MEMORANDUM OF CONSIDERATION


                  IN THE CASE OF:
                                                                                                                                                        

                  BOARD DATE: 18 NOVEMBER 2003
                  DOCKET NUMBER: AR2003085664

         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. Deborah L. Brantley		Senior Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Mr. Mark D. Manning		Member
Ms. Barbara J. Ellis		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 enlistment grade be corrected to show that he enlisted in pay grade E-6 and that his records be submitted to a standby board for consideration for promotion to pay grade E-7 as a result. He also asks for all back pay and allowances associated with restoration of his grade.

APPLICANT STATES: In effect, that he suffered an injury to his knee while on active duty and was erroneously medically discharged. He states he was not provided an opportunity for reclassification, nor allowed to exhaust the option of physical therapy. He notes that during his Medical Evaluation Board (MEB) proceedings he attempted to convey to the board that he should be allowed to recover before being discharged as unfit, but his attempts were not successful.

He states that he continued to appeal the MEB decision of “unfit for duty” after his discharge, but was not heard until his congressional representative got involved. He states that after a follow-up physical examination, he was found fit for continued active Army service and then enlisted once again in the Regular Army in October 2001.

However, the applicant notes that his break in service resulting in his returning to active service in pay grade E-5 vice E-6. He states that because he “was erroneously placed on [the] TDRL [Temporary Disability Retired List], [he] was authorized reinstatement in [his] separation grade of SSG [Staff Sergeant].”

In a letter to his congressional representative, dated 30 April 2001, the applicant indicated that in March 1999 he went to a recruiting station to discuss the possibility of returning to active duty. He states that he underwent a physical examination and that the examining physician found him “fit for duty with limitation.” As such, he was not permitted to enlist. He stated that in December 1999 he again attempted to enlist and was told that he need a letter stating that he could “perform my duties without limitation.” He states he underwent another physical and “was found fit for duty without limitations.” However, he was told, once again that his request for enlistment had been denied, this time without any reason.

In support of his request he submits a December 2000 statement from a physician indicating the applicant had completed 8 months of intensive physical therapy and was doing very well, a copy of the letter the applicant wrote to his congressional representative requesting assistance, a May 2001 character statement, a 1998 statement supporting his retention on active duty, a copy of the 1998 document denying his request to remain on active duty, as well as extracts from his Official Military Personnel File (OMPF) documenting his successful military service. He also submits portions of his disability processing documents and a photograph of him in his military uniform.

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

After serving in the United States Marine Corps and military Reserve Component elements, the applicant enlisted and entered active duty as a Regular Army Soldier in January 1993. He was promoted to pay grade E-5 on 1 February 1995 and to pay grade E-6 on 1 April 1996. He performed duties in the chemical operations arena.

On 22 October 1997 the applicant sustained an injury to his knee while participating in unit physical training. A Statement of Medical Examination and Duty Status notes that he stepped on “unlevel” ground and fell. That same statement notes that the applicant was placed on a profile and had knee surgery.

Copies of the applicant’s disability processing documents, provided by the applicant in support of his request, notes that on 6 June 1998 he underwent an MEB. The MEB concluded that the applicant’s “post surgical arthritis of his right knee status post ACL [anterior cruciate ligament], moderately severe” and his “left patellofemoral pain, medically acceptable” were incurred while entitled to base pay and did not exist prior to his entry on active duty. The MEB referred the applicant to a PEB (Physical Evaluation Board).

The reverse side of the MEB proceedings, which would have contained the applicant’s concurrence or nonconcurrence with the MEB findings, was not available to the Board, or provided by the applicant.

The applicant underwent an informal PEB on 11 July 1998. The PEB concluded that the applicant’s right knee pain with arthritis status post injury to anterior cruciate ligament with anterior cruciate ligament reconstruction prevented the applicant from satisfactory performance of duty in his grade and specialty. The disability was rated at 10 percent. The PEB found the applicant unfit and recommended that he be separated with entitlement to severance pay. The PEB also noted that the applicant had requested continuation on active duty under the provisions of Army Regulation 635-40, Chapter 6.

