IN THE CASE OF:	  

		BOARD DATE:	    26 March 2014

		DOCKET NUMBER:  AR20130008282 


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 reconsideration of his earlier request for correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 3 June 2004 to show he received a medical retirement with more than 20 years of service.

2.  He states he has submitted proof of the errors made by this Board when denying his petition.  He identified errors listed on various pages between 1 and 8 of his previous Army Board for Correction of Military Records (ABCMR) Record of Proceedings dated 4 January 2013.  

	a.  Page 1:

(1) He does not have an under other than honorable conditions discharge 
in his record.
   
   (2)  There was no disagreement with his Commander or request for an 
under other than honorable conditions discharge.

         (3)  This information belongs to someone else because this never happened during his period of service.  There was no mistake in the character of his service.  It appears that someone else's record must have been received at the same time his case was reviewed.



	b.  Page 2:

		(1)  He served in Camp Long, Korea from 1983 to 1984 and was stationed at Dugway Proving Grounds, UT from 1984 to 1985.  He was hospitalized at Fitzsimons Army Medical Center (FAMC), CO, from 1985 to 1986.

		(2)  On 2 June 1991, he was discharged from active duty while assigned to the 170th Military Police Company in Garlstedt/Bremerhaven, Germany.

	c.  Page 3:

        (1)  On 10 January 1993, he reinjured his ankle, while he was a member of the Georgia Army National Guard (GAARNG).  The injury was determined to have been incurred in the line of duty (LOD).  

		(2)  He was treated for his left ankle injury on 12 and 20 January 1993.  He reinjured his knee while he was on 2 weeks of active duty at Robins Air Force Base Hospital, GA.  His ankle was injured in 1985 and 1986 and he had surgery at FAMC.

		(3)  He was on active duty from 3 September 2003 to 7 June 2004.  The medical board convened at Fort Stewart, GA.  On 3 June 2004, his medical records were released at Fort Stewart and Hunter Airfield Base.

		(4)  On 19 August 2003, he underwent a medical examination at Fort Stewart, GA which listed low back pain with fusion from 2001.  This injury was continually aggravated since his injury in basic training.  He also had acid reflux with Barrett's esophagus, left ankle fracture operation in 1985, and bilateral knee arthritis, which all occurred while he was on active duty.  

	d.  Page 4:

		(1)  He was given a physical profile for degenerative joint disease of the knees, neck, and shoulder pain while on active duty.  The Medical Evaluation Board (MEB) was held at Fort Stewart, GA.

		(2)  He was given a physical profile for degenerative disc disease cervical and lumbar spine while on active duty.

		(3)  The MEB diagnosed him as having neck pain, interbody fusion of C5 and C6, mild; mild to moderate degenerative disc disease of the cervical spine; low back pain sacral fusion; moderate degenerative disc disease of the lumbar spine bilateral patellofemoral arthrosis/arthritis of the right and left knee; and moderate left ankle degenerative joint disease with surgery in 1985 at FAMC.

		(4)  On 26 March 2004, the Physical Evaluation Board (PEB) considered his bilateral knee pain due to patellofemoral arthritis unfit, existed prior to service and permanently aggravated by an LOD injury on 12 August 2003.  The original injury was not pre-existing.  

   e.  Page 7:

		(1)  He was seen for back pain on 14 September 1983, while in basic training at Fort McClellan, AL.

		(2)  He was on active duty in 1984 at Camp Long, Korea and was given a profile for possible seizure disorder.
   
   f.  Page 8:

		(1)  He was seen for knee and back pain at Madigan Army Medical Center, Fort Lewis, WA, but this was not the first time.

		(2)  He was treated for his knees in Heidelberg, Germany on 27 November 2002 while on active duty.

		(3)  His discharge date of 27 May 2004 was wrong and it was changed to 3 June 2004.  His DD Form 214 shows he received an honorable discharge with severance pay.

		(4)  His orders show he has 20 years of service and his DD Form 214 states he was discharged with severance pay.

