MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:  6 July 2000
	DOCKET NUMBER:  AR1999030424

	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	
	Ms. Stephanie Thompkins		Analyst	

  The following members, a quorum, were present:

	Mr. Calvin M. Fowler		Chairperson	
	Mr. John P. Infante		Member	
	Mr. Ernest M. Willcher		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:  That his disability code for a back condition be changed from 5003 to 5293, that his knee be rated with code 5257 and all of his other conditions be rated.  He states that he believes his disability should be changed due to an update to Army Regulation 635-40.

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 Reserve with prior active service, as a private (E-2) effective 19 February 1991.  He attained the grade of specialist four (E-4) effective 1 December 1991.

He appeared before a Medical Evaluation Board on 25 January 1993 for the following medical conditions: Pain, low back, chronic, secondary to degenerative disc disease at L4, L5; pain, left knee; strain, left groin, not unfitting; residual enlargement of the left metacarpophalgeal joint from previous trauma, without evidence of degenerative joint disease, not unfitting; and nodule of forefinger, left hand, not unfitting for duty.  The applicant was referred to a Physical Evaluation Board (PEB).

The PEB convened on 9 February 1993 and considered the following conditions: pain, chronic low back secondary to degenerative disc disease at L4, L5 and left knee.  The findings were based on the Veterans Administration (VA) disability code 5003, for pain condition.  The Board found that the applicant’s medical and physical impairments prevented reasonable performance of duties.  The PEB rated him 10 percent and recommended him for separation with severance pay.  The applicant concurred with the findings and recommendation of the PEB.

He was separated for physical disability with authorized severance pay of $17,118.00 effective 30 September 1993.

Army Regulation 635-40, in effect at the time, Appendix B, Army Application of the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD), paragraph B-24, shows VASRD Code 5003 as: Arthritis, degenerative, hypertrophic and pain conditions rated by analogy to degenerative arthritis.  It provides that inasmuch as there are no objective medical laboratory testing procedures used to detect the existence of or measure the intensity of subjective complaints of pain, a disability retirement cannot be awarded solely on the basis of pain.  

Code 5257 shows Knee, other impairments.  Code 5293 shows Intervertebral disc syndrome and 5295 Lumbosacaral strain.

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 30 September 1993, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 30 September 1996.

The application is dated 27 July 1999 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

__CF___  _JI_____  __EW____  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR1999030424	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000706	
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.		
2.		
3.		
4.		
5.		
6.