MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 7 May 2002
         DOCKET NUMBER: AR2002070124

         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. Samuel A. Crumpler		Chairperson
Mr. Kenneth W. Lapin		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 be changed to a medical retirement.

APPLICANT STATES: That he was not fit for duty when he was discharged. He was on crutches and wearing a knee brace. He provides his VA rating decision as supporting evidence.

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

He enlisted in the Regular Army on 24 November 1997.

In December 1997, the applicant fell while running. He underwent surgical reconstruction of his right knee and chondroplasty in February 1998 for a torn anterior cruciate ligament and medial cruciate ligament.

On 24 April 1998, the applicant was counseled for disobeying a lawful order to work out on the upper body strength machines since he could not get into the pool because of his knee. He instead took a shower. On 27 April 1998, he was counseled for unauthorized use of a telephone. On 28 April 1998, he was counseled for his repeated misconduct, failure to follow instructions, to obey a lawful order, and failure to follow company policy. On 30 May 1998, he was counseled on knowingly and intentionally failing to report the wrongful disposition of military property.

On 9 June 1998, the applicant’s commander initiated action to separate him under the provisions of Army Regulation 635-200, chapter 13 for unsatisfactory performance and cited the applicant’s inability to adapt to the military and his continuous disciplinary problems as the specific reason for the recommended action.

The applicant was advised by consulting counsel of the basis for the contemplated action, he waived consulting counsel, and elected not to submit a statement in his own behalf.

On 9 June 1998, the appropriate authority approved the recommendation and directed the soldier be issued an honorable discharge.

On 15 June 1998, the applicant underwent a mental status evaluation. The examining physician found the applicant to have the mental capacity to understand and participate in proceedings and to be mentally responsible.

Complete medical records are not available. On 17 June 1998, the applicant completed a separation physical and was found qualified for separation. His Report of Medical Examination, SF 88, indicated he had a temporary L3 profile.
On 1 July 1998, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 13, unsatisfactory performance, with an honorable discharge. He had completed 7 months and 8 days of creditable active service and had no lost time.

On 14 August 2001, the Department of Veterans Affairs awarded the applicant a 20 percent disability rating for postoperative residuals, right knee anterior cruciate ligament reconstruction and chondrolasty (increased from 10 percent) and a 10 percent rating for right knee arthritis. The Rating Decision notes the earliest date the applicant was seen for right knee pain was 28 December 1998, at which time there was restricted range of motion. On 20 January 1999, an examination showed his right knee had a decreased range of motion. On 29 March 2001, evidence showed there was pain, locking, and effusion.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 13 of that regulation provides, in pertinent part, that a member may be separated when it is determined that he or she is unqualified for further military service because of unsatisfactory performance. Commanders will separate a soldier for unsatisfactory performance when it is clearly established that, in the commander’s judgment, the soldier will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier and the soldier meets retention medical standards in Army Regulation 40-501.

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. Paragraph 3-2 states that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. Paragraph 4-7 states that commanders of medical treatment facilities who are treating soldiers may initiate action to evaluate the soldier’s physical ability to perform the duties of his or her rank and grade.

Army Regulation 40-501 governs medical fitness standards for enlistment, retention, and separation. Paragraph 3-13c states that residual instability of the knee following remedial measures if more than moderate in degree is a cause for referral to a medical evaluation board (MEB). Paragraph 3-13d(2) states that flexion of the knee which does not equal or exceed 90 degrees or extension of the knee which does not equal or exceed 15 degrees is a cause for referral to an MEB. Paragraph 3-14e states that chondromalacia, severe, manifested by frequent joint effusion, more than moderate interference with function or with severe residuals from surgery, is a cause for referral to an MEB.

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.

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 (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 found to be not unfitting by the Army and yet found to be disabling by the VA.

3. The Board notes that not all the applicant’s service medical records are available. In the absence of evidence to the contrary, the Board presumes that competent military medical authority determined he did not meet the criteria outlined in Army Regulation 40-501, paragraphs 3-13 and 3-14 for referral to an MEB. The Board notes that his SF 88 showed he had only a temporary physical profile, not a permanent profile. While his knee condition may have worsened over time (the VA Rating Decision noted he had restricted range of motion on 28 December 1998 but does not state what that range was), the fact remains that
he was separated (i.e., his service was interrupted) not because he was physically unable to perform his duties but because of unsatisfactory performance due to a record of minor military disciplinary infractions.

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

__sac___ __kwl___ __jtm___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002070124
SUFFIX
RECON
DATE BOARDED	20020507
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	108.00
2.
3.
4.
5.
6.