IN THE CASE OF:	  

		BOARD DATE:  24 January 2013

		DOCKET NUMBER:  AR20120012581 


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 honorably discharged with a higher percentage of disability and placed on the permanent disability retired list.

2.  The applicant states he was assigned to the 1st Battalion, 5th Field Artillery, 1st Infantry Division, Fort Riley, KS.  He was diagnosed with chondromalacia leading to early degenerative joint disease of his right ankle and medically discharged on 10 May 1993 with a disability rating of 10%.  

	a.  The Department of Veterans Affairs (VA) rated him at 100% permanently disabled and the rating is pending a decision for service-connection.

   b.  He didn't learn that he could appeal the Army's decision until only recently.  

3.  The applicant provides a copy of a VA Compensation and Pension Award, Corporate Award and Rating Data, dated 14 February 2012, 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 (RA) and entered active duty on 16 July 1975.  He was awarded military occupational specialty (MOS) 31V (Tactical Communications System Operator/ Mechanic.

   a.  A DA Form 199 (Physical Evaluation Board (PEB) Proceedings) shows a formal PEB convened on 16 January 1987.  The PEB found the applicant unfit for his left ankle pain due to fibulocalcaneal ligament strain (10%) and intermittent mechanical low back pain (10%).  He was awarded a total combined rating of 20% and separated with severance pay.

   b.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant entered active duty this period on 5 April 1979 and he was honorably discharged based on physical disability on 31 March 1987.

    	(1)  He had completed 7 years, 11 months, and 26 days of net active service this period; 3 years, 8 months, and 19 days of total prior active service; and 22 days of total prior inactive service.

    	(2)  He was authorized severance pay in the amount of $31,485.60.

3.  The applicant enlisted and entered active duty in the RA on 22 November 1989.  

4.  He served in Saudi Arabia in support of Operation Desert Shield/Storm from 22 December 1990 through 2 April 1991.

5.  On 19 February 1992, a Medical Evaluation Board (MEB) was conducted at Irwin Army Community Hospital, Fort Riley, KS.

	a.  The MEB proceedings show the applicant was diagnosed with chondromalacia leading to early degenerative joint disease of his right ankle.

   b.  On 21 February 1992, the MEB determined that the applicant did not meet the retention standards of Army Regulation 40-501 (Standards of Medical Fitness).  The findings and recommendation of the board were approved and his case was referred to the PEB.
   c.   On 24 March 1992, the applicant appealed the MEB findings.  He indicated that the physician who conducted his medical evaluation did not complete a full physical examination.  He stated that he had additional medical problems that included a previously injured left ankle that he reinjured in October 1991 when he fell on ice; at the same time he injured his back; and he later discovered he had a problem with strength in his right arm.

   d.  The applicant's appeal was considered and the original findings and recommendation of the MEB were confirmed on 24 March 1992.

6.  On 25 March 1992, the applicant was issued a permanent profile for degenerative joint disease of right ankle.

7.  A PEB was convened on 9 April 1992.

   a.  On 27 April 1992, the President of the PEB returned the applicant's MEB proceedings at the request of the hospital commander for further medical treatment of the applicant.

   b.  On 19 October 1992, the PEB Liaison Officer returned the MEB proceedings pertaining to the applicant, along with a current MEB Addendum, for reconsideration and further disability processing.

   c.  The MEB Addendum shows the applicant was diagnosed with:

* chondromalacia leading to early degenerative joint disease of his right ankle 
* probable chondromalacia and early osteoarthritis of his left ankle
* mechanical low back pain without organic findings
* mild synovitis of his left elbow

8.  On 9 November 1992, a PEB was conducted at Fort Sam Houston, TX.

	a.  The PEB proceedings show the applicant was diagnosed with chondromalacia leading to early degenerative joint disease of his right ankle manifested by pain on activity and inability to complete physical training (10%).

   b.  The remaining three diagnoses on the MEB Addendum were not unfitting and not rated.

   c.  On 4 December 1992, the applicant indicated with his initials and signature that he did not concur, he demanded a formal hearing with personal appearance, and requested a regularly appointed counsel to represent him.
9.  On 5 January 1993, a formal PEB convened.

   a.  The applicant appeared before the board and he was represented by counsel.

   b.  The PEB found the applicant's condition of chondromalacia leading to early degenerative joint disease of his right ankle manifested by pain on activity and inability to complete physical training as unfitting with a rating of 10%.

   c.  The remaining three diagnoses on the MEB Addendum were not unfitting and not rated.

   d.  On 15 January 1993, the applicant requested reconsideration of his PEB based on the fact that he believed he did not receive a full or fair hearing.  He also submitted a detailed statement concerning his previous medical discharge and his current medical conditions in support of his request for reconsideration.

    	(1)  He explained that, after he was medically discharged in 1987, he went to a Department of Veterans Affairs hospital in South Carolina.  A medical doctor told him there was a good chance his ankle injury could be corrected with an operation.  He wanted to reenter military service, so he had the operation.  The operation was a success and, after four months of rehabilitation, he was running 2 miles.

    	(2)  He met with an Army recruiter and was found to be administratively qualified for reentry.  He then underwent five different medical examinations and was found to be medically qualified to reenter the Army on 22 November 1989.

    	(3)  He asserted that he could still perform duties, within the limits of his physical profile, not requiring field duty.

   e.  On 2 February 1993, the President of the PEB notified the applicant that the PEB reviewed his rebuttal to the PEB findings.  After careful consideration, the PEB found that no change to the original findings was warranted.  The applicant was also informed, "The PEB determined your injury was not the direct result of combat or instrumentality of war.  The fact that you were in theatre, does not imply your injury was combat related."

