IN THE CASE OF:
BOARD DATE: 27 February 2014
DOCKET NUMBER: AR20130011886
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 that his discharge be voided and that he be retired or separated by reason of permanent disability.
2. The applicant states, in effect, that he had a permanent P-3 profile and was pending a medical board when he came down on orders for Korea with a year and a half left in service. He continues by stating that when he returned from Korea and was in-processing at Fort Bragg, North Carolina it was noticed that he had a profile and was supposed to be evaluated by a medical board and was placed in a medical hold unit. He also states that his expiration term of service (ETS) date came up and he was told to out-process and the Department of Veterans Affairs (VA) would take care of him; however, such has not been the case. He concludes by stating that he has since found out that he should have been held over past his ETS date to finish his medical board and the VA will not give him benefits because he did not receive a board while in an active Army status. He is now in need of a new leg brace and the VA will not provide it.
3. The applicant provides copies of documents from his medical 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 enlisted in the Regular Army as a telecommunications operator on 2 June 1994. He was involved in a motor vehicle accident in September 1995 while riding a motorcycle that resulted in an injury to his left knee and required reconstructive surgery. He served until he was honorably released from active duty at Fort Bragg, NC, on 1 September 1997, due to completion of required service.
3. He again enlisted in the Regular Army on 30 November 1998 for a period of
3 years and assignment to Fort Bragg. On 19 October 1999, he underwent a medical/physical examination and was determined to be qualified for retention.
4. He departed for Korea in February 2000 and on 11 December 2000 he was issued a P3 profile for Posterior Cruciate Ligament (PCL) of the left knee. The profile indicates that he must wear a PCL brace, a Military Occupational Specialty Medical Review Board was recommended, and he was given profile limitations of no jumping, flight status, and removal from jump status.
5. He completed his 1-year tour and was returned to Fort Bragg and was assigned to Company D, 327th Signal Battalion until he was honorably discharged on 29 November 2001 due to completion of required service.
6. A review of the available records failed to show his final medical/physical examination or any evidence that his condition was unfitting at the time of separation or evidence to show that he could not perform his duties. Additionally, there is no evidence to show that he was being processed under the Physical Disability Evaluation System (PDES).
7. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. 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.
8. Title 38, U.S. Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. An award of a VA rating does not establish error or injustice on the part of the Army. 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 affects the individual's employability.
9. The Army's determination of a Soldier's physical fitness or unfitness is a factual finding based on the individual's ability to perform the duties of his or her grade, rank, or rating. If the Soldier is found to be physically unfit, a disability rating is awarded by the Army and is permanent in nature. The Army system requires that the Soldier only be rated as the condition(s) exist(s) at the time of the Physical Evaluation Board hearing. The VA may find a Soldier unfit by reason of a service-connected disability and may even initially assign a higher rating. The VA's ratings are based on an individual's ability to gain employment as a civilian and may fluctuate within a period of time depending on the changes in the disability.
DISCUSSION AND CONCLUSIONS:
1. While the applicant has provided documents from his medical records showing that he was injured while on active duty, he has failed to show through sufficient evidence of record or evidence submitted with his application that his injuries were deemed unfitting or that he could not perform his duties.
2. It is also noted that the applicants knee injury occurred during his first enlistment and not only was he deemed fit for separation during his first enlistment, he was deemed fit for enlistment and subsequently for retention during his second enlistment.
3. Therefore, in the absence of evidence to show that he was unfit for retention at the time of separation, there appears to be no basis to grant his request for disability separation or retirement or to provide the applicant with an evaluation under the PDES.
4. 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) AR20130011886
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ABCMR Record of Proceedings (cont) AR20130011886
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