MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 20 August 2002
         DOCKET NUMBER: AR2002073627

         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
Ms. Nancy L. Amos		Analyst

The following members, a quorum, were present:

Ms. Melinda M. Darby		Chairperson
Mr. Roger Able		Member
Mr. Curtis L. Greenway		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: In effect, that his records be corrected to show he was separated for medical disability.

APPLICANT STATES: That he was discharged without proper medical attention. It was his understanding that a Line of Duty Investigation (LDI) from an older previously aggravated injury that he sustained while in the military would have been conducted by Major Pr___, the head administrator of the U. S. Army Reserve (USAR) School hosting the Phase II of the Combined Armed Services and Staff School (CAS 3) during the summer of 1991. Major Pr___ informed him (the applicant) that he was not aware of his (the applicant’s) pending court-martial until told by Major Pi___, the applicant’s former executive officer. It was the applicant’s understanding that the LOD still had to be completed regardless of the on-going investigation. He had requested that an LDI be initiated because of the injuries he sustained while a CAS 3 student in his final phase of class in June 1991. The incident occurred during a combat volleyball game that was a mandatory part of the course for completion. He was never given a separation or retirement physical before he was discharged although he had requested one. He provides his service and Department of Veterans Affairs (VA) medical records as supporting evidence.

EVIDENCE OF RECORD: The applicant's military records are not available. Information contained herein was obtained from his service and VA medical records and other alternate sources.

The applicant had prior enlisted service from April 1970 – January 1972. He was commissioned in the USAR and entered active duty on 29 September 1978. He was released from active duty on 8 March 1981.

Apparently, the applicant was on active duty for training when, on 15 July 1991, he was treated for a complaint of painful upper extremities, chest, ribs, bottom of feet, and rash. A Chronological Record of Medical Care that date indicates he played combat volleyball and “banged up” his shoulders. It indicates that he had elevated pain on full range of motion of the shoulders.

It cannot be determined when the applicant was released from active duty for training.

A civilian medical report dated 2 December 1991 indicates that films of the applicant’s left knee revealed a deformity of the proximal metaphysis of the left fibula from an old fracture. The left knee joint space and articular margins were normal without recent fracture. There was proliferative spurring of the anterior superior aspect of the patella. Films of the right knee revealed the joint space and articular margins to be satisfactory with minimal narrowing of the medial joint space. There was evidence of proliferative spurring of the anterior service of the patella.
By memorandum dated 14 February 1992, Major Pi___ forwarded copies of the applicant’s medical records to the VA and noted that an LDI was requested to substantiate the alleged June 1991 injury.

Apparently, charges were preferred against the applicant in January 1992 charging him with falsification of a travel voucher. He submitted his resignation for the good of the service apparently around March or April 1992.

A VA Rating Decision dated 26 March 1992 denied the applicant service connection for a right shoulder injury and for bilateral knee injuries as not shown to have been incurred or aggravated during a period of active service. The reasons for the decision were not available.

A document dated 2 April 1992 indicated the applicant was under a civilian doctor’s care for probable internal derangement of the knee. A C-T scan was recommended and possible MRI if necessary. There is no further information on whether a C-T scan and/or MRI were performed.

The applicant’s resignation for the good of the service was approved on 19 May 1992 and he was discharged with a discharge under other than honorable conditions on 2 June 1992.

The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge. On 7 October 1997, the ADRB concluded that the reason for the applicant’s discharge was proper but inequitable as to characterization and voted to upgrade his discharge to a general discharge under honorable conditions. He was given notification of eligibility to received retired pay at age 60 (his 20-year letter) and was transferred to the Retired Reserve effective 6 April 1999.

On 6 September 2000, the applicant underwent right knee arthroscopy with partial meniscectomy and a patella and femoral chondroplasty.

On 12 January 2001, the applicant underwent left knee arthroscopy to repair a posterior horn medial meniscus tear.

On 6 July 2001, the applicant underwent right shoulder diagnostic arthroscopy to repair a rotator cuff tear.