3.  He states the PEB proceedings show only knees aggravated by service, which were injured on active duty and in LOD.  He listed his periods of active duty and active duty deployments.  The Department of Veterans Affairs (VA) granted service-connection for lower back strain; degenerative joint disease     left ankle; bilateral knee pain; degenerative joint disease; and chronic gastroesophageal reflux disease, Barrett's esophagus from 1991 to 1995.  

4.  The failure of the MEB/PEB to consider and rate all service-connected injuries and illnesses resulted in a clear and unmistakable error by not following prescribed guidelines.  Severance pay was repaid to the VA in full in 2012.  


5.  He provides:

* Letter from the ABCMR, dated 9 January 2013
* Four DD Forms 214 (Certificate of Release or Discharge from Active Duty) for the periods ending 2 June 1991, 11 May 2002, 1 April 2003, and 3 June 2004
* Several medical documents
* Two DA Forms 2173 (Statement of Medical Examination and Duty Status), dated 28 March 2003 and 24 March 2004
* MEB Proceedings, dated 5 November 2003
* Memorandum, Subject:  Letter of Intent (LOI) for MEB Processing, dated 27 August 2003

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20120008734 on 4 January 2013.  

2.  The previous ABCMR Record of Proceedings forwarded to the applicant had the incorrect Docket Number AR20120010791 on page 1 and included information that did not concern him or his request.  A Corrected Copy of page 1 will be provided to the applicant for his records.

3.  The applicant has provided new arguments and some new medical documents that will be considered by the Board.  

4.  The applicant enlisted in the Regular Army (RA) on 6 September 1983.  He completed the required training and was awarded military occupational specialty (MOS) 95B (Military Police - later converted to MOS 31B).  He served in Korea from 30 January 1983 to 29 January 1985.

5.  He provided several medical documents for this period to include an/a:

	a.  Standard Form (SF) 600, showing he was treated for back pain and sharp abdominal pain on 14 September 1983 at the Troop Medical Clinic, Fort McClellan, AL.

	b.  DA Form 3647 (Inpatient Treatment Record Cover Sheet), showing he was treated on 9 March 1984 at the 121st Evacuation Hospital in Korea and was diagnosed with possible seizure disorder.  His Physical Profile Board Proceedings indicate he was placed on a permanent physical profile for possible seizure disorder.
	c.  SF 513 (Consultation Sheet), showing he was treated in the Emergency Room on 16 February 1985 after he had a motorcycle accident and was diagnosed with a medial malleolus fracture of his left ankle.  

	d.  SF 600, showing he was treated at a U.S. Army Health Clinic in Dugway, UT on 21 October 1985 for a right ankle injury.  This form indicates he twisted his ankle while hunting.  

	e.  SF 513, showing he requested a follow-up visit at Podiatry, Hill Air Force Base, UT on 3 March 1986 for medial malleolus fracture of his left ankle with residual pain.

	f.  SF 600, showing he was treated on 8 April 1986 for persistent left ankle pain at Orthopedic Services, U.S. Air Force Hospital, Hill Air Force Base, UT.

   g.  SF 502, showing he was admitted to FAMC on 30 June 1986 for left ankle pain and he was discharged on 12 July 1986.  

	h.  SF 558 (Emergency Care and Treatment) and an SF 600 both indicate he was treated at the U.S. Army Health Clinic in Dugway, UT for an open incision on the lateral aspects of his left ankle.  These documents also indicate he had surgery on his left ankle on 11 August 1986 at FAMC.

6.  He was honorably released from active duty on 29 September 1986 and transferred to a Reserve unit.  

7.  On 10 December 1986, prior to entering a second RA enlistment, he was referred for an orthopedic consultation for his left ankle and foot.  The examining physician noted "no ortho problem."  

