IN THE CASE OF:	  

		BOARD DATE:	  12 November 2013

		DOCKET NUMBER:  AR20130004690 


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 her DD Form 214 (Certificate of Release or Discharge from Active Duty) to show she was permanently retired due to disability.

2.  The applicant states she is not retired, nor does she receive any retirement pay or benefits.

3.  The applicant provides two DD Forms 214 and a Department of Veterans Affairs (VA) Rating Decision.

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.  Having prior Reserve service, the applicant enlisted in the Regular Army (RA) on 3 February 1987 and she held military occupational specialty 71L (Administration Specialist).  On 20 February 1987, she was assigned to the 7th Support Command, Germany. 

3.  On 26 July 1988, a medical evaluation board (MEB) convened and diagnosed her with the unfitting condition of unstable knees; the right knee was found to be moderate with effusions and the left knee mild with recurrent giving way.  The MEB recommended her referral to a physical evaluation board (PEB).

4.  On 25 August 1988, an informal PEB convened at Fort Gordon, GA, and confirmed her unfitting disability of instability of the right knee with tear of anterior cruciate ligament (ACL) in July 1987 and partial excision of medial meniscus in December 1987.  It required a brace and was rated as severe.  The left knee was found to not be ratable.  The PEB found the applicant's condition caused her to be physically unfit for further service and that her condition had not stabilized.  She was rated under VA Schedule for Rating Disabilities (VASRD) code 5257 and assigned a 30-percent disability rating.  The PEB recommended her retirement and placement on the Temporary Disability Retired List (TDRL) with a reexamination during August 1989.  

5.  On 26 August 1988, she concurred with the PEB’s findings and waived her right to a formal hearing.  

6.  The DD Form 214 she was issued shows she was honorably retired from active duty on 17 November 1988 by reason of physical disability - temporary and placed on the TDRL.   She completed 1 year, 9 months, and 15 days of creditable active service.

7.  On 8 March 1994, a TDRL reevaluation was conducted and found the applicant had not had a reevaluation done except for in November 1993.  At that time, she was anticipating surgery on her knee so the MEB was held back and her reevaluation rescheduled.  She was 4 weeks out from ACL reconstruction and was in a hinged knee brace.  She had three prior operations on her right knee, two arthroscopies, and a prior ACL reconstruction in June 1990.  The examining physician stated:

	a.  Her final level of function was not clearly determinable but a physical examination showed the right knee demonstrated a significant quadriceps atrophy and the range of motion was -5 to 110 degrees.  She had 1+ Lachman with a decent end point.  She did not specifically test pivot shift because of difficulty with pain and apprehension on her part.  The patellofemoral joint was mobile and not tender.  
	b.  She most recently underwent ACL reconstruction and, given her medial compartment narrowing and her post-meniscectomy status, it was doubtful she would ever be able to perform up to the physical standards required of active duty Soldiers.  The examining physician recommended she be permanently retired with a commensurate level of disability.

8.  In a rebuttal, dated 21 March 1994, the applicant stated she disagreed with the examining physician as she was currently in a functional brace for stability that she wore 24 hours every day and that it was her second ACL reconstruction surgery.  In addition, she stated her range of motion had been +5 to +110 and was still the same.

9.  On 18 April 1994, an informal PEB convened at Fort Lewis, WA, and found her condition of ACL deficient right knee, chronic, status post 2nd ACL reconstructions and medial meniscal tear resection, manifested by pain on motion, Lachman with a decent end point but with near full range of motion and lateral instability, rated as a moderate disability due to the use of a brace during recent post-operative therapy.  Her current evaluation stated her condition had not improved to the extent that she was fit for duty.  She was rated under VASRD code 5257 and assigned a 20-percent disability rating.  The PEB found her physically unfit with a combined rating of 20 percent and recommended she be removed from the TDRL and separated with severance pay, if otherwise eligible.  

10.  In a memorandum, dated 18 April 1994, issued by the PEB, Madigan Army Medical Center (MAMC), Tacoma, WA, she was notified of the PEB's findings, recommendations, and her election rights; the right to concur, the right to submit a rebuttal and waive a formal hearing, or to request a formal hearing.  The memorandum stated her statement of election had to be received by the PEB within 10 days of her receipt of the notice.

11.  Her records contain a U.S. Postal Department PS Form 3811 (Domestic Return Receipt), dated 21 April 1994, wherein it shows the applicant signed for her notification of her election rights on that date.

12.  Her records also contain a memorandum to the U.S. Total Army Personnel Command (PERSCOM), Alexandria, VA, dated 10 May 1994, issued by the PEB, MAMC, wherein a copy of the PS Form 3811 was forwarded and the memorandum stated the receipt shows the applicant was properly advised of her election rights but did not respond.  In accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) she was considered to have waived her right of election.