A VA Rating Decision dated 30 January 2002 again denied the applicant’s claim for service connection for a bilateral knee condition and right shoulder injury. Regarding his knees, the reasons for the decision indicated that the VA examination noted that he had no tenderness in his knees in the prone position. No swelling, no fluid, no crepitus. He had negative McMurray and drawer signs. While sitting he did not appear to have any difficulty. He was noted to have minimal to moderate degenerative changes of the bilateral knees. His service medical records were negative for mention of an injury sustained to the knees. Regarding his right shoulder injury, x-rays completed on 6 July 2001 showed the rotator cuff tendons to be intact. There was mild impingement of the supraspinatus tendon from spurs from the inferior aspect of the acromioclavicular joint. They were noted to be secondary to degenerative changes. There was no evidence of joint effusion or other bony or joint abnormalities. The examiner diagnosed degenerative changes at the acromioclavicular joint with spurs from the inferior margin. There was slight impingement on the supraspinatus tendon.

Army Regulation 635-120, Officer Resignations and Discharges, effective 1 June 1989, provided that the immediate commander of officers undergoing separation would ensure that procedures pertaining to medical examinations were followed as stated in Army Regulation 40-501.

Army Regulation 40-501 provides medical fitness standards for enlistment, appointment, retention, and separation. The version dated 14 June 1989, in effect at the time, Table 8-3, schedule of separation medical examinations, listed requirements for officers separating under Army Regulation 635-100 but not Army Regulation 635-120. However, paragraph 8-23, while noting that there was no statutory requirement for members of the Active Army (to include USAR members on active duty) to undergo a medical examination incidental to separation from Active Army service, it was Army policy to accomplish a medical examination if the soldier requested it.

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 4-1 states that a soldier charged with an offense under the Uniform Code of Military Justice or who is under investigation for an offense chargeable under the Uniform Code of Military Justice which could result in dismissal or punitive discharge may not be referred for, or continue, disability processing unless the investigation ends without charges.

Army Regulation 600-8-1, Part V, dealing with LDIs, provides that an LDI must be conducted in all cases of injury not a result of enemy action. Paragraph 39-2 states that it is essential to arrive at a determination as to whether misconduct or negligence was involved in the disease, injury, or death and, if so, to what degree. Depending on the circumstances of the case, an investigation may or may not be required to make this determination.

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. A Chronological Record of Medical Care dated 15 July 1991, presumably when the applicant was on active duty, indicated the applicant “banged up” his shoulders. It noted also, however, that he had full range of motion of the shoulders (even though with elevated pain).

3. There is no service medical evidence to show the applicant had a knee problem. A civilian medical report dated 2 December 1991 indicated that films of the applicant’s left knee revealed a deformity of the proximal metaphysis of the left fibula from an old fracture. The left knee joint space and articular margins, however, were normal without recent fracture although there was proliferative spurring of the anterior superior aspect of the patella. Films of the right knee revealed the joint space and articular margins to be satisfactory with minimal narrowing of the medial joint space although there was evidence of proliferative spurring of the anterior service of the patella. A document dated 2 April 1992 indicated he was under a civilian doctor’s care for probable internal derangement of the knee. A C-T scan was recommended and possible MRI if necessary. However, there is no further information on whether a C-T scan and/or MRI were performed and it appears his knee conditions were not serious enough to warrant surgery until 2001.

4. There is no similar evidence of civilian care for the applicant’s contended shoulder problem and it appears it was not until July 2001 that he underwent right shoulder diagnostic arthroscopy to repair a rotator cuff tear.

5. The Board acknowledges that it appears an LDI should have been initiated at least regarding the applicant’s “banged up” shoulders injury and there is some evidence that an LDI was requested by his chain of command for this injury around February 1992. However, as a commissioned officer, the applicant should have taken the initiative (in the form of a complaint to the inspector general or other appropriate office) to discover the whereabouts of the LDI at least once the VA denied him service connection in March 1992. At this late date, an LDI cannot be properly performed.

6. Similarly, if the applicant believed he was being denied proper medical attention, he was a commissioned officer and had a responsibility to himself to complain to the inspector general or other appropriate office to voice that legitimate complaint. He provides no evidence to show that he made such a complaint at the time.

7. Because the applicant was under charges, it appears he was not eligible for referral to the physical disability system. Because he was not a member of the Active Army at the time of his separation, he had no statutory or regulatory right to a separation physical before he was discharged even though he may have requested one.

8. 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

__MMD__ __RA__ __CLG__ DENY APPLICATION

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

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INDEX

CASE ID	AR2002073627
SUFFIX
RECON
DATE BOARDED	2002/08/20
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	108.00
2.
3.
4.
5.
6.