8.  He enlisted again in the RA on 3 February 1987.  

9.  He provided the following medical documents which indicate:

   a.  Two DA Forms 5181-R (Screening Note of Acute Medical Care) showing  he was evaluated on 10 March and 22 May 1987 for pain in both knees and lower back pain at Madigan Army Medical Center.

   b.  A DA Form 5181-R, showing he was evaluated on 6 October 1987 for complaining of a left ankle sprain.  The applicant stated he injured his ankle while playing football the previous day.
   
	c.  An SF 513, showing he was referred to Podiatry Clinic, Madigan Army Medical Center, Fort Lewis, WA on 4 November 1987 for left foot pain.

	d.  A Radiologic Consultation Request/Report, showing he underwent a bone scan on both feet for comparison.  The examining physician noted "Small focus of abnormal uptake in left foot lateral aspect near the junction of calcaneous, cuboid and navicular bones, consistent with either a small focus of arthritis, possible uptake by sinus tract, but cannot exclude possibility of a small chip fracture of the anterior upper lip of the calcaneous."  

10.  He was honorably discharged on 2 June 1991 at his expiration term of service.

11.  On 8 January 1992, he underwent a medical examination for the purpose of enlisting in the ARNG.  He reported having broken a bone in his left ankle in 1986.  The examining physician noted no defects and found him qualified for enlistment.  

12.  On 13 February 1992, he enlisted in the GAARNG and he was discharged on 3 August 1992.  He was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) by reason of incompatible occupation.

13.  On 30 November 1992, again he enlisted in the GAARNG.

14.  A DA Form 2173, signed by an assistant adjutant for his commander on 12 January 1993, shows he injured his ankle on 10 January 1993 while performing the Army Physical Fitness Test (APFT).  The injury was determined to have been incurred in the LOD.  

15.  Medical records show he was seen on 12 January 1993 for a left ankle sprain.  He was seen again on 20 January 1993, and the examining medical provider noted he felt the applicant's "situation warrants evaluation for fitness in the military."  

16.  His DA Form 705 (APFT Scorecard) indicates he failed to pass his APFT in July 1994.  On 30 July 1994, he requested release from the GAARNG due to not being able to pass the APFT and conflict with his civilian employment.  On
1 January 1995, he was discharged from the GAARNG and transferred to the USAR Control Group (Reinforcement).

17.  He was honorably discharged from the USAR on 17 February 1998.

18.  On 19 December 1998, he enlisted in the USAR.  On 31 March 2000, he was released from a Troop Program Unit (TPU) and assigned to the USAR Control Group (Reinforcement) due to an employment conflict.

19.  On 31 October 2001, he reenlisted in the USAR.  During this enlistment, he served on active duty from 4 November 2001 to 1 May 2002 and from 7 July 2002 to 1 April 2003.  He was transferred from the USAR Control Group (Reinforcement) to a TPU on 10 April 2003.  

20.  He provided a DA Form 2173, dated 28 March 2003, which was initiated based on an injury he sustained in November 2002.  The DA Form 2173 shows he was diagnosed with right anterior knee pain.  This form stated the injury occurred while the applicant was on active duty.  In November 2002, the applicant bent down to pick something up and he felt a pop in his knee.  He experienced pain and swelling in his right knee.  This form shows the physician rendered a presumptive determination that the applicant's injury was incurred in LOD.  However, no formal LOD was required.  

21.  On 19 August 2003, he underwent a medical examination due to reaching 40 years of age.  The examining physician noted the applicant had:

* low back pain with fusion in past and neck pain with fusion
* acid reflux with Barrett's esophagus
* left ankle pain after fracture and 1985 operation
* bilateral knee arthritis

22.  A memorandum, dated 27 August 2003, indicates the applicant did not meet retention standards under the provisions of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, paragraph 3-14c and would be processed by an MEB to determine fitness for further military service.  

23.  On 28 August 2003, he was given a permanent physical profile for degenerative joint disease of knees, neck and shoulder pain.  The DA Form 3349 documenting the profile shows an MEB had been initiated.

