IN THE CASE OF: BOARD DATE: 14 June 2016 DOCKET NUMBER: AR20150010297 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ___x_____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 14 June 2016 DOCKET NUMBER: AR20150010297 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. IN THE CASE OF: BOARD DATE: 14 June 2016 DOCKET NUMBER: AR20150010297 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 correction of his records to show he was medically discharged. 2. The applicant states: * he should have been medically discharged * he was told he would be contacted to complete a physical evaluation board (PEB), but he was never contacted to finish the process 3. The applicant provides: * DA Form 3947 (Medical Evaluation Board (MEB) Proceedings) * DA Form 199 (PEB Proceedings) * three Department of Veterans Affairs (VA) Rating Decisions and extracts of VA 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 on 9 January 2001. 3. A physical evaluation, dated 19 June 2003, shows: a.  In November 2001 while performing physical training, he suffered a severe twisting right knee injury resulting in immediate effusion and instability. He was treated with local therapy, ice, elevation, and placed in quarters. b.  On 20 November 2001, he was walking and felt his right knee pop. He fell to the floor and was ultimately taken to the emergency room at Womack Army Medical Center. X-rays were taken, he was given Percocet for pain, and he was referred to the Physical Therapy and Orthopedic Clinics. He was placed on crutches. c.  The Orthopedic Clinic evaluated him and found he had a grade II-plus ligament laxity anterior cruciate ligament. d.  On 4 March 2002, he underwent anterior cruciate ligament reconstruction with a hamstring graft and debridement of his medial meniscus. He was initially recommended for evaluation by a Military Occupational Specialty/Medical Retention Board; however, his unit was activated and deployed during February 2003. He deployed with his unit and he took anti-inflammatory and pain medication. e.  While deployed, he responded to an immediate action of an ambush and reportedly hyperextended his right knee and suffered significant swelling and pain. He redeployed to the United States in June 2003. The Orthopedic Clinic evaluated him again and determined he was not a surgical candidate. He had good purchase to his graft and his right knee was not unstable. f.  He was subsequently referred to an MEB due to continued complaints of right knee pain and his inability to perform his duties. g.  On 10 September 2003, the MEB referred him to a PEB for right knee pain. He concurred with the finding and recommendation of the MEB. 4. His DA Form 199, dated 21 October 2003, shows the PEB found him physically unfit for right knee post-anterior cruciate ligament repair rated as 10-percent disabling. The PEB recommended his separation with severance pay. He concurred with the finding and recommendation of the PEB. 5. On 28 December 2003, he was honorably discharged by reason of disability with severance pay under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(3). His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was authorized $9,478.00 in severance pay. 6. On 13 January 2004, the VA granted him a 10-percent disability rating for constant bilateral tinnitus. 7. On 26 February 2004, the VA granted him a 70-percent disability rating for post-traumatic stress disorder. 8. On 10 June 2013, he was hospitalized at the Eastern Idaho National Medical Center for post-traumatic stress disorder, depressive disorder, anxiety, and suicidal ideation. He was ultimately stabilized and released. 9. He provided copies of VA treatment records for the period 2004 through May 2016 (1,500 pages). REFERENCES: 1. Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his or her office, rank, grade, or rating because of a disability incurred while entitled to basic pay. 2. 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 rating of at least 30 percent. 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 rating of less than 30 percent. 3. Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement). Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement) provides the standards for medical fitness for retention and separation, including retirement. Soldiers with medical conditions listed in this chapter are referred for disability processing. 4. Army Regulation 635-40 establishes the Physical Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. a.  The mere presence of impairment does not, in and of itself, justify a finding of unfitness because of physical disability. b.  The medical treatment facility commander with primary care responsibility evaluates those referred to him or her and, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refers the member to an MEB. Those members who do not meet medical retention standards are referred to a PEB for a determination of whether they are able to perform the duties of their grade and military specialty with the medically-disqualifying condition. c.  Disability compensation is not an entitlement acquired by reason of a service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. d.  Recommendations of the informal PEB are recorded on a DA Form 199. Item 13 of the DA Form 199 lists the election options available to the Soldier for informal determinations. These include: * concurrence with the findings and recommendations and waiver of a formal hearing * nonconcurrence with the findings and recommendations, submission of a rebuttal explaining the Soldier's reasons for nonconcurrence, and waiver of a formal hearing * demand for a formal hearing with or without personal appearance * choice of counsel if a hearing is demanded e.  Soldiers indicate their elections by placing a checkmark in item 13 and by signing and dating the original and the medical treatment facility copies. 5. 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 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 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 affect the individual's civilian employability. Furthermore, unlike the U.S. Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. The U.S. Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career, while the VA may rate any service-connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability. DISCUSSION: 1. The applicant was found unfit for duty and processed through the Army Physical Disability Evaluation System. 2. A PEB recommended his separation with severance pay and assigned a 10-percent disability rating for his unfitting condition of right knee post anterior cruciate ligament repair. 3. The evidence of record shows he concurred with the finding and recommendation of the PEB. 4. Since he had less than 20 years of active service and his medical condition was rated less than 30-percent disabling, he was discharged by reason of disability with severance pay. 5. His records are void of and he failed to provide evidence showing his processing through the Army Physical Disability Evaluation System was not conducted in accordance with the governing regulation. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150010297 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150010297 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2