13.  Orders D148-3, dated 3 August 1994, issued by PERSCOM, removed her from the TDRL effective 3 August 1994 and discharged her because of permanent physical disability with a 20-percent disability rating and entitlement to severance pay.  On 3 August 1994, she was removed from the TDRL and her retired pay was terminated.

14.  The applicant provides a VA Rating Decision, dated 17 March 2011, wherein it shows she was granted service-connected disability for the following conditions:

* right total knee arthroplasty (previously rated as internal derangement, right knee status post ACL repair and degenerative joint disease (DJD) right knee) - rated at 100 percent effective 18 August 2010 and 30 percent from 1 October 2011
* chronic low back strain - rated at 10 percent effective 8 July 2010
* chronic kidney disease (claimed as kidney dysfunction secondary to medication used for right knee) - rated at 0 percent effective 8 July 2010
* evaluation for internal derangement, right knee status post ACL repair times 2) currently rated at 20 percent is continued
* evaluation of DJD, right knee, currently rated at 10 percent is continued
* evaluation of scars, currently rated at 10 percent is continued.

15.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (PDES).  Chapter 7 outlines procedures for administration and processing of Soldiers whose names are on the TDRL.  Paragraph 7-2 provides that an individual may be placed on the TDRL (for the maximum period of 5 years which is allowed by Title 10, U.S. Code, section 1210) when it is determined that the individual’s physical disability is not stable and he or she may recover and be fit for duty, or the individual’s disability is not stable and the degree of severity may change within the next 5 years so as to change the disability rating.   Paragraph 7-7 states medical examiners and adjudicative bodies will carefully evaluate each case and will recommend removal of the Soldier’s name from the TDRL as soon as the Soldier’s condition permits.  .

		a.  Permanent retirement.  If the Soldier meets the following criteria, the Soldier will be removed from the TDRL, permanently retired for physical disability, and entitled to receive disability retired pay: (a) the Soldier is unfit; (b) the disability causing the Soldier’s name to be placed on the TDRL has become permanent; and (c) the disability is rated at 30 percent or more under the VASRD, or the Soldier has at least 20 years of active Federal service.

		b.  Separation.  A Soldier will be removed from the TDRL and separated with severance pay if the Soldier (a) has less than 20 years of service; (b) is unfit because of the disability for which the Soldier was placed on the TDRL; and either the disability has stabilized at less than 30 percent; or the disability, although not stabilized, has improved so as to be ratable at less than 20 percent.  A former RA enlisted Soldier who would be separated under this authority may request a waiver to reenlist.

		c.  Fit for duty.  If a Soldier is determined physically fit to perform the duties of their office, grade, rank or rating (and is otherwise administratively qualified), former RA enlisted Soldiers, subject to their consent, will be reenlisted in their regular component in the grade held on the day before the date place on the TDRL, or in the next higher grade.  If the Soldier does not consent to reenlistment, TDRL status and disability pay will be ended as soon as possible.

		d.  Unfit, Not in Line of Duty:  A Soldier may recover from the disability resulting in placement on the TDRL.  If while on the TDRL the Soldier incurs another unfitting disability, the Soldier may be separated without benefits.  If the RA Soldier had completed 20 years or more of active service when placed on the TDRL, the Soldier may request voluntary retirement.

16.  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 20 percent.

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.  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 (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 (emphasis added).  The VA 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 evidence of record confirms that in August 1988 a PEB found the applicant to have the unfitting disability of instability of the right knee with tear of the ACL in July 1987 and partial excision of the medial meniscus in December 1987.  Her condition required her to wear a brace and was rated as severe.  She was assigned a 30-percent disability rating under the VASRD and, as her condition had not stabilized, she was retired by reason of temporary disability and placed on the TDRL.  

2.  The governing regulation states an individual may be placed on the TDRL for a maximum of 5 years.  Due to additional surgery, the applicant did not undergo another PEB until April 1994.  At that time her disability was not stable enough to for her to be fit for duty.  She was found to have near full range of motion and lateral instability, and her right knee disability was rated as moderate.  She was assigned a 20-percent disability rating under the VASRD and recommended for discharge with entitlement to severance pay.  

3.  The evidence of record shows she was properly notified of her election rights and due to a non-response she was presumed to have concurred with the PEB's findings.  In accordance with governing regulations she was subsequently removed from the TDRL and discharged with entitlement to severance pay.

4.  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 her right knee in April 1994.  The evidence of record does show and the applicant has not provided any evidence that shows she should have been given a higher rating at that time.  

5.  The evidence of record shows her physical disability evaluation was conducted in accordance with law and regulations.  Since this rating was less than 30 percent, by law she 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)                                         AR20130004690





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130004690



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1