The reverse side of the PEB proceedings was also not available to the Board, but there is no indication that the applicant requested a formal PEB.

Included with the applicant’s petition to this Board was an 18 June 1998 letter supporting the applicant’s retention on active duty. The author was the applicant’s unit first sergeant. He indicated that the applicant was “in all respects” a military man, and that his “positive attitude, energetic personality and ability to inspire others made him the perfect choice for Headquarters Platoon Sergeant….” He noted that to discharge the applicant from the Army “would be a great disservice….” The statement made no reference to the applicant’s medical fitness for continued active duty.
According to a 14 August 1998 memorandum, provided by the applicant, his request to remain on active duty under the provisions of Army Regulation 635-40 was denied.

On 26 September 1998 the applicant was discharged, in pay grade E-6, with entitlement to more than $35,000 in disability severance pay.

According to a 13 December 2000 statement, provided by the applicant, a physician at Womack Army Medical Center noted that the applicant had completed 8 months of intensive physical therapy and “at present, is doing very well.” He stated that the applicant reported that he could run 2 miles daily with no difficulty and than on his current physical examination he (the applicant) demonstrated full range of motion and good stability in his right knee. He indicated the applicant could do deep knee bends and duck-walk with ease, that his gait was normal, and that he demonstrated no pain or swelling on his knee. He concluded that the applicant was “able to complete the physical demands that military standards dictate.”

A 9 May 2001 statement, addressed to “whom it may concern” reemphasized that the applicant was “a top quality organizer, administrator, and all around soldier.” The author, who stated he had known the applicant for approximately four and one half years, indicated that in his opinion, at the time of the applicant’s separation from active duty, he “was both mentally and physically fit for continued service.”

A July 2001 physical examination, provided by the applicant, contains a stamp that he was found “qualified” for airborne training, but also noted that the applicant exceeded the Army weight standards by 30 pounds.

Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) states, in pertinent part, that any application for enlistment who was last separated or discharged from any component of the Armed Forces for medical reasons, with or without disability, will require a waiver to enlist in the Regular Army or the Army Reserve. Documents, also provided by the applicant, note that by 6 August 2001 the applicant’s medical waiver to return to military service was approved.

On 4 October 2001 the applicant executed enlistment documents indicating that he was enlisted in the United State Army for a period of 3 years, in pay grade
E-5.

A July 2002 performance evaluation report notes that the applicant was performing duties in his original chemical operations specialty and that he had been promoted to pay grade E-6 in June 2002 and passed an annual physical fitness test in February 2002.
Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states, in pertinent part, that Headquarters, Department of the Army may defer the disposition of a Soldier who, although unfit because of physical disability, can still serve effectively with proper assignment limitation. A Soldier continued on active duty must be unfit because of physical disability. The disability must be a basically stable condition or one for which accepted medical principles show slow progression. The Soldier must be able to maintain himself or herself in a military environment without jeopardizing individual health or the health of others. The Soldier must not require an excessive amount of medical care.

Army Regulation 601-210 states, in pertinent part, that an applicant for enlistment who was last separated from any component of the military, and who enlists within 24 months from the date of his or her separation, the enlistment grade will be pay grade E-4. If enlisting after 24 months from completion of military service, the enlistment grade will be determined by the Commanding General, United States Total Army Personnel Command (now known as the United States Army Human Resources Command-Alexandria).

In the processing of this application, an advisory opinion was obtained from the Chief, Policy and Eligibility Inquiries Branch, United States Army Human Resources Command-Alexandria, which noted that the applicant was separated from the Regular Army on 26 September 1998 and that his reentry grade of E-5 was approved by the Commanding General, United States Total Army Personnel Command. The opinion recommended no change in his enlistment grade. Included with the advisory opinion was a copy of the 22 August 2001 grade determination action, which authorized the applicant’s enlistment in the Regular Army in pay grade E-5. It noted that the determination was valid for 180 days and that the term of enlistment could not exceed 4 years.