10.  On 23 February 1993, the PEB was approved for the Secretary of the Army.

11.  On 19 April 1993, the applicant's request for continuance on active duty was denied.  Accordingly, he was ordered to be discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(3), with a disability rating of 10%.

12.  Headquarters,1st Infantry Division (Mechanized), Fort Riley, KS, Orders
120-00275, dated 30 April 1993, as amended by Orders 123-00209, dated 3 May 1993, discharged the applicant from the RA on 10 May 1993 with a disability rating of 10%.

13.  The applicant's DD Form 214 shows he was honorably discharged on 
10 May 1993 under the provisions of Army Regulation 635-40, paragraph
4-24b(3), based on physical disability (with severance pay).  He completed
3 years, 5 months, and 19 days of net active service this period; 11 years,
8 months, and 16 days of total prior active service; and 1 month and 6 days of total prior inactive service.

14.  In support of his request, the applicant provides a copy of his VA Compensation and Pension Award, Corporate Award and Rating Data, dated
14 February 2012, that shows:

	a.  service-connection was granted, effective 11 May 1993, for:

* degenerative changes, left ankle, residual
* residuals, left ankle injury due to fibulocalcaneal
* degenerative joint disease, right elbow
* bilateral pes planus
* hemorrhoids
* migraine headaches

   b.  service-connection was not granted for:

* calcium between ligaments, left knee
* calcium between ligaments, left elbow
* compound myopic astigmatism
* dysthymic disorder

15.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) sets forth policies, responsibilities, and procedures in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  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 his or her office, grade, rank, or rating.

   a.  The unfitness must be of such a degree that a Soldier is unable to perform the duties of his/her office, grade, rank, or rating in such a way as to reasonably fulfill the purposes of his/her employment on active duty.

   b.  Paragraph 4-24 (Disposition by the U.S. Army Physical Disability Agency (USAPDA) provides that the USAPDA will dispose of the case by publishing orders or issuing proper instructions to subordinate headquarters.  Based upon the final disposition of USAPDA, separation orders will be issued for physical disability with severance pay (Title 10, U.S. Code, section 1203 or 1206).
   
16.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30%.

17.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher VA rating does not establish error or injustice in the Army rating.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The VA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability.  Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at different disability ratings based on the same impairments.  Furthermore, unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while the VA (and some other government agencies) may rate any service connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his military records should be corrected to show he was discharged with a higher percentage of disability and placed on the permanent disability retired list was carefully considered.

2.  The evidence of record shows a PEB was conducted on 16 January 1987. The PEB found the applicant unfit for his left ankle pain due to fibulocalcaneal ligament strain (10%) and intermittent mechanical low back pain (10%).  He was awarded a total combined rating of 20% and separated with severance pay on
31 March 1987.

3.  The applicant reentered the RA on 22 November 1989.

4.  Records show:

   a.  An MEB was conducted on 19 February 1992 to evaluate the applicant's diagnosis of chondromalacia leading to early degenerative joint disease of his right ankle.  The MEB found the applicant's condition unfitting for military service and referred him to a PEB.  The applicant appealed the MEB findings, his appeal was considered, and the original findings and recommendation of the MEB were confirmed.

   b.  A PEB was convened on 9 April 1992; however, the President of the PEB returned the applicant's MEB proceedings at the request of the hospital commander for further medical treatment of the applicant.

   c.  A PEB was convened on 9 November 1992 to evaluate the applicant's diagnoses of:

* chondromalacia leading to early degenerative joint disease of his right ankle 
* probable chondromalacia and early osteoarthritis of his left ankle
* mechanical low back pain without organic findings
* mild synovitis of his left elbow

    	(1)  The PEB found the applicant's diagnosis of chondromalacia leading to early degenerative joint disease of his right ankle manifested by pain on activity and inability to complete physical training was unfitting and rated 10%.  The remaining three diagnoses on the MEB Addendum were not unfitting and not rated.

    	(2)  The applicant was granted a formal PEB.

   d.  A formal PEB convened on 5 January 1993 and affirmed the findings and recommendation of the informal PEB.

   e.  On 15 January 1993, the applicant requested reconsideration of his PEB and he submitted a statement in support of his request.

   f.   The PEB reviewed his rebuttal and determined that no change to the original findings was warranted.

   g.  The PEB findings and recommendation were approved on 23 February 1993.  Accordingly, the applicant was discharged based on a disability rating of 10% with severance pay.

5.  Thus, the evidence of record clearly shows the applicant's case was thoroughly reviewed and carefully considered throughout the physical disability evaluation process.  The available evidence does not show the Army misapplied either the medical factors involved or the governing regulatory guidance concerning the applicant's disability processing.  Therefore, the applicant's MEB/PEB proceedings are considered proper and equitable.

6.  Both statutory and regulatory guidance provide that the Army rates only conditions determined to be physically unfitting that were incurred or aggravated during the period of service.  Furthermore, the condition can only be rated to the extent that the condition limits the performance of duty.  The VA (and some other Government agencies) on the other hand, provides compensation for disabilities which it determines were incurred in or aggravated by active military service, including those that are detected after discharge, and which impair(s) the individual's industrial or social functioning.

7.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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)                                         AR20120012581



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ABCMR Record of Proceedings (cont)                                         AR20120012581



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