MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            5 October 2000                  
	DOCKET NUMBER:   AR2000040440

	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. Carl W. S. Chun		Director	
	Mr. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Ms. Shirley L. Powell 		Chairperson	
	Mr. Elzey J. Arledge		Member	
	Mr. Jaime Perez		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:  Physical disability retirement.

The applicant states that he was allowed to enter the Army with flat feet, which in 1993 started to give him problems.  He was examined and treated, but not for flat feet.  He had pain in his left knee and left ankle; however, x-rays were negative.  Four years later an MRI shows that he has arthritis in his left knee and left ankle. The Army was negligent in allowing him to enlist with flat feet.  Furthermore, the doctors who treated him in 1993 were negligent, in that he should have received an MRI.    

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:

The applicant’s DD Form 214 shows that he enlisted in the Army on                  31 August 1989 and served on continuous active duty until his separation on      7 September 1993 on his separation date (ETS).  He had 4 years and 7 days of service. 

There is no documentation showing medical treatment while on active duty.  There is documentation showing that the applicant was seen, evaluated, and treated by German physicians beginning in 1997.  These documents were evaluated by the VA, when considering the applicant’s request for service connected disability.

A statement from a German orthopedic specialist indicates that the applicant was treated from 5 August to 13 October 1997 for weight bearing pain in the region of the left ankle joint.  An undated statement from a German general practitioner shows that the applicant suffered from bilateral arthrosis of the ankle joint.  A     12 August 1997 statement from a German doctor indicates that the applicant was unable to work because of acute arthritis to the left talocalcanean joint.  A          19 August 1997 statement reflects the same information.

A 30 September 1997 MRI of the applicant’s left ankle joint indicated bilateral bone marrow oedema in the region of the talus with additional degenerative changes in the talonavicular articulations, more pronounced on the left than on the right; degenerative changes in the upper ankle joint, dorsally with reactive marrow oedema of the calcaneus; and marked arthrosis of the lower ankle joint.

A 12 December 1997 statement from a German orthopaedic specialist shows that the applicant’s condition was described as marked pes metatarso-valgus, painful limited mobility of the lower talocalcanean joint, left side, pain on pressure along the peroneal tendon.  

A 25 August 1998 medical report from a German orthopaedist shows that the applicant was treated because of trouble in the area of the left talocalcanean joint following earlier distortion trauma.  That report indicated that the applicant wore arch supports.

A 27 August 1998 radiologic report of the applicant’s left knee shows a clear dysplasia of the femuropatellar sliding groove with degenerative cartilage alteration and also lateralized patella representation.  

On 28 September 1998 the VA denied the applicant’s claim for service connection for right ankle pain, genua valga (knock knees), and flat feet.

On 30 March 1999 the VA granted the applicant a 10 percent service connected disability rating for left knee patello-femoral arthritis; and a 20 percent rating for sprain to his left ankle, arthrosis, degenerative changes talonavicular.

A 28 August 1999 medical report from a German orthopaedist shows that the applicant’s condition was diagnosed as chondropathia patellae left side/patella tip syndrome incipient arthrosis of the upper talocalcanean joint left side.  Pes planus and pes transverus. 

A 2 March 2000 radiologic report shows alterations in the talus area described in terms of a beginning osteochondrosis dissecans, differential diagnosis: circumscribed osteonecrosis of the talus.  Secondary arthrodic alerations in the nearby calcaneus left side.  

In a 7 March 2000 letter a doctor at a medical clinic in Friedberg, Germany, stated that the applicant’s history and records showed that he had a diagnosis of degenerative joint disease (arthritis) in both ankles and his left knee. 

Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

Army Regulation 635-40, paragraph 3-2b states in pertinent part that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  

That paragraph goes on to say that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

Title 38, United States 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.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

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 7 September 1993, the date the applicant was released from active duty.  The time for the applicant to file a request for correction of any error or injustice expired on 7 September 1996.

The application is dated 29 March 2000 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

___jp____  ___slp__  ___eja___  CONCUR WITH DETERMINATION

    Carl W. S. Chun
    Director, Army Board for Correction
	                of Military Records

INDEX

CASE ID	AR2000040440	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001005	
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.  177	142.00	
2.	108.00	
3.		
4.		
5.		
6.