MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 12 July 2001
         DOCKET NUMBER: AR2001058309

         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
Mrs. Nancy Amos		Analyst

The following members, a quorum, were present:

Ms. Margaret K. Patterson		Chairperson
Mr. Melvin H. Meyer		Member
Mr. Terry L. Placek		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 to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         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)

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APPLICANT REQUESTS: That his disability separation with severance pay be changed to a medical retirement.

APPLICANT STATES: That the Army gave him a 10 percent rating for his left knee but ignored his complaints that his right knee was also giving him problems.
He was given an overall rating of just 20 percent and severed from active duty without the option he truly earned and deserved – disability retirement. Hundreds of soldiers retired from active duty under the Early Retirement Program who served just over 15 years and yet were retired simply because of their pay grade and military occupational specialty (MOS). Because he was erroneously given an incomplete disability rating, he was not afforded the option of disability retirement.

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

He enlisted in the Regular Army on 17 July 1979. He completed basic training and advanced individual training and was awarded MOS 31M (Multichannel Communications Systems Operator). He was awarded primary MOS 31D (Mobile Subscriber Equipment Transmission System Operator) on 2 February 1992. He was promoted to Staff Sergeant, E-6 on 1 April 1992 in MOS 31D. It appears that MOS 31D converted to MOS 31R (Multichannel Transmission Systems Operator/Maintainer) shortly thereafter.

On 24 June 1995, the applicant was standing behind a vehicle leaning over into its trunk. A van that was backing up struck that vehicle. The vehicle was driven backwards and the bumper struck the applicant just below the knee in the pre-tibial area primarily on the left side but to some degree on the right side.

It appears the applicant received several treatments by a civilian facility, Diagnostic Orthopaedics, P. C., the first on 13 July 1995. He presented with a complaint of a swollen knee. He noted he had a great deal of left knee pain with climbing stairs. A physical examination revealed he walked with a limp on the left. There was marked patellofemoral crepitation on flexion and extension and pain with flexion and extension. Examination of the right knee revealed mild patellofemoral crepitation along with lateral patella margin. He was diagnosed with sprain of the left knee, mild effusion of the left knee, and contusion and bruising of the proximal anterior compartment of the left leg and proximal third of the tibia. He was examined again on 21 July 1995. A physical examination noted mild swelling of the left knee. He was diagnosed with a lateral tibial plateau fracture which was incomplete, degenerative joint disease and subluxation of the patella laterally. He was to continue walking with crutches, part weight bearing on the left leg.

Around July 1995, the applicant was treated by the Cape Fear Valley Medical Center, Fayetteville, NC. Mild swelling of the left knee upon palpation was noted. He was instructed in rest, ice, and compression with elevation of the left knee.

The applicant was treated by Diagnostic Orthopaedics, P. C. on 4 August 1995. His knee was improved. There was significant patellofemoral crepitation and lateral subluxaation of the patella with flexion and extension. In the right knee he exhibited the same degree of crepitation and lateral subluxation without pain which was present in the left knee. He was treated again on 3 October 1995. He was walking with a cane and had no limp when he used the cane. He was tender every place he was touched about the (left) knee. There was moderate medial patellofemoral crepitation present in the left knee; mild patellofemoral crepitation in the right knee. There was a distinct difference between the two knees. X-rays were taken of his left knee. Arthroscopy of his left knee was recommended. It was noted that he had significant subjective complaints related to his (left) knee with minimal objective findings other than patellofemoral crepitation.

The applicant apparently underwent a medical evaluation board (MEB) examination on 22 September 1995. The MEB narrative summary is not available. On his Report of Medical History, Standard Form (SF) 93, he noted that he had an “accident with left knee, car accident with 17 year old on 24 Jun 95.”

On 6 November 1995, the applicant received a Department of the Army (DA) Imposed Bar to Reenlistment under the Qualitative Management Program (QMP). He appealed it but his appeal was disapproved on 19 March 1996.