24.  On 3 September 2003, he was ordered to active duty for the purpose of active duty medical extension.  He was assigned to the U.S. Army Medical Activity Patient Holding Detachment, Fort Stewart, GA.  

25.  On 9 October 2003, he was given a permanent physical profile for [degenerative disc disease] cervical and lumbar spine; bilateral patellofemoral arthritis; [degenerative joint disease] left ankle.  The DA Form 3349 documenting the profile shows he was not to take the APFT and that a medical board was to be initiated.

26.  On 5 November 2003, he was evaluated by an MEB and was diagnosed with:

* neck pain, status post interbody fusion of C5 and C6, mild; mild to moderate degenerative disc disease of the cervical spine
* low back pain, status post lumbar sacral fusion; moderate degenerative disc disease of the lumbar sacral spine
* bilateral patellofemoral arthrosis/arthritis (right and left knee)
* moderate left ankle degenerative joint disease

27.  Each of the diagnoses listed in the MEB Proceedings were found to have existed prior to service.  None were found to have been incurred while entitled to base pay.  One diagnosis, bilateral patellofemoral arthrosis/arthritis of the right knee, was found to have been permanently aggravated by service.  The MEB Proceedings show he was referred to a PEB.  

28.  On 21 November 2003, he indicated he agreed with the MEB findings and recommendation.

29.  He provided a DA Form 2173, dated 24 March 2004, which was initiated based on an injury he sustained in February 1985.  This DA Form 2173 shows he was diagnosed with medial malleolus of the left ankle resulting from a motorcycle accident.  This form stated the injury occurred while the applicant was on active duty.  On 16 February 1985, he was riding his motorcycle to his duty post at Fort Benning, GA and lost control around a curve, went up an embankment, and upon going back down the same embankment he came to an abrupt stop and the motorcycle fell on his left ankle.  This form shows the physician rendered a presumptive determination that the applicant's injury was incurred in LOD.  However, no formal LOD was required.  

30.  On 26 March 2004, a formal PEB convened to consider the applicant's fitness for continued service based on the MEB diagnoses.  The PEB found the MEB diagnosis of chronic bilateral knee pain due to patellofemoral arthritis 
(VA Schedule for Rating Disabilities (VASRD) code of 5003) was unfitting, existed prior to service, and was permanently aggravated by a LOD injury incurred on 12 August 2003.  The PEB recommended a 20 percent (%) disability rating and separation with severance pay if otherwise qualified.  The PEB found the remaining MEB diagnoses were not unfitting and, therefore, the conditions were not rated.

31.  On 2 April 2004, the applicant indicated he did not concur with the PEB findings and recommendation.  He indicated he did not wish to submit a statement of rebuttal.  He acknowledged he understood that if he did not submit a statement explaining his reasons for disagreement, his case could be forwarded for final disposition action without review by the U.S. Army Physical Disability Agency (USAPDA).

32.  The record includes an undated statement signed by the applicant, in which he requested his medical board paperwork be reevaluated to increase his disability rating to 40% for left ankle injuries incurred on active duty from September 1983 to June 1991.  He stated, in part, that pain in his ankle, back, neck, and knees prevented him from performing physical training.  He stated that after 19 years in the Army he did not want "20% cash" but did want his "medical benefits ID card 30% or more."

33.  On 6 April 2004, he was notified that the PEB had considered his rebuttal to the formal PEB findings and, after careful consideration, found no change to the original findings was warranted.  

34.  On 4 May 2004, he was notified the USAPDA had noted his disagreement with the PEB findings and reviewed his case.  The USAPDA concluded his case was properly adjudicated by the PEB, which correctly applied the rules of the Physical Disability Evaluation System (PDES) in making its determination.  

