APPLICANT REQUESTS:  That her honorable discharge with special separation benefit be corrected to medical retirement.

APPLICANT STATES:  That she had injured her knee on several occasions while she was on active duty, for which she received surgical repairs, and was given permanent physical profile limitations for 4 1/2 continuous years because of those injuries and operations.  She had requested a medical evaluation board (MEB) prior to her separation, but MEB consideration was denied to her.  Since her separation from active duty, she has had another operation on her knee and has been awarded a 30 percent disability rating by the VA.

In support of her application she submits progress notes from her civilian physician which show that she had undergone a diagnostic arthroscope of her knee on 20 October 1992, wherein she was diagnosed as suffering from a mild tear of her lateral meniscus (disk attached to the tibia) and severe chondromalacia of her patella (softening of her kneecap).  During the operation both deformities were shaved.   She also submits documents pertaining to her functional capacity to work, most of which portrays her as only being able to perform light duties, and two rating decisions from VA in which she was originally rated 10 percent disabled for hypertension and zero percent disabled for her right knee condition, and a combined rating of 30 percent disabled from 1 January 1993, 20 percent disabled for her right knee condition, and 10 percent disabled for her hypertension.

EVIDENCE OF RECORD:  The applicant's military personnel and medical records show:

She enlisted in the Regular Army on 29 August 1984, completed her initial training, was awarded the military occupational specialty of motor transport operator, and was promoted to pay grade E-4.

On 13 May 1985 she was examined for knee pain, stating that she had fallen from a truck trailer.  She was placed in a cast, given crutches and given a temporary physical profile of “3”, to expire on 13 July 1985.  On 30 July 1985 she was again given a temporary physical profile of “3”, to expire on 16 September 1985.  On 31 October she was again given a temporary physical profile of “3”, to expire in 90 days.

On 22 April 1986 the applicant was admitted for knee surgery in which she underwent diagnostic arthroscopy with surgical resection of a tear of the right lateral meniscus.  She was given a 90 day temporary physical profile after her release from the hospital.

On 6 October 1987 the applicant reported that she received a twisting injury to her knee when she was wrestling.  Her injury was diagnosed as an aggravation of her old knee injury, a mild sprain, and was given 4 weeks of rehabilitative therapy and a 30 day physical profile.

On 13 April 1988 the applicant was given a permanent physical profile of “3” due to her knee surgery.  On 20 March 1990 her profile was downgraded to “2”, but was still considered permanent.  In December 1991 she had another knee operation and, on 8 December 1991, her profile was temporarily upgraded to a “3”, to revert back to the lower “2” designator on 5 March 1992.

On 13 May 1992 the applicant requested that the hardware that had been installed in her knee during her operation be removed and that she be considered by a MEB.  The physician who examined her stated that she was still recovering from her operation and could not have the hardware removed until October 1992.  The physician also stated in the progress notes that she was doing well and was medically qualified for separation, with follow-up care for her knee to be provided by the VA.

On 13 July 1992 the applicant was given a separation physical examination.  In the Report of Medical History statement of present health, the applicant wrote that she was in good health but had high blood pressure.  During that physical examination, her knee problems and operations were noted and she was determined medically qualified for separation with a physical profile designator of “2.”

On 29 July 1992 the applicant was honorably released from active duty at her own request, with an SSB payment of $17,330.85, and transferred to the USAR Control Group the following day.  On the date the applicant submitted her application to the Board she was still assigned to the USAR Control Group.

Army Regulation 40-501, paragraph 7-11, specifies that there are normally no geographic assignment limitations associated with a numerical designator “2.”  A “2” designator indicates that the individual possesses some medical condition or physical defect which may impose some limitation on MOS classification and duty assignment.  This regulation does not specify that individuals must be referred to an MEB after being on a physical profile for a certain length of time.  This regulation only requires those individuals who have medical conditions which have been established as being below the criteria for retention, but have been retained on active duty through the operation of law or regulation, to be referred to an MEB prior to being separated from active duty.

Army Regulation 635-40 provides that those members who do not meet medical retention standards will be referred to a physical evaluation board to determine whether they are unfit to be retained in the Army and, if so, to determine the percentage of disability to be awarded.  This regulation also provides that only unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.

Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

Title 38, United States Code, sections 310 and 331, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service.

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.  The applicant’s knee condition was not found to be unfitting and, therefore, was not required to be considered by an MEB.

2.  The applicant’s contention that the Army was in violation of its own regulations by allowing her to remain on active duty for 4 1/2 years with a permanent profile is not supported by Army regulations.  There is no regulatory prohibition to retain a person on active duty with a permanent physical profile.  In addition, she only had a “2” designator prior to her separation, indicative of a minor defect.

3.  The fact that the applicant required an operation after her release from active duty, and that she had a reduction in her physical capacity to work, are not relevant to her claim as they do not show that she was medically disqualified for retention while she was on active duty.

4.  The Board also notes that the applicant had requested separation, that she stated that she was in good health on her separation physical, and that she received a substantial SSB payment.  She was hardly thrown out of the Army.  The Board also notes that the applicant was initially awarded a zero percent disability for her knee and only had that disability increased 5 months after her release from active duty, which was coincided with her operation by her civilian physician.  All of these factors show that the applicant was medically qualified for retention at the time of her separation.

5.  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