MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 21 AUGUST 2003
         DOCKET NUMBER: AR2003086420

         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
Mr. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Mr. Roger W. Able		Member
Ms. Regan K. Smith		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, physical disability retirement or separation.

APPLICANT STATES: That she had medical problems with both knees and her right leg because of an incident in basic training. None of her medical problems were annotated on her DD Form 214 (Certificate of Release or Discharge from Active Duty). She implies that she is receiving a service connected disability rating from the Department of Veterans Affairs.

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

The applicant enlisted in the Army on 3 April 1980. She underwent training as a motor vehicle operator at Fort Leonard Wood, Missouri. Medical records, which she submits with her request, show that she was treated for right knee and thigh pain in April 1980, and in May of that year was diagnosed with chondromalacia, a softening of the articular cartilage.

In August 1980 she was assigned to the Presidio of San Francisco as a motor vehicle operator. She was treated for bilateral knee pain in June and July of 1981, and in September 1981 received a temporary profile for pain in both of her knees.

In January 1982 the applicant was assigned to a combat support battalion in Germany as a heavy vehicle driver.

A 12 August 1982 clinical record shows that the applicant was seen by an orthopedic physician because of chronic bilateral knee pain she sustained while in basic training. Initial orthopedic evaluation was done at Letterman Army Medical Center in July of 1981, where the diagnosis of patellofemoral malaligment was made. She was also noted to have Q-angles of 18 degrees bilaterally, and to have patella ulta and was begun on a conservative treatment reigmen of aspirin, vigorous quad rehabilitation, and appropriate profile. In September 1981 she underwent a follow-up examination at which time she described no relief with the regimen. She was switched to another regimen, and a right heel lift and a scanner gram performed. The examining physician stated that Q-angles were measured to be 20 degrees and x-ray findings were indicative of patella ulta as well as a decrease in the lateral patella femoral angle seen on sunrise view at 20 degrees flexion. He stated that there was no effusion; however, there was a positive patella compression sign and severe pain with palpation of the distal pole of the patellus. She was a conservative treatment failure and because of her inability to perform her job in Europe, should be transferred back to the United States for primarily a reevaluation of her persistent knee problems and disposition for reassignment, surgical realignment procedures, or medical board. The physician stated that they were initiating transfer of the applicant for consideration of several possible alternatives, which included surgical treatment or a medical board.
The applicant's DA Form 2-1 (Personnel Qualification Record) shows that she was transferred to the Medical Holding Company at the Army Medical Clinic at Fort Gordon, Georgia in September 1982. In October of that year she was transferred to Fort Benning, Georgia as a light vehicle driver with a support battalion.

A September 1983 medical record shows that she was seen at the Orthopedic Clinic at Martin Army Hospital at Fort Benning for her recurrent right knee pain. That record shows that at various times she wore knee braces for relief of pain. In January 1983 she underwent an arthroscopy of her left knee. Since that time she had continued to have moderate pain in her knees with activity, with the right knee being more painful than the left.

An 11 November 1983 medical record indicates that she stated that her company was giving her the option of a hardship discharge to take care of her child, or a medical discharge secondary to her chondromalacia. That record indicates that physical examination revealed she was in no acute distress. No limp was noted. She had full active range of motion of both knees. The doctor diagnosed her condition as chondromalacia patella with synovitis documented arthroscopy in 1983. He stated that she was to receive a permanent P2 profile for pain to her knees. In a note on the bottom of that record, the applicant stated that she refused a hardship discharge and waited for a medical decision. She stated that she was told that a medical board would look at her case, but that never happened.

The applicant was released from active duty on her ETS (expiration of term of service) on 2 February 1985.

Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

Army Regulation 40-501 provides that for an individual to be found unfit by reason of physical disability, she must be unable to perform the duties of his office, grade, rank or rating. Performance of duty despite an impairment would be considered presumptive evidence of physical fitness.

Army Regulation 635-40, in effect at that time, provides that when a member is being separated by reason other than physical disability, her continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that she was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.


Title 38, United States Code, sections 1110 and 1131, 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. 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.

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. The applicant's continued performance of duty raised a presumption of fitness which she has not overcome by evidence of any unfitting, acute, grave illness or injury concomitant with her separation.

2. The fact that the VA, in its discretion, may have awarded the applicant a disability rating is a prerogative exercised within the policies of that agency. It does not, in itself, establish physical unfitness for Department of the Army purposes.

3. The award of VA compensation does not mandate disability retirement or separation from the Army. The VA, operating under its own policies and regulations, may make a determination that a medical condition warrants compensation. The VA is not required to determine fitness for duty at the time of separation. Furthermore, the VA can evaluate a veteran throughout her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.

4. The applicant did not have any medically unfitting disability which required physical disability processing. Therefore, there is no basis for physical disability retirement or separation.

5. The applicant has submitted neither probative evidence nor a convincing argument in support of her request.

6. 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.
7. 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 __ __RWA__ __RKS__ DENY APPLICATION

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

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INDEX

CASE ID	AR2003086420
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20030821
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.