35.  The record shows the USAPDA approved the PEB findings and recommendation on 4 May 2004.

36.  On 3 June 2004, he was honorably discharged for disability with severance pay.  His DD Form 214 for this period shows in:

* item 9, "USAR CON GP (IMA) AR-PERSCOM, 9700 PAGE BLVD, ST LOUIS, MO 63132"
* item 12c (Net Active Service this Period), "0000  09  01"
* item 12d (Total Prior Active Service), "0009  01  21"
* item 12e (Total Prior Inactive Service), "0011  00  27"

37.  His record includes an MOS/Medical Retention Board (MMRB) Summary showing an MMRB convened on 29 June 2006.  The MMRB recommended the applicant be reclassified due his inability to perform duties in his MOS.  The convening authority approved the findings and recommendations. 

38.  On 30 June 2006, the MMRB convening authority submitted a recommendation to the Commander, U.S. Army Human Resources Command-St. Louis (HRC-STL), that the applicant be reclassified from MOS 31B into a less physically demanding MOS.

39.  In a memorandum to the Office of the Command Surgeon/Medical Board, dated 28 July 2006, the applicant stated if he were given a profile that allowed him to carry a 9mm handgun, there would be no need to change his MOS.  He stated that as a military police noncommissioned officer (NCO) there were many jobs he could do with his profile, such as desk sergeant, training NCO, traffic investigator, or patrol supervisor.

40.  On 21 September 2007, the applicant executed an Oath of Extension of Enlistment or Reenlistment extending his USAR enlistment for 6 months.

41.  In a memorandum to an unspecified Surgeon General's office, dated 30 September 2007, he requested the MMRB change its finding and reclassify him into MOS 42A (Human Resources Specialist).  He asked to be given a chance to finish his time in the USAR as a military policeman, as he had 10 more years to go for retirement.  He indicated his duty performance had not been affected by his physical profile.

42.  On 9 October 2007, the Assistant to the Command Surgeon, Physical Review Board, HRC-STL, assigned the applicant a 30-day temporary profile to allow him to obtain current medical evaluations and treatment and to provide copies of evaluations, diagnostic reports, and medical records.  

43.  On 15 November 2007, the applicant passed the APFT.  He completed a 2.5-mile walk as an alternate aerobic event in lieu of the 2-mile run.  

44.  On 23 April 2008, the Assistant to the Command Surgeon, Physical Review Board, HRC-STL, found the applicant did not meet medical retention standards based on the following diagnoses:

* "cervical spine degenerative disk disease, fusion with retained hardware (plate, screws)”
* "lumbar spine degenerative disk disease, fusion (07/2001) with retained hardware (cage, screws)"
* "bilateral knee pain:  degenerative joint disease"
* "left ankle pain:  s/p injury & surgery (1985)"
* "chronic gastroesophageal reflux disease, Barrett's esophagus"

45.  The Assistant to the Command Surgeon determined the applicant was nondeployable until cleared by a spine surgeon, orthopedic surgeon, and gastroenterology physicians.  
46.  On 23 April 2008, the applicant was given a permanent physical profile based on the conditions listed by the Assistant to the Command Surgeon.
The applicant's transaction history in Integrated Web Services shows an entry dated 16 June 2008 stating his case was closed as he should have been discharged in 2004.  The entry indicates a discharge memo was written and forwarded for issuance of orders.

47.  On 30 January 2009, a DD Form 215 (Correction to DD Form 214) was issued amending item 9 of his DD Form 214 for the period ending 2 June 2004 to read "NA."

48.  His Chronological Statement of Retirement Points shows he completed 13 years, 1 month, and 25 days of service qualifying for retirement.  

49.  Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment, retention, separation, and retirement.  

   a.  Chapter 3 provides guidance on the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required for service.  These medical conditions and physical defects, individually or in combination, are those that significantly limit or interfere with the Soldier’s performance of their duties; may compromise or aggravate the Soldier’s health or well-being if the Soldier were to remain in the military Service (this may involve dependence on certain medications, appliances, severe dietary restrictions, or frequent special treatments, or a requirement for frequent clinical monitoring); may compromise the health or 
well-being of other Soldiers; or may prejudice the best interests of the Government if the individual Soldier were to remain in the military Service.  

