MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 10 January 2002
         DOCKET NUMBER: AR2001062879

         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:

Mr. Fred N. Eichorn		Chairperson
Mr. Ted S. Kanamine		Member
Mr. John T. Meixell		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 discharge under the Trainee Discharge Program (TDP) be changed to a medical discharge.

APPLICANT STATES: That he was given an ordinary honorable discharge when he was actually discharged for medical reasons. He provides a document indicating he has changed his full name under the Common Law of Massachusetts; his Report of Separation from Active Duty, DD Form 214; a Medical Condition – Physical Profile Record, DA Form 3349, dated 15 May 1978; three pages extracted from his service medical records; a Department of Veterans Affairs (VA) Hospital Summary sheet dated 25 July 1979; a VA appeal dated 2 July 1996; a VA rating decision dated 9 March 1999 showing the applicant’s disability ratings for chondromalacia patella, right and left, were increased to 20 percent disabling, each, for a combined evaluation of 40 percent;
a document dated 11 October 2000 from the Central Oregon Primary Care Clinic indicating chest and knee x-rays were unremarkable except for mild arthritis in the applicant’s knees; a document dated 22 December 2000 from the St. Charles Medical Center indicating the applicant had fallen down stairs the previous day re-injuring his knees; and a VA document dated 26 December 2000 verifying the applicant has a 40 percent disability rating that he could submit to the County Assessor in connection with his application for property tax exemption.

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

He enlisted in the Regular Army on 25 April 1978.

On 3 May 1978, the applicant was considered for but not recommended for English as a Second Language (ESL) training. It was noted he had a good attitude, he had a high ESL score, and that he comprehended exceptionally well compared to others.

On 10 May 1978, the applicant was seen in the Troop Medical Clinic for a complaint of bilateral leg pain, dizziness, chest, and back pain for the past 5 days. On 15 May 1978, he was given a temporary L3 physical profile for mild bilateral knee strain. He was treated again on 19 May 1978.

On 25 and 26 May 1978, the applicant was counseled for talking in class and for failing to follow instructions. The drill/platoon sergeant felt the applicant deliberately disobeyed orders that he did not want to obey and tried to antagonize the drill sergeants with his “no comprende (sic) routine.” On 26 and 27 May 1978, he was counseled for sleeping in drug abuse class and for not preparing for an inspection.

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A TDP Counseling form, TRADOC Form 871-R, dated 31 May 1978 indicated that the applicant’s commander had counseled the applicant numerous times, that the applicant had a motivational problem and really had no language problem. He was overweight and had not made satisfactory progress toward weight reduction. The applicant had knee problems and was a potential medical discharge but the commander did not feel the TDP should await the outcome of the medical evaluation.

The applicant was treated again on 1 June 1978. It was noted by medical personnel that he was overly reactive, that he was tender everywhere around the knee but the pain was not consistent, that there was no ligament instability, and that he was overweight.

On or about 10 June 1978, the commander initiated separation action on the applicant under the provisions of Army Regulation 635-200, paragraph 5-33, Trainee Discharge Program. The commander noted that the applicant lacked motivation to train, shirked responsibility by feigning a language problem, had repeated knee ailments, and was overweight.

On 10 June 1978, the applicant acknowledged notification of the proposed action, made no statement in his own behalf, and stated that he did not desire a separation medical examination.

On 16 June 1978, the appropriate authority approved the recommendation and directed the applicant be given an honorable discharge.

On 22 June 1978, the applicant was discharged with an honorable discharge in pay grade E-1 under the provisions of Army Regulation 635-200, paragraph 5-33. He had completed 1 month and 28 days of creditable active service and had no lost time.

On 20 March 1979, the applicant submitted a claim to the VA for disability compensation. An examination revealed there was crepitus of both knees on flexion and extension with no swelling, effusion, locking, instability, or deformity found in either knee. There was full extension and he flexed to 130 degrees. There was excellent muscle development and no atrophy or weakness. He underwent bilateral arthroscopies in July 1979 which failed to show any abnormality. X-rays failed to show any abnormalities. Reasonable doubt was resolved in the applicant’s favor and service connection was granted for chondromalacia in the right and left knees with a zero percent rating for each knee.

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On or about 9 September 1980, the applicant applied for a waiver of disqualification to enlist in the Army. The U. S. Army Recruiting Command (USAREC) Area Commander recommended approval; however, the USAREC Command Surgeon disapproved the request for medical waiver based on the applicant’s continuing complaints of knee pain.

On an unknown date, the applicant’s VA disability rating was increased to 10 percent for each knee. On 2 July 1996, it was increased to 20 percent for each knee.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. The pertinent paragraph in Chapter 5 provides that commanders may expeditiously discharge members who lack the necessary motivation, discipline, ability or aptitude to become productive soldiers when these individuals were voluntarily enlisted in the Regular Army, Army National Guard or U.S. Army Reserve; are in basic training or in advanced individual training and have completed no more than 179 days active duty or initial active duty for training on current enlistment by the date of discharge; and have demonstrated that they are not qualified for retention for reasons such as demonstrating character and behavior characteristics not compatible with satisfactory continued service

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. A commander who believes that a soldier of his or her command is unable to perform his or her duties because of physical disability will refer the soldier to the responsible military treatment facility for evaluation. A commander of a medical treatment facility who is treating a soldier may initiate action to evaluate the soldier’s physical ability to perform his duties.

The VA Schedule of Rating Disabilities (VASRD) is the standard under which percentage rating decisions are to be made for disabled military personnel. The VASRD is primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. Unlike the VA, the Army must first determine whether or not a soldier is fit to reasonably perform the duties of his office, grade, rank or rating. Once a soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VASRD. These percentages are applied based on the severity of the condition.

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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.

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 on the part of the Army. 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, 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.

3. There is no evidence of record to show the applicant was ever given a permanent L3 physical profile, that he was ever considered by his commander as being unable to perform his duties because of his knee conditions, or that he was ever referred to a medical evaluation board by the medical treatment facility commander. A year after the applicant was discharged a VA examination, arthroscopy, and x-rays revealed no abnormalities in his knees. Following their own policies, the VA found the applicant’s knee conditions to be service-connected but to have a zero percent disability rating. It appears the applicant felt sufficiently well enough in 1980 to request reenlistment in the Army. The evidence of record shows that the applicant was discharged under the TDP for motivation problems, not for a medical problem.

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

__fne___ __tsk___ __jtm___ DENY APPLICATION

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

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INDEX

CASE ID	AR2001062879
SUFFIX
RECON
DATE BOARDED	20020110
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	108.00
2.
3.
4.
5.
6.