MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 13 May 2003
         DOCKET NUMBER: AR2003083992

         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 L. Amos		Analyst

The following members, a quorum, were present:

Ms. Margaret K. Patterson		Chairperson
Mr. Ted S. Kanamine		Member
Mr. Lawrence Foster		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 reentry (RE) code be changed to 1.

APPLICANT STATES: That his disability has improved and he wants to reenter the service. He provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and medical documents dated August and September 2002 as supporting evidence.

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

After having had prior service in the U. S. Navy and Army National Guard, he enlisted in the U. S. Army Reserve on 27 January 1997. He entered active duty in an active Guard/Reserve (AGR) status on 5 July 1998.

A Medical Board Narrative Summary noted that the applicant began to have left hip pain in August 1998 and that he had left knee arthroscopy in November 1998 and right knee arthroscopy in May 1999. The pain did not radiate and there were no radicular symptoms. X-rays taken in May 1999 showed bilateral marked osteoarthritis with the left greater than the right. Orthopedics diagnosed him with bilateral hip osteoarthritis but recommended that he was too young (age 37) to undergo any total hip arthroplasty or joint resurfacing arthroplasty at that time.

The Summary noted that the applicant tolerated his job as a unit clerk well but when it came to marching, stretching, and physical training he had pain and decreased motion which interfered with his ability to perform up to par as other soldiers.

On 24 November 1999, a Medical Evaluation Board (MEB) referred the applicant to a Physical Evaluation Board (PEB) with a diagnosis of osteoarthritis, bilateral hips. On 9 December 1999, the applicant agreed with the MEB's findings and recommendation.

On 20 March 2000, an informal PEB reconsidered the applicant's case and found him to be physically unfit by reason of bilateral marked hip osteoarthritis with a 20 percent disability rating. (The original PEB consideration is not available but it had apparently determined the applicant's disabilities were not compensable). The PEB recommended his separation with severance pay.

On 30 March 2000, the applicant apparently concurred in the PEB's findings and recommendation although he initialed in the Soldiers Determined Fit section of the DA Form 199 (Physical Evaluation Board (PEB) Proceedings).

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On 31 May 2000, the applicant was discharged for physical disability, with severance pay, in pay grade E-5, after completing 13 years, 4 months, and 26 days of creditable active service. He was given an RE code of 3.

In August 2002, the applicant underwent a physical evaluation, apparently performed by the Department of Veterans Affairs. The examiner noted that the applicant's complaints were minimal except for the chronic stiffness of the left leg with some pain. The applicant's range of motion in the left hip were found to be flexion and extension of 0 to 130 degrees, abduction of 30 degrees, adduction of 20 degrees, internal rotation of 15 degrees, and external rotation of 30 degrees. The examiner diagnosed him with having mild degenerative arthritis of both hips. However, the examiner recommended the applicant be granted a waiver to reenter the military with a waiver to walk 2.5 miles, swim, or bicycle rather than perform the required 2-mile run.

On 7 September 2002, the applicant was examined by a U. S. Navy Reserve physician's assistant. This examiner noted that the applicant would easily be able to do physical training but swimming would be a much better alternative.

Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned RE codes based on their service records or the reason for discharge. Army Regulation 601-210 covers eligibility criteria, policies and procedures for enlistment and processing into the Regular Army (RA) and the U.S. Army Reserve. Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment. That chapter includes a list of armed forces RE codes, including RA RE codes.

RE code 3 applies to persons not qualified for continued Army service but the disqualification is waivable.

Soldiers separated for physical disability with severance pay fall into this category.

Recruiting personnel have the responsibility for initially determining whether an individual meets current enlistment criteria. They are required to process a request for waiver under the provisions of chapter 4, Army Regulation 601-210.

Army Regulation 40-501 governs medical fitness standards for procurement, retention, and separation. Chapter 2 (Physical Standards for Enlistment, Appointment, and Induction), paragraph 2-10, states that an individual shall be considered unacceptable if the joint ranges of motion of the hip are less than abduction to 45 degrees and rotation of 60 degrees (internal and external combined). Paragraph 2-1 states that chronic osteoarthritis which prevents the satisfactory performance of military duty is a cause for rejection. Paragraph 1-6 states that medical fitness standards cannot be waived by medical examiners or by the examinee. Waiver authorities include The Surgeon General; the Commander, U. S. Army Recruiting Command; the Commander, U. S. Army Reserve Personnel Command; and the Commander, U. S. Total Army Personnel Command.

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. In view of the fact the applicant was discharged for physical disability with severance pay, the assigned RE code of 3 was and still is appropriate. The applicant was disqualified from reenlistment but the disqualification is waivable.

3. Although there appears to be an error in where the applicant initialed on the DA Form 1999 concurring with the findings and recommendation of the PEB, there is no evidence to show that he appealed or otherwise disputed the fact of his discharge for physical disability. The Board therefore presumes that he did in fact concur with the finding that he was physically unfit for further service.

4. Since there is no error in the applicant's records, it appears that his recruiter should take the required steps to process a waiver of his medical disqualification. Officials at the Office of The Surgeon General or elsewhere could remove the disqualification if they choose to do so. He has provided no evidence to show that they have not chosen to do so.

5. Nevertheless, the Board notes that the applicant does not meet enlistment standards due to having osteoarthritis that interfered at one time with the satisfactory performance of his military duty. (The Board notes that the Army cannot guarantee that a soldier will always have a sedentary job.) The Board also notes that the applicant does not meet enlistment standards due to having several hip range of motion measurements below acceptable standards. If the applicant should fail to receive a medical waiver, he would have to submit compelling evidence to contraindicate that judgment before the Board would reverse its decision.

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6. 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___ __tsk___ __lf ____ DENY APPLICATION

                  Karl F. Schneider
                  Director, Army Review Boards Agency

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INDEX

CASE ID	AR2003083992
SUFFIX
RECON
DATE BOARDED	20030513
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY	Mr. Chun
ISSUES 1.	100.03
2.
3.
4.
5.
6.