MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 3 July 2003
         DOCKET NUMBER: AR2003086903

         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:

Mr. Raymond V. O'Connor		Chairperson
Ms. Kathleen A. Newman		Member
Mr. Patrick H. McGann		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 retirement for length of service be changed to a medical retirement.

APPLICANT STATES: That he had been under treatment for discoid lupus since 1984. He had right knee surgery in 1981 and in 1995. He had left knee surgery in 1982 and in 1996. His doctor was preparing a medical evaluation board (MEB)/physical evaluation board (PEB) for him but he never appeared before a board. He believes he was treated unjustly because he was not given an opportunity to appear before a medical board which he believes would have resulted in a medical retirement. He provides a copy of his service medical records, his approved applications for retention on active duty, his DD Form 214 (Certificate of Release or Discharge from Active Duty), and his Department of Veterans Affairs (VA) Rating Decision as supporting evidence.

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

He enlisted in the Regular Army on 30 December 1975. He underwent right knee surgery in August 1981. He was promoted to Staff Sergeant, E-6 on 10 August 1982 in military occupational specialty (MOS) 76Y (Unit Supply Specialist). He underwent left knee surgery in September 1982.

Item 4 (Assignment Considerations) of the applicant's DA Form 2-1 (Personnel Qualification Record) shows he underwent a military occupational specialty/medical retention board (MMRB) on 24 September 1984 and was retained in MOS 76Y.

A Standard Form 513 (Consultation Sheet) dated 19 November 1996 indicates the applicant had discoid lupus (the most common form of chronic cutaneous lupus erythematosus, marked by coin-shaped lesions most commonly seen on the scalp and face), for the past 12 years. There was no evidence of full SLE (systemic lupus erythematosus).

The applicant last reenlisted on 23 December 1992 for 3 years.

A DA Form 638 (Recommendation for Award) dated 29 August 1995 shows the applicant was recommended for a retirement Meritorious Service Medal. Achievement Number 4 indicated he served as a supply sergeant at Blue Grass Army Depot, Richmond, KY from June 1993 through December 1995. He was responsible for maintaining and ensuring all annual and semiannual property book hand receipt inventories were completed in accordance with regulation. He provided assistance to hand receipt holders on turn-ins, reports of survey, and administrative adjustments. He was the training noncommissioned officer for all military at the Depot. The proposed citation stated in part that his superlative duty performance reflected credit upon himself and the Army. The award recommendation was approved.
On 24 October 1995, the applicant was advised of the rights and advantages that could accrue to him by voluntarily remaining on active duty beyond the scheduled date of his release for the purpose of completing hospital care and/or physical disability evaluation and he requested such retention on active duty.

On 2 November 1995, the applicant's request to be retained on active duty, until 29 March 1996 or completion of physical disability processing, whichever came first, was approved.

In November 1995, the applicant underwent right knee partial lateral menisectomy. Severe degenerative joint disease was noted and a total knee replacement was apparently advised (which occurred after he retired).

On 8 February 1996, the applicant was advised of the rights and advantages that could accrue to him by voluntarily remaining on active duty beyond the scheduled date of his release for the purpose of completing hospital care and/or physical disability evaluation and he requested such retention on active duty.

On 20 February 1996, the applicant's request to be retained on active duty, until 29 June 1996 or completion of physical disability processing, whichever came first, was approved.

On 20 May 1996, the applicant was advised of the rights and advantages that could accrue to him by voluntarily remaining on active duty beyond the scheduled date of his release for the purpose of completing hospital care and/or physical disability evaluation and he requested such retention on active duty.

On 29 May 1996, the applicant's request to be retained on active duty, until 29 September 1996 or completion of physical disability processing, whichever came first, was approved.

On 14 August 1996, the applicant was advised of the rights and advantages that could accrue to him by voluntarily remaining on active duty beyond the scheduled date of his release for the purpose of completing hospital care and/or physical disability evaluation and he requested such retention on active duty.

On 19 August 1996, the applicant's request to be retained on active duty, until 29 December 1996 or completion of physical disability processing, whichever came first, was approved.

In August 1996, the applicant underwent left knee partial lateral menisectomy.

On 22 November 1996, the applicant's request to be retained on active duty, until 29 March 1997 or completion of physical disability processing, whichever came first, was approved. His request for this period of retention is not available.
The applicant retired for length of service on 1 June 1997.

A VA Rating Decision dated 19 December 1997 shows the applicant was awarded a 30 percent disability rating for his right knee condition; a 20 percent disability rating for his left knee condition; a 30 percent disability rating for his discoid lupus erythematosus with alopecia (loss of hair); a 0 percent disability rating for excision of vocal cord polyp; and a 0 percent disability rating for scar from removal of mass on chin.

Army Regulation 635-40 governs the evaluation for physical fitness of soldiers who may be unfit to perform their military duties because of physical disability. It states that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the soldier reasonably may be expected to perform because of his or her office, grade, or rank.

Army Regulation 635-40 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. At the time, when a soldier was being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the soldier was scheduled for separation or retirement, created a presumption that a soldier was fit. Application of the rule did not mandate a finding of fit. The presumption was rebuttable and was overcome when the preponderance of evidence established the soldier was physically unable to perform adequately the duties of his or her office, grade or rank.

Army Regulation 635-40 further states that many medical and surgical procedures are performed when a soldier is nearing the end of his military career. These are intended to improve a soldier's health, not to render him unfit. Corrective treatment and convalescence will not be considered as a valid contribution to disability unless unexpected adverse effects occur that are disabling or contribute to disability and are ratable.

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.

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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 Board notes that it appears the applicant was originally scheduled for a length of service retirement on 1 January 1996. There is no indication that he was ever unable to perform his military duties. In fact, his retirement award recommendation showed that at least as of 29 August 1995 he performed his duties as a supply sergeant in a superlative manner. Since there is no evidence to show that he was medically unfit to perform his military duties, the Board concludes that the Presumption of Fitness rule has not been overcome.

3. In addition, it is not clear to the Board that the applicant was ever scheduled for physical disability processing. Several times the applicant indicated he was requesting to remain on active duty beyond his scheduled date of release for the purpose of completing hospital care and/or physical disability evaluation. Considering there is no evidence to show he was unfit to perform his military duties, the Board presumes he was retained in order to under go his knee surgeries. As Army Regulation 635-40 indicates, surgical procedures performed when a soldier is nearing the end of his military career are intended to improve a soldier's health, not to render him unfit.

4. 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 regulation, 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 considered insufficient to render him medically unfit for duty and yet be rated by the VA.

5. 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

__rvo___ __kan___ __phm___ DENY APPLICATION

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

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INDEX

CASE ID	AR2003086903
SUFFIX
RECON
DATE BOARDED	20030703
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY	Mr. Chun
ISSUES 1.	108.00
2.
3.
4.
5.
6.