MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 11 September 2003
         DOCKET NUMBER: AR2003087355

         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. Wanda L. Waller		Analyst

The following members, a quorum, were present:

Mr. Stanley Kelley		Chairperson
Mr. Christopher J. Prosser		Member
Mr. John T. Meixell		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)

APPLICANT REQUESTS: Reconsideration of his request for a disability retirement.

APPLICANT STATES: In effect, that the entire record of his mental and physical disabilities following his service in Desert Storm fully support a discharge based on total disability. He contends that he was pressured to get out because of the draw down of forces and that he tried to obtain consideration for evaluation by a Medical Evaluation Board (MEB) or a Physical Evaluation Board (PEB) but was unsuccessful.

COUNSEL CONTENDS: The American Legion, as counsel for the applicant,
notes that the applicant previously applied to the Army Discharge Review Board and the Army Board for Correction of Military Records and his requests for a narrative reason change were denied. Counsel also points out that the applicant was granted a 100 percent rating of disability by the Veterans Administration and that medical records show he injured his right knee in 1984 during airborne operations and subsequently incurred several other knee injuries. Counsel further points out that the applicant has provided three letters of new and material evidence from doctors who treated him during his active duty service and recommended that he be evaluated by a MEB. Counsel avers that the treating physicians are most qualified to state thoroughly the extent to which the applicant was inclined to be returned to duty or to be granted a PEB for discharge determination.

NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records which were summarized in the Memorandum of Consideration prepared to reflect the Board's previous consideration of the Docket Number AR2000040891 by the Army Board for Correction of Military Records (ABCMR) on 25 January 2001.

The applicant submits a letter, dated 13 February 2002, from the Chief of Orthopedic Surgery for the 5th Mobile Army Surgical Hospital (MASH) deployed to the Persian Gulf at the time in question. He attests that he evaluated the applicant on 30 September 1990 in Saudi Arabia, that the applicant had a flexion contracture of his right knee, and that he recommended that the applicant return to the United States for a MEB.

The applicant submits a letter, dated 1 December 2001, from the Commander of the 5th MASH at the time in question. He attests that he asked the Chief of Orthopedic Surgery for the 5th MASH to evaluate the applicant because it became obvious that the applicant could not perform his duties satisfactorily due to extreme pain and loss of motion in his right leg. He states that he concurred with the Chief of Orthopedic Surgery's recommendation for an evaluation by a MEB.

The applicant also submits a letter, dated 18 April 2002, from an Army orthopedic surgeon at Fort Bragg, North Carolina, at the time in question. He attests that "I do feel, however, that [the applicant] would have been entitled to MEB evaluation, which would have most likely have resulted in separation from the service secondary to his loss of motion of the knee which is documented in his medical record file, as well as persistent knee pain and discomfort secondary to scarring from his anterior cruciate ligament reconstructive surgery and injury. This required him to have permanent duty limitations, which consisted of no squatting or crawling, should have physical training only at his own pace and duration, and no kneeling. I do think it is most appropriate to reconsider his separation status, as I feel a review of AR [Army Regulation] 40-501 would certainly demonstrate that his post surgical condition with limitations would result in MEB separation."

The applicant's submissions are new evidence which will be considered by the Board.

On 3 October 2000, the Medical Advisor to the Army Review Boards Agency opined that there was no evidence of requests or considerations of a MEB by any of the applicant's treating physicians.

There is no evidence in the applicant's service personnel records which shows that he had any medically unfitting disability which required physical disability processing.

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 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 2-2b, as amended, provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he 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.

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 noted the statements provided by the three physicians in support of the applicant's claim for disability processing. However, at the time of the applicant's separation on 29 September 1992 there was no evidence of requests or considerations for a MEB by any of the applicant's treating physicians. There is also no evidence in the applicant's service personnel records which shows that he had any medically unfitting disability which required physical disability processing.

3. Evidence of record shows that at the time of the applicant's separation competent medical authority determined that he was then medically qualified for separation. Also, evidence of record shows the applicant voluntarily requested discharge. Accordingly, the applicant was separated from active duty under the Fiscal Year 1992 Enlisted Voluntary Early Transition Program with Special Separation Pay, not as the result of a medical condition.

4. The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision rendered by the ABCMR on 25 January 2001 (Docket Number AR2000040891).

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

SK_____ CJP____ JTM______ DENY APPLICATION

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

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INDEX

CASE ID	AR2003087355
SUFFIX
RECON	Yes
DATE BOARDED	20030911
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	108.0000
2.
3.
4.
5.
6.