondromalacia as well as ligamentous laxity (weak or loose ligaments) in both ankles with normal range of motion.  The board recommended that he be separated with severance pay.

6.  On 3 December 1997, he concurred with the PEB findings and recommendations and waived his right to a formal hearing.

7.  The applicant was honorably discharged with severance pay on 17 February 1998.  He had 10 years, 11 months, and 23 days of creditable service including service in Kuwait during the Persian Gulf War. 

8.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of a physical disability to reasonably perform the duties of his office, grade, rank, or rating.  PEB's are established to evaluate all cases of physical disability equitability for the Soldier and the Army.  It is a fact-finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating; to provide a full and fair hearing for the Soldier; and to make findings and a recommendation to establish the eligibility of a Soldier to be separated or retired because of physical disability.

9.  Title 10, U.S. Code, Chapter 61 sets forth provisions for retirement or separation due to a physical disability for service members found unfit for continued service.  It provides that a service member afforded a disability evaluation less than 30 percent may be medically separated with severance pay whereas personnel receiving a 30 percent or greater disability rating may be medically retired.

10.  Title 38, U.S. Code, sections 310 and 331, permit the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered physically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.  Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The fact that the VA, in its discretion, may have awarded the applicant a disability rating is a prerogative exercised within the policies of that agency.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant underwent surgery on his right knee that warranted his entry into the PDES.  The PEB found his medical condition prevented him from performing the duties required of his grade and military specialty.  He was determined physically unfit for further military service.  The PEB recommended separation with entitlement to severance pay with a 20 percent disability rating.  The applicant agreed with the findings and recommendations and waived his right to a formal hearing of his case.

2.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation.  The fact that his knee condition may have worsened or that he has undergone and/or may need additional surgeries on his knee, does not affect his rating percentage that was rendered at the time of separation.  

3.  The applicant's physical disability evaluation was conducted in accordance with law and regulations and the applicant concurred with the recommendation of the PEB.  There does not appear to be an error or an injustice in his case.  He has not submitted substantiating evidence or an argument that would show an error or injustice occurred in his case.  In view of the circumstances in this case, there is insufficient evidence to grant 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)                                         AR20120004346



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ABCMR Record of Proceedings (cont)                                         AR20120004346



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