RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 15 NOVEMBER 2005 DOCKET NUMBER: AR20050001282 I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual. Mr. Carl W. S. Chun Director Ms. Deborah L. Brantley Senior Analyst The following members, a quorum, were present: Mr. Stanley Kelley Chairperson Mr. John Meixell Member Mr. Robert Duecaster Member The Board considered the following evidence: Exhibit A - Application for correction of military records. Exhibit B - Military Personnel Records (including advisory opinion, if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests disability retirement in lieu of disability separation. 2. The applicant states he was given only a 10 percent rating for his left knee condition by the Army and was subsequently awarded a 30 percent rating for that same condition by the Department of Veterans Affairs. 3. The applicant provides copies of documents associated with his Army disability processing and a copy of his Department of Veterans Affairs rating decision. COUNSEL'S REQUEST, STATEMENT AND EVIDENCE: 1. Counsel requests that the Board grant the relief requested. 2. Counsel states, in effect, that the applicant was evaluated by the Department of Veterans Affairs for the same condition rated by the Army and that the Department of Veterans Affairs found the applicant entitled to a 30 percent evaluation retroactive do the date he was separated from the Army. 3. Counsel provides no evidence beyond that provided by the applicant. CONSIDERATION OF EVIDENCE: 1. The applicant is requesting correction of an alleged error or injustice which occurred on 25 October 1996. The application submitted in this case is dated 4 January 2005. 2. 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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so. In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file. 3. Records available to the Board indicate the applicant entered active duty on 21 October 1982 and served continuously through a series of reenlistments. 4. In July 1996 the applicant underwent a medical evaluation board (MEB). His chief complaint was identified as bilateral chondromalacia of the patella (pain around and sometimes behind the kneecap), left great than right. The MEB summary noted the applicant had twisted his left knee in a basketball game in 1993 and subsequently underwent a knee operation. In August 1994 he sustained a recurrent twisting injury during a field training exercise and in November 1994 underwent left knee arthroscopy. A second arthroscopy was done in January 1995 and although he tolerated the procedure well he continued to have problems with retropatellar knee pain without significant relief from anti-inflammatory drugs. 5. The MEB concluded the applicant's principal diagnosis was chondromalacia patellae, left knee much great than the right, and that he suffered from several secondary conditions, including hypercholesterolemia, bilateral high frequency, left plantar fasciitis, chronic musculoskeletal low back pain, and status post reduction internal fixation of left first and second metacarpal fractures. The MEB recommended the applicant be referred to a PEB (physical evaluation board). The applicant concurred with the findings and recommendation of the MEB. 6. On 20 September 1996 the applicant underwent an informal PEB. The PEB concluded that his functional limitations in maintaining the appropriate level of mobility and agility, caused by his knee condition, rendered him unfit to perform his duties. The PEB rated the applicant's condition at 10 percent and recommended separation with entitlement to severance pay if otherwise eligible. The PEB noted that none of the secondary medical conditions identified by the MEB were unfitting and therefore were not rated. The applicant concurred with the findings and recommendation of the PEB and waived his right to a formal hearing. 7. On 25 October 1996 the applicant was honorably discharged by reason of physical disability and received more than $45,000.00 in disability severance pay. 8. The Department of Veterans Affairs rating documents, provided by the applicant, indicates his left knee condition was initially rated as 20 percent disabling but was increased to 30 percent upon appeal. The rating was effective 26 October 1996, the day following his separation from active duty. 9. 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. 10. 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. 11. Title 38, United States Code, sections 1110 and 1131, permit the Department of Veterans Affairs (VA) to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a VA rating does not establish an error or injustice in the separation or discharge of an individual from the Army not as a result of a disability. 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 an 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. The 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. 12. Title 38, United States Code, section 5110, states the effective date of an award of disability compensation to a veteran shall be the day following the date of the veteran's discharge or release if application for disability benefits is received within one year from the date of discharge or release. DISCUSSION AND CONCLUSIONS: 1. The rating action by the VA does not necessarily demonstrate any error or injustice in the Army rating. The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit. 2. The applicant was a participant in his disability processing and concurred with the findings and recommendation of his PEB. The fact that he is now receiving disability compensation from the Department of Veterans Affairs at a higher rating does not compel the Army to modify its reason or authority for separation. 3. The effective date of the applicant's VA compensation, which was the day following his Army discharge date and not, as both he and his counsel imply, the same day as his discharge, is dictated under the provisions of Title 38 of the United States Code and is not an indication that the applicant's Army disability rating was incorrect or in error. 4. In order to justify correction of a military record the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy the aforementioned requirement. 5. In view of the foregoing, there is no basis for granting the applicant's request. 6. Records show the applicant should have discovered the alleged error or injustice now under consideration on 25 October 1996; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 24 October 1999. The applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __SK ___ __JM ___ __RD ___ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that 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. 2. As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law. Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned. ______Stanley Kelley _______ CHAIRPERSON INDEX CASE ID AR20050001282 SUFFIX RECON YYYYMMDD DATE BOARDED 20051115 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.