   b.  Paragraph 7-11a(3)(e) states that Item 4 of the DA Form 3349 will specify the profile type - temporary or permanent.  If the profile is permanent, the profiling officer must assess if the Soldier meets the retention standards of Army Regulation 40-501, chapter 3.  Those Soldiers who meet retention standards but have at least a permanent 3 or 4 PULHES serial will be referred to an MMRB in accordance with Army Regulation 600–60 (Physical Performance and Evaluation System), unless waived by the MMRB convening authority.  Those Soldiers who do not meet retention standards must be referred to an MEB per chapter 3.  

   c.  Chapter 10 provides guidance on the basic policies, standards, and procedures for medical examinations and physical standards for ARNG and ARNG of the United States (ARNGUS) Soldiers.  Paragraph 10-25 relates to ARNG and ARNGUS Soldiers pending separation for failing to meet medical retention standards.  Sub-paragraph 10-25b states: 
   (1)  Soldiers' non-duty related impairments are eligible to be referred to a 
PEB solely for a fitness determination, but not a determination of eligibility for disability benefits. 

   (2)  Soldiers pending separation for In the Line of Duty (ILOD) injuries or illnesses will be processed in accordance with Army Regulation 40–400 (Physical Evaluation for Retention, Retirement, or Separation) and Army Regulation 
635-40 (Physical Evaluation for Retention, Retirement, or Separation).

50.  Army Regulation 635-40 establishes the Army PDES and sets forth policies, responsibilities, and procedures that govern the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.

   a.  Paragraph 3-4 provides that under the laws governing the Army PDES, Soldiers who sustain or aggravate physically unfitting disabilities must meet the following LOD criteria to be eligible to receive retirement and severance pay benefits:  (1) the disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training; and (2) the disability must not have resulted from the Soldier’s intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence.

   b.  Paragraph 8-2 states that Soldiers of the Reserve Components are eligible for disability processing from an injury determined to be the proximate result of performing annual training, active duty special work, active duty for training, or inactive duty training.

   c.  Paragraph 8-6 states that when a commander believes that a Soldier not on extended active duty is unable to perform his or her duties because of physical disability, the commander will refer the Soldier for medical evaluation.  The Medical Treatment Facility (MTF) commander having primary medical care responsibility will conduct an examination of a Soldier referred for evaluation.  The commander will advise the Soldier’s commanding officer of the results of the evaluation and the proposed disposition.  If it appears the Soldier is not medically qualified to perform duty, the MTF commander will refer the Soldier to an MEB.  If the Soldier is not eligible for referral to a PEB, the MTF will notify the Soldier's unit commander for disposition under applicable regulations.

   d.  Paragraph 8-9 states that a Soldier not on extended active duty, who is unfit because of physical disability:



   (1)  May be permanently retired or have his or her name placed on the 
TDRL, if:
   
* he or she has at least 20 years of service
* their disability is rated at 30 percent or more
* his or her disability occurred in the LOD, and is the proximate result of performing active duty or active duty training (IDT)

   (2)  May be separated with severance pay if:

* his or her disability is rated at less than 30 percent
* he or she has less than 20 years of service
* their disability occurred in the LOD, and is the proximate result of performing active duty or IDT

   	(3)  May forfeit severance pay; be transferred to the Retired Reserve; and receive under the provisions of Title 10, U.S. Code, Section 12731, (10 USC 12731) nondisability retired pay at age 60, if at least 20 qualifying years of service for retirement have been completed and transfer to the retired Reserve is requested.  According to the provisions of 10 USC 1209 and 1213 all rights to receive retired pay at age 60 are forfeited if disability severance pay is accepted instead of transfer to the Retired Reserve.  Disability severance pay (unlike readjustment and separation pay) cannot be repaid for the purposes of receiving retired pay.
   
51.  Army Regulation 635-40, appendix B, states the VASRD is primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  Because of differences between Army and VA applications of rating policies, differences in ratings may result.  Unlike the VA, the Army must first determine whether or not a Soldier is fit to reasonably perform the duties of his office, grade, rank, or rating.  Once a Soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VASRD.  These percentages are applied based on the severity of the condition at the time of separation.  

