IN THE CASE OF:	  

		BOARD DATE:  17 September 2013

		DOCKET NUMBER:  AR20130000665 


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, in effect, correction of his records to show he was medically retired vice discharged with severance pay. 

2.  The applicant states:

	a.  He joined the Army in 1984 and proudly served from then until 1996.  He was in perfect health until he suffered a tailbone injury from falling down a flight of stairs while stationed in Korea in 1986.  He injured his back and both knees.

	b.  He was fine the first couple of years, then he began having problems with his knees swelling and was in severe pain.  He went to the medical treatment facility a few times but was only given Motrin and ice packs.  In May 1987, he was stationed at Fort Carson, CO, and continued to have problems with his back and knees.

	c.  In October 1989, he was stationed in Germany and continued to have the same problems with his back and knees.  In March 1991, he was in a military vehicle on the way to the range and the vehicle was rear-ended by another military vehicle.  This caused him pain in his neck and upper and lower back.  He was struck in the knees with bolts protruding from the seat.  He was transported to the hospital and continued to receive treatment at the troop medical clinic.  

	d.  In August 1991, he was assigned to Fort Campbell, KY, and attended the basic noncommissioned officer course (BNCOC) where he continued to have problems.  The cadre thought he would have to drop out of BNCOC but he was determined to finish the course; he also went through Air Assault School and completed it as well.  In 1993, he was assigned to Korea again where he had the same problems with his back and knees both during and after physical training.  

	e.  While stationed at Fort Campbell, KY, his problems worsened.  X-rays revealed pieces of bone floating around in his knees and “telescopic” surgery was performed on both knees.  After the surgery, he was put on medical hold and the Army found him unfit for duty and said he would have to be discharged with severance pay.  He appealed to continue his service until his retirement; however, he was discharged with severance pay for his 12 years and 5 months of honorable service.  He went to the appeal board at Walter Reed Army Medical Center (WRAMC) to try to continue to serve or receive a medical retirement to no avail.  
   
   f.  The Army rated him at 10 percent for each knee but he did not receive anything for his back.  Upon his discharge, the Department of Veterans Affairs (VA) automatically granted him 10 percent disability for his back.  He should have been medically retired.  Since exiting the Army, he has suffered issues with his back and knees and has constantly had to get shots in his back.  

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty), a VA Rating Decision, and a letter.

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’s records show he enlisted in Regular Army on 17 May 1984 and he held military occupational specialty 92G (Food Service Specialist).  He served through several reenlistments and/or extensions and he was promoted to the rank/grade of sergeant first class (SFC)/E-7 on 1 July 1994.

3.  On 20 October 1994, he was assigned to Headquarters and Headquarters Company (HHC), 2nd Battalion, 101st Aviation Regiment, Fort Campbell, KY.

4.  His records contain an Optional Form 275 (Medical Record Report), dated 20 February 1995, wherein it shows he underwent a medical examination on that date for referral to a medical evaluation board (MEB).  This form further shows:

   a.  The chief complaint was listed as bilateral knee pain and one other condition was listed as nonspecific low back pain.  His past medical history, in part, stated he was diagnosed in 1995 with bilateral knee patellofemoral pain syndrome and underwent bilateral knee arthroscopy on 17 August 1995.  

   b.  The examining physician found his spine had normal curvature and motion, his upper extremities were normal, and he was within normal limits neurologically.  His left knee was found to have a range of motion of 0 to 140 degrees with medial and lateral joint line tenderness and a small effusion.  His right knee was found to have a range of motion of 0 to 140 degrees with no joint line tenderness or effusion noted.
   
   c.  He was diagnosed with bilateral knee chondromalacia and degenerative joint disease (DJD).  The examining physician recommended he be referred to an MEB.  

5.  On 13 March 1996, an MEB convened at Fort Campbell, KY, and found his bilateral knee chondromalacia and DJD to be medically unacceptable in accordance with Army Regulation 40-501 (Standards of Medical Fitness).  The MEB recommended he be referred to a physical evaluation board (PEB).  

6.  On 14 March 1996, he was given a permanent profile of "3" for the lower extremities based on his medical condition of bilateral knee chondromalacia/DJD.

7.  The DA Form 3947 (Medical Evaluation Board Proceedings) show the applicant did not desire to continue on active duty and on 21 March 1996, he concurred with the MEB findings and recommendations. 

8.  On 15 April 1996, an informal PEB convened at WRAMC and confirmed his unfitting disability of bilateral knee pain with arthroscopic findings of chondromalacia and DJD - no instability.  The PEB found the applicant's condition prevented him from performing the duties required of his grade and specialty and determined that he was physically unfit due his bilateral knee condition.  He was rated under the VA Schedule for Rating Disabilities (VASRD) codes 5257 and 5003 and assigned a combined 20 percent disability rating.  The PEB recommended he be separated with severance pay.
9.  On 7 May 1996, he non-concurred with the PEB recommendation and requested a formal hearing.