On 25 April 1996, the applicant was evaluated by a physical evaluation board (PEB). The PEB found him unfit for duty with left knee pain secondary to degeneration in the lateral meniscus and lateral patellar subluxation with a disability rating of 10 percent and for lower back pain caused by altered biomechanics resulting from his altered gait secondary to his knee condition with a 10 percent disability rating for a combined rating of 20 percent. The PEB recommended his separation with severance pay. There is no documentation to show whether the applicant concurred or nonconcurred in the findings and recommendation of the PEB.

On 27 June 1996, the applicant was discharged, with severance pay, after completing 16 years, 11 months and 11 days of creditable active service.

On 22 October 1996, the VA awarded the applicant disability compensation for limited motion in the lumbar spine (40 percent); knee condition left lower (20

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percent); duodenal ulcer (20 percent); and knee condition right lower (10 percent) for a combined rating of 70 percent.

On 27 February 1997, the applicant was evaluated by the North Carolina Disability Determination Services. That office noted that the applicant appeared in no distress. He was wearing an elastic left knee brace which was removable. There was tenderness on both knees more so on the left. He limped on the left side due to pain in the left knee.

Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability. The regulation defines “physically unfit” as unfitness due to physical disability. The unfitness is of such a degree that a soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.

Title 38, U. S. 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, however, is not required by law to determine medical unfitness for further 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. Consequently, due to the two concepts involved, an individual’s medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

The purpose of early retirement for Regular Army enlisted soldiers was to continue commitments to soldiers disadvantaged by the drawdown. Early retirement was not an entitlement and it was only offered to soldiers who met the strict eligibility requirements outlined in Department of the Army messages.

Commander, U. S. Total Army Personnel Command (PERSCOM) message 081919Z August 1995 offered early retirement in fiscal year 1996 to three categories of soldiers. Two categories were for certain promotable sergeants, E-5 only. The third category was for soldiers with a bar to reenlistment (DA or local) or who had signed a declination of continued service statement and had completed more than 18 years of active federal service on the requested retirement date regardless of MOS or grade.

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Commander, PERSCOM message 121432Z May 1994 offered early retirement in fiscal year 1995 to three categories of soldiers. One was for soldiers with a bar to reenlistment (DA or local) or who had signed a declination of continued service statement and had completed more than 18 years of active federal service on the requested retirement date regardless of MOS or grade. One was for certain promotable Sergeants, E-5s . The third was for other soldiers - without exception - who held a primary MOS and grade as listed in the message. Neither MOS 31D nor 31R was listed.

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

1. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.

2. The rating action by the VA does not necessarily demonstrate an error or injustice in the Army rating. The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit. The VA is not required by law to determine medical unfitness for further military service in awarding a disability rating, only that a medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved (i. e., the more stringent standard by which a soldier is determined not to be medically fit for duty versus the standard by which a civilian would be determined to be socially or industrially impaired), an individual’s medical condition may be rated by the Army at one level and by the VA at another level,

3. The Board notes that the applicant saw civilian doctors several times for treatment of his knee and in no instance was his right knee particularly remarked upon as a problem for him, either before his discharge or after. On his SF 93 for his MEB he mentioned only his left knee as being affected by the accident. The Board concludes that his right knee was not such a problem that it had to be considered by the PEB as an unfitting condition.

4. The enlisted Early Retirement Program was implemented for a specific reason - to assist with the force structure drawdown yet not disadvantage soldiers affected by the drawdown. Only certain soldiers were eligible for the Program. The applicant did not meet any of the eligibility criteria for either the fiscal year 1995 or the fiscal year 1996 Early Retirement Programs.

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

__mkp___ __mhm___ __tlp___ DENY APPLICATION

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

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INDEX

CASE ID	AR2001058309
SUFFIX
RECON
DATE BOARDED	20010712
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	108.00
2.
3.
4.
5.
6.