APPLICANT REQUESTS:  In effect, that he be medically retired, rated 75 percent disabled.

APPLICANT STATES:  That the physician who performed the operation on his knee told him that he would receive a 75 percent disability.  Based on that assurance he allowed himself to be discharged.  Since his discharge he has been unable to obtain or keep employment because of his knee giving out on him.  He believes that the Army may have overlooked his disability when he was discharged.

EVIDENCE OF RECORD:  The applicant's military records show:

He enlisted in the Regular Army on 17 July 1979, was awarded the military occupational specialty of Air Defense Artillery operations and intelligence assistant, and was promoted to pay grade E-4.

On 27 July 1981 the applicant went on sick call stating that he reinjured his knee the day before.  He stated that he had previously injured his knee playing basketball in 1978.  He was treated conservatively, being given a knee brace and given physical profile limitations.

On 16 September 1981 he underwent reconstructive surgery on his knee.  During a follow-up examination conducted on 19 February 1982 the applicant reported that he was running, walking and doing other activities without his knee giving way, locking, or exhibiting any other problems.  On 26 February 1982 the applicant was medically released for full duty.

On 16 June 1982 the applicant was the subject of a separation physical examination.  While his knee surgery was noted during that examination, he was determined medically qualified at that time.

On 12 July 1982 he was honorably released from active duty by reason of short length of time remaining on active duty precludes reassignment.  He had completed 2 years, 11 months and 26 days of his 3-year enlistment.

Army Regulation 635-40 provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board.  Those members who do not meet medical retention standards will be referred to a physical evaluation board for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.  For example, a noncommissioned officer who receives above average evaluation reports and passes Army Physical Fitness Tests (which have been modified to comply with the individual’s physical profile limitations) after the individual was diagnosed as having the medical disqualification would probably be found to be fit for duty.  The fact that the individual has a medically disqualifying condition does not mandate the person’s separation from the service.  Fitness for duty, within the perimeters of the individual’s grade and military specialty, is the determining factor in regards to separation.  If the PEB determines that an individual is physically unfit, it recommends the percentage of disability to be awarded which, in turn, determines whether an individual will be discharged with severance pay or retired.  Paragraph 4-19b states that a PEB may decide that a soldier’s physical defect was EPTS, but must then determine whether the condition was aggravated by military service.  If the PEB determines that a soldier has an unfitting EPTS condition which was service aggravated, the PEB must determine the degree of disability that is in excess of the degree existing at the time of entrance into the service.  The method of determining the percentage of disability to be awarded in such cases is outlined in appendix B, item B-10 of this regulation.  

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, 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.

Records obtained from the VA show that the applicant was awarded a 10 percent disability rating from 29 August 1983 and 30 percent from 8 April 1996.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, it is concluded:

1.  Although the applicant injured his knee while on active duty, all records show that his knee was surgically repaired and he was returned to full duty prior to his release from active duty.

2.  As such, he did not meet the statutory criteria for a medical discharge or retirement.

3.  It is noted that the applicant was discharged, for all intents and purpose, upon completion of his term of service.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

                       GRANT          

                       GRANT FORMAL HEARING

                       DENY APPLICATION




						Karl F. Schneider
						Acting Director