52.  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 rated at least 30%.

53.  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 rated at less than 30%.  Section 1212 provides that a member separated under section 1203 is entitled to disability severance pay.

54.  Title 10, U. S. Code, sections 12731 through 12739 authorize retired pay for Reserve Component military service.  Under this law, a Reserve Soldier must complete a minimum of 20 qualifying years of service to be eligible for retired pay at age 60.  After 1 July 1949, a qualifying year is one in which a Reserve Soldier earned 50 retirement points or more.  The term "good years" is an unofficial term used to mean years in which 50 or more retirement points are earned during each year, and which count as qualifying years of service for retirement benefits at age 60.

55.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the failure of the MEB/PEB to consider and rate all service-connected injuries and illnesses resulted in a clear and unmistakable error by not following prescribed guidelines.  However, the evidence of record does not show an error or injustice exists in this case.

2.  On 5 November 2003, he was evaluated by an MEB which found he had neck pain, status post interbody fusion of C5 and C6, mild, low back pain, status post lumbar sacral fusion, bilateral patellofemoral arthrosis/arthritis (right and left knee), and moderate left ankle degenerative joint disease.  His diagnosis of bilateral patellofemoral arthrosis/arthritis of the right knee was found to have been permanently aggravated by service.  He agreed with the MEB findings and recommendation.  

3.  His service record is void of evidence which indicates he had any additional unfitting medical conditions.  

4.  On 26 March 2004 a formal PEB found the applicant unfit for military service for chronic bilateral knee pain due to patellofemoral arthritis with a 20% disability rating.  The PEB found this condition existed prior to service and was permanently aggravated by a LOD injury incurred on 12 August 2003.  The PEB found the remaining MEB diagnoses were not unfitting and, therefore, the conditions were not rated.  He did not concur with formal PEB findings but did not submit a statement of rebuttal.  At that time, he acknowledged he understood his case could be forwarded for final disposition action without review by USAPDA.  
5.  The evidence of record shows he later submitted a statement requesting his medical board paperwork be reevaluated to increase his disability rating to 40% for left ankle injuries incurred on active duty from September 1983 to June 1991.

6.  In May 2004, the USADA determined his case was properly adjudicated by the PEB, which correctly applied the rules of the PDES in making its determination and approved the PEB findings and recommendation.  As a result he was discharged from active duty under the provisions of Army Regulation 635-40 by reason of disability with severance pay.  At the time of his discharge, he had completed 13 years, 1 month, and 25 days of qualifying service towards retired pay at age 60.  His service record is void of evidence which shows he completed 20 qualifying years of service.

7.  For an unknown reason, his discharge from the Army was not made known to the USAR.  He continued as a USAR asset for several years.  In 2006, an MMRB convening authority recommended to the Commander, HRC-SL that the applicant be reclassified.  In July 2006, he stated that if he were given a profile that allowed him to carry a 9mm handgun there would be no need to change his MOS (even though his medical conditions had been connected to his back, knees, and ankles).  In September 2007, he asked to be given a chance to finish his time in the USAR as a military policemen, indicated his duty performance had not been affected by his physical profile.

8.  In June 2008, it was finally realized that he had been discharged in 2004 and all further medical board processing was halted.  However, his arguments in 2006/2007 that his duty performance had not been affected by his physical profile certainly militates against his current argument that he should have received a medical retirement.

9.  The law provides for retirement of a member who has at least 20 years of service or a disability rated at least 30%.  Since there is insufficient evidence to show he should have been given a rating greater than 20% he did not meet the requirements for a medical retirement.

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 to amend the decision of the ABCMR set forth in Docket Number AR20120008734, dated 4 January 2013.



      _____________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)                                         AR20130008282



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ABCMR Record of Proceedings (cont)                                         AR20130008282



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