IN THE CASE OF: BOARD DATE: 4 February 2016 DOCKET NUMBER: 20150002082 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 his records to show a service-connected physical disability rating of 30 percent or more. 2. The applicant states, in effect: a. He injured his ankle while he was in Korea and the injury was not evaluated during his medical board. b. A proper evaluation of his ankle injury would have changed the outcome and percentage of his disability rating; he believes he would have received a 30 percent disability rating. c. His ankle injury was clear and it was treated while he was in the Army. d. His ankle injury is now not being acknowledged by the Department of Veterans Affairs (VA). e. He had two surgeries and he may need to have another surgery. 3. The applicant provides a copy of his discharge orders, medical records, and photographs of his injured foot and ankle. 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. With prior enlisted service, the applicant accepted an appointment as a Reserve commissioned officer on 17 December 1990, in the rank of first lieutenant (O-2). He was ordered to active duty effective 6 January 1991. 3. A Medical Evaluation Board (MEB) convened on 7 January 1992, to determine if the applicant should be referred to a Physical Evaluation Board (PEB). The MEB Narrative Summary states that he was sent to Fitzsimons Army Medical Center (FAMC) from Korea for complaints of left lower extremity pain, which he had on and off for several months prior to transfer. The pain was classically exacerbated by straining and valsalva. It ranged from his buttocks to his lower leg, sometimes going far down the lower leg. He occasionally got paresthesia but had not noticed any weakness. He underwent extensive conservative therapy without significant improvement. A magnetic resonance imaging (MRI) obtained in Korea was consistent with an L5-S1 herniated nucleus pulposus. The applicant was sent to FAMC Medical Holding Company for further evaluation. 4. The MEB Narrative Summary further states the applicant sustained a right ankle fracture in June 1991 while he was doing physical training in Korea. When he was transferred to FAMC, his ankle was placed in a cast. As of the date of the Narrative Summary, his ankle had not fully healed and the applicant was experiencing significant pain on range of motion and use. He was evaluated by orthopedic services and a bone scan was obtained which showed some increased activity. His ankle was being treated conservatively but obtaining an MRI and possible arthroscopy were being considered. The MEB Proceedings shows he was diagnosed as follows: (1) Left lower extremity pain: radiculopathy, chronic; (2) Left L5-S1 herniated nucleus pulposus on imaging studies; (3) Elevated liver function tests of unknown etiology; and (4) Chronic right ankle pain after fracture. 5. The applicant was found unfit for duty under the provisions of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, section XIV, paragraph 3-30.0. The MEB recommended that he be separated from active duty with plans for follow-up of his radiculopathy, ankle problems, and liver function test problems in the future. The MEB also recommended that he be referred to a PEB for evaluation. 6. A PEB convened on 28 January 1992 to determine whether the applicant should be separated from the service due to physical disability. The PEB diagnosed him with chronic low back pain and left lower extremity pain. An MRI revealed left paramedical L5-S1 herniated nucleus pulposus and mild degenerative changes; with normal reflexes and electromyography (EMG). The following comments are listed in the PEB Proceedings: (1) The Soldier's functional limitations in maintaining mobility, caused by the physical impairments recorded above made the Soldier unfit to perform the duties required of a first lieutenant in the military occupational specialty of a lawyer. (2) Conditions listed as medical board diagnosis numbers 3 and 4 were considered by the PEB and found to be neither unfitting nor ratable. (3) It should be noted that disability ratings of less than 30 percent for Soldiers with less than 20 years of service require that Soldiers to be separated from the service with severance pay. (4) Since you do have service-connected medical conditions, you should contact a Veterans Administration counselor to learn about available benefits such as disability compensation, rehabilitation program, insurance program, employment assistance, home loans, and medical care benefits. You must start the action! None of the above benefits are automatic. (5) The voting PEB on this case included an officer of the Reserve component. 7. The PEB found the applicant unfit for continued service and recommended separation with severance pay and a combined service-connected disability rating of 10 percent. 8. He concurred to the PEB's findings and recommendations on 29 January 1992. 9. On 10 March 1992, the applicant was discharged with severance pay under the provisions of Army Regulation 635-40, (Physical Evaluation for Retention, Retirement, or Separation) paragraph 4-24b(3), due to physical disability. He completed 6 years, 4 months, and 25 days of total active service. 10. A review of the available records fails to show any evidence that his ankle injury is not being acknowledged by the VA. 11. Title 10, United States Code (USC), 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 percent. 12. Title 38, USC, sections 1110 and 1131, 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. 13. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION AND CONCLUSIONS: 1. The applicant's contentions have been noted. His supporting evidence has been considered. However, neither his contentions nor his medical records demonstrate error or injustice in the disability rating assigned by the Army, or error or injustice in the disposition of his case by his separation from the service. 2. It is evident that he did have an ankle injury which was considered by the PEB and it was determined that the injury was neither unfitting nor ratable. 3. There is no evidence in the available record nor has the applicant provided any evidence showing he started action for benefits through the VA for his ankle injury and it was denied. 4. The PEB found him unfit for duty due to left lower extremity pain: radiculopathy, chronic, and left L5-S1 herniated nucleus pulposus on imaging studies. He received a combined service-connect disability rating of 10 percent. He concurred with the findings and recommendations of the PEB on 29 January 1992. Absent any evidence to the contrary, it must be presumed that the actions taken by the Army in this case were correct. 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) AR20150002082 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150002082 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1