10.  On 6 August 1996, a formal PEB convened at WRAMC and after considering all the available medical evidence, his testimony, and comments of his counsel, the PEB confirmed his unfitting disability of bilateral knee pain with arthroscopic findings of chondromalacia and DJD - no instability.  The PEB found the applicant's condition prevented him from performing the duties required of his grade and specialty and determined that he was physically unfit due his bilateral knee condition.  He was rated under the VASRD codes 5257 and 5003, and assigned a combined 20 percent disability rating.  The PEB recommended he be separated with severance pay.  He was notified he had 10 days to appeal the decision.

11.  On 22 August 1996, he submitted a rebuttal to the formal PEB and stated he was attaching magnetic resonance imaging (MRI) results and, although he realized the MRI did not specifically show a herniated disk, there was some evidence of disc bulging.  He was experiencing a great deal of back pain that had gone on daily from May 1996.  He felt his overall medical condition warranted a rating of at least 30 percent.

12.  In a letter, dated 27 August 1996, the President, PEB, WRAMC, stated his rebuttal was received.  However, it did not contain any new substantive medical information that was not previously considered and the board affirmed the decision of the formal PEB that found him unfit with a disability rating of 20 percent.

13.  He was honorably discharged on 16 October 1996 in the rank of SFC by reason of disability with severance pay.  He completed 12 years and 5 months of creditable active service.

14.  The applicant provides a VA Rating Decision, dated 22 October 2012, wherein, in part, it shows as of 1 October 2012, he was assigned a:

* 40 percent disability rating for his thoracolumbar spine; previously evaluated as low back strain and as 10 percent disabling
* 40 percent evaluation of radiculopathy, right upper extremity; previously evaluated 0 percent disabling
* 30 percent evaluation of radiculopathy, left upper extremity; previously evaluated 20 percent disabling
* 20 percent evaluation of radiculopathy, right lower extremity; previously evaluated 0 percent disabling
* 10 percent evaluation of chondromalacia and DJD of the right knee; previously evaluated 10 percent disabling (emphasis added)
* 10 percent evaluation of chondromalacia and DJD of the left knee; previously evaluated 10 percent disabling (emphasis added)

15.  There is no evidence in his available medical records that shows he was ever found unfit to perform his duties due to a back injury/condition or that he was diagnosed with any back disorder/condition other than nonspecific low back pain while he was serving on active duty.

16.  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 physical disability to reasonably perform the duties of his office, grade, rank, or rating.  It states 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 (emphasis added).

17.  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 VASRD.  Ratings can range from 0 percent to 100 percent, rising in increments of 10 percent.

18.  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 rating of at least 30 percent.  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 percent.

19.  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 an error or injustice in the Army rating.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service (emphasis added).  The Army disability rating is to compensate the individual for the loss of a military career.  The VA does not have authority or responsibility for determining physical fitness for military service.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability (emphasis added).  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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant was given a permanent profile of "3" for the lower extremities based on his medical condition of bilateral knee chondromalacia and DJD.  On 13 March 1996, an MEB found only his bilateral knee condition to be medically unacceptable.  There is no evidence of record to show his back condition limited his performance of duties.

2.  The applicant’s contention that he suffered from back pain while serving on active duty is noted; however, the evidence of record does not show and he has not provided any evidence that shows he was ever found unfit to perform his duties due to a back injury/condition while he was serving on active duty.  The mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In accordance with governing regulation, only unfitting conditions and those which contribute to unfitness are considered under the PDES.

3.  On 15 April 1996, an informal PEB confirmed his unfitting disability of bilateral chondromalacia and DJD, assigned him a combined 20 percent disability rating, and recommended he be separated with severance pay.  

4.  On 6 August 1996, a formal PEB reviewed all the available and appropriate evidence.  There were no other unfitting conditions found.  The PEB recommended separation with entitlement to severance pay with a 20 percent disability rating.  He disagreed with the PEB's recommendation, apparently requesting he be rated for his back pain; however, he did not submit any substantiating evidence to support a higher rating and the PEB recommendation was affirmed.  

5.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and can only be accomplished through the PDES.  The evidence of record shows the applicant was properly rated at 20 percent for both knees.  The evidence of record does not support, and the applicant has not provided any evidence that supports, a rating for a back disorder or any other medical condition.  His physical disability evaluation was conducted in accordance with law and regulations.  Since this rating was less than 30 percent, by law he was only entitled to severance pay.

6.  In view of the forgoing, there is insufficient evidence to grant the requested relief in this case.

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)                                         AR20130000665





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ABCMR Record of Proceedings (cont)                                         AR20130000665



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