An advisory opinion was also obtained from the United States Army Physical Disability Agency, which noted that it “appears that the applicant concurred” with his MEB at the time and that the applicant concurred with the findings and recommendation of the PEB and waived his entitlement to a formal PEB. It noted that the applicant was never placed on the TDRL. The advisory opinion also noted that the fact that “2-3 years later his knee appears to be better, after no continued military duties/stress of the knee, is good news…however, his improved condition does not establish that the PEB findings in 1998 were in error.”

The applicant was provided an opportunity to respond to the advisory opinions. In a statement dated 9 September 2003 the applicant indicated that his knee surgery was designed to enable him to remain on active duty and that a “close reading of that report will show that surgery was successful.” He states the fact that he was allowed to return to active duty after “unsupervised rehabilitation” in his original specialty and that he was found qualified for Airborne Training, in spite of being 30 pounds overweight, was evidence that his disability separation was erroneous. He maintains that “common sense suggests that had [his] knee been in the shape determined by the board, that the additional weight would have prevented [him] from returning to active duty due to the additional strain on the knee….” He also argues that his return to active duty with a profile code of
1-1-1-1-1-1 is also evidence that he was discharged erroneously. He states that “common sense would suggest that an injury severe enough to medically discharge [him] from active duty would not have ever healed to the point where” his profile would be “straight 1s.” In support of his rebuttal he submits a copy of a 23 September 1997 medical statement that notes that his ACL was stable and a post operative report on which he highlighted the words that “he had been doing fairly well without any specific injury.”

The 23 September 1997 medical statement however, also notes that the applicant was prescribed “Percocet” and the use of crutches. The post operative report also noted that prior to his surgery that the applicant “has had problems over the past couple of months, with swelling with activity, inability to use the knee, constant pain, occasionally had some giving away, and had the onset of recurrence of pain with giving away. He was unable to return to activity in his MOS [military occupational specialty].”

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

1. The evidence shows that the applicant sustained an injury to his knee and underwent disability processing, which ultimately concluded that he was unfit for continued military service. As noted in the advisory opinion from the United States Army Physical Disability Agency, the applicant concurred with the findings of the informal PEB and did not demand a formal hearing, which may have provided him an additional venue to argue that his knee condition did not render him unfit.

2. Although the applicant did attempt to remain on active duty by requesting continuation on active duty following his disability determination, that request was denied.

3. While the applicant indicates that he attempted to return to the military as early as March 1999, he submits no evidence that substantiates that argument. However, notwithstanding his attempts to return to active duty, regardless of the date, regulatory requirement dictated that an individual who was separated from a previous period of active duty, by reason of physical disability, required a medical waiver in order to enlist. The evidence shows that the applicant did not obtain that waiver until late summer 2001, nearly 36 months after his separation from active duty.

4. The Board concurs with the conclusions of the advisory opinion from the United States Army Physical Disability Agency in that the applicant’s ability to return to full military duties, after more than 36 months is not evidence that his disability separation was erroneous. The applicant’s arguments that he was fit for duty in September 1998 are not supported by any medical evidence of record.

5. The applicant’s enlistment in pay grade E-5 was appropriate, and approved in accordance with enlistment regulations. There is no evidence to suggest that there was any error or injustice in his enlistment grade determination.

6. Because there was no error in his enlistment grade, the applicant’s request for promotion consideration to pay grade E-7 and back pay and allowance, need not be addressed.

7. 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 that requirement.

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

__JNS __ __MDM__ __BJE __ DENY APPLICATION

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

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INDEX

CASE ID	AR2003085664
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20031118
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	108.00
2.
3.
4.
5.
6.