MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            19 May 1999                  
	DOCKET NUMBER:   AR1999021188

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Loren G. Harrell		Director	
	Ms. Deborah L. Brantley		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Robert G. Hinkle		Member	
	Mr. Roger W. Able		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether the application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

The Board considered the following evidence:

	Exhibit A - Application for correction of military records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  In effect, that his Army disability rating be increased to provide for disability retirement.  He states, in effect, that he should be granted a higher rating “for financial compensation.”  He notes that he was denied medical attention and as such should be appropriately compensated.  He states that his injury has still not healed and his “lifely activities have been disrupted.”  In support of his request he submits a copy of his Medical Evaluation Board summary.

PURPOSE:  To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.

EVIDENCE OF RECORD:  The applicant's military records show:

He enlisted in the Army Reserve and entered active duty on 6 July 1989 for the purpose of undergoing basic training.

Documents contained in his file indicate that he was initially seen at Walson Army Community Hospital at Fort Dix, New Jersey on 22 August 1989 with a “diagnosis of a nondisplaced fracture through the 2nd metatarsal shaft of the left foot and a nondisplaced fracture through the 3rd metatarsal shaft of the left foot.”  In spite of the injury the applicant continued to participate in training and ultimately return to the hospital in late September 1989 and underwent a series of treatments.

On 9 January 1990 the applicant was issued a permanent physical profile which prohibited, among other things, crawling, stooping, running, jumping, handling of heavy equipment, including weapons and no strenuous physical activities.

A 14 February 1990 Medical Evaluation Board concluded the applicant should be referred to a Physical Evaluation Board (PEB) with a diagnosis of “completed stress fracture of the 2nd metatarsal of the left foot, healed with excessive callus formation and symptomatic residuals.”  His physical examination noted that the applicant had “a diminished range of motion with some mild pain on range of motion of the 2nd toe.”

An informal PEB, convened on 14 March 1990, concluded the applicant’s foot condition prevented satisfactory performance of his duties and recommended that he be released from active duty with a disability rating of 10 percent under VASRD Code 5299-5003.  Although the applicant originally nonconcurred with the findings and recommendation of the PEB, on 28 March 1990, he “changed his mind” and concurred, waiving his right to a formal hearing.

On 18 April 1990 the applicant was released from active duty and discharged from the Army Reserve.  He received $1,623.00 in disability severance pay.  

Although a rating action by the VA would not impact on the Army’s disability rating, there is no indication the applicant has pursued any disability compensation from the VA as a result of his service incurred injury.

Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rated at less than 30 percent.

Title 10, United States 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 percent.

Army Regulation 635-40, which establishes the policies and procedures for disability retirement or separation, states that the VASRD codes are numbers used for showing the basis of the evaluation assigned and for statistical analysis. In the selection of codes, injuries generally will be represented by the number assigned to the residual condition on the basis of which the rating is determined. When an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, the diagnostic code number is “built-up.”  The first two digits will be selected from the part of the schedule most closely identifying the part, or system, of the body involved.  The last two digits will be “99” for all unlisted conditions.  When an unlisted condition is encountered, it is rated under a closely related disease or injury in which not only the functional, but the anatomical localization and symptomatology are closely analogous.  There are no objective medical laboratory testing procedures used to detect the existence of or measure the intensity of subjective complaints of pain, and as such a disability retirement cannot be awarded solely on the basis of pain.

The VA Schedule for Rating Disabilities (VASRD) Code 5003 refers to degenerative arthritis and notes that degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (5200, etc.).  When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affect by limitation of motion, to be combined, not added under diagnostic code 5003.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.

The 5200 codes of the VASRD apply to the musculoskeletal system hence the use of code 5299.  While codes 5276 through 5284 are associated with conditions of the foot, limitation of motion of the specific joint or joints (toes) involved is noncompensable under those diagnostic codes and so the use of code 5003 was appropriate.  VASRD Code 5299-5003 was used indicating a rating by analogy to painful range of motion of his toe.

There is no evidence, nor has the applicant provided any, that his medical condition at the time of his separation from active was any more severe than was determined during his PEB or that his 10 percent rating was in error or unjust.

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.  Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 18 April 1990, the date the applicant was released from active duty and authenticated his separation document.  The time for the applicant to file a request for correction of any error or injustice expired on 18 April 1993.

The application is dated 21 January 1997 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.

DETERMINATION:  The subject application was not submitted within the time required.  The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

___jns____  ___rgh__  __rwa___  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1999021188	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990519	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1. 108.00		
2.		
3.		
4.		
5.		
6.