MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 1 July 2003
         DOCKET NUMBER: AR2003090444

         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. Ted s. Kanamine		Chairperson
Mr. Melvin H. Meyer		Member
Ms. Karen Y. Fletcher		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: Correction of appropriate military records to show a reentry (RE) code which would allow reenlistment. In effect, this constitutes a request for removal or waiver of those disqualifications which preclude reenlistment.

APPLICANT STATES: That his knee was reinjured when his chain of command disregarded his doctor's advice to abstain from field exercise during his rehabilitation. As a result, he went before a medical evaluation board (MEB) and eventually retired for physical disability. After 3 years of rehabilitation, the doctors at the Department of Veterans Affairs (VA) gave his knee a clean bill of health. Presently, he participates in sports such as soccer and volleyball and he runs 3 days a week. He understands that he may not be able to go back into combat arms, but he would fully qualify for a support branch. He believes he would be able to pass the Army Physical Fitness Test.

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

He enlisted in the Regular Army on 26 July 1989. He completed basic training and advanced individual training and was awarded military occupational specialty 11M (Fighting Vehicle Infantryman).

The MEB Narrative Summary shows the applicant sustained a left knee hyperextension injury while running during physical training in May 1993. He was diagnosed with an anterior cruciate ligament rupture and treated with activity modification and physical therapy. He reinjured his knee during physical training in August 1993. He was sent back to duty without restrictions but subsequently complained of continued instability and knee pain. In May 1994, he was diagnosed with an osteochondritis dissecans (a loose piece of bone or cartilage that separates from the end of the bone, making the joint unstable, usually affecting the knees and elbows) lesion in the lateral aspect of the femur. In June 1994, an arthroscopy revealed a partial posterior cruciate ligament (PCL) rupture. He was initially treated nonoperatively but then underwent a left knee PCL reconstruction. He did well initially until he slipped and fell on ice in February 1995 and injured his nonbraced knee. An arthroscopy revealed his posterior cruciate allograft to be partially torn. It was repaired and the applicant went back to a physical therapy and bracing regimen. The applicant was then deployed to a field training exercise in July 1995 despite a profile recommending against his participation. There he sustained a hyperextension injury to his braced knee. In October 1995, his PCL reconstruction was redone. The procedure went well; however, the applicant complained of persistent problems with a feeling of instability, chronic anterior knee pain, and recurrent swelling.

In January 1996, the applicant appeared before an MEB. He was diagnosed with left knee PCL rupture status post PCL reconstruction utilizing fresh frozen Achilles allograft; failed allograft and status post PCL reconstruction of left knee utilizing autogenous patellar bone tendon bone graft; and left knee recurrent pain and effusion secondary to diagnoses 1 and 2. The MEB referred the applicant to a physical evaluation board (PEB).

On 2 February 1996, a PEB found the applicant to be unfit due to recurrent pain and effusion of the left knee with instability status post PCL reconstruction with persistent laxity requiring wearing of a derotational PCL brace at all times with a 30 percent disability rating. The PEB recommended he be placed on the Temporary Disability Retired List (TDRL). On 2 February 1996, the applicant concurred with the findings and recommendation and waived a formal hearing of his case.

On 29 March 1996, the applicant was released from active duty and placed on the TDRL effective 30 March 1996. He was given an RE code of 4.

On 5 May 1997, the applicant underwent a TDRL evaluation. He was found unfit due to recurrent pain and effusion of the left knee with persistent ligamentous laxity requiring fulltime use of a functional PCL brace for stability. He was removed from the TDRL effective 30 May 1997 and permanently retired effective 31 May 1997 with a 30 percent disability rating.

A magnetic resonance imaging (MRI) dated 7 November 2001 revealed the applicant's PCL graft to be of normal signal. No meniscal tears were seen. The collateral ligaments were unremarkable. Loculated fluid collections were noted surrounding the cruciate ligaments. There was irregularity at the patellar attachment at the patellar tendon, probably representing post-operative changes. There was small joint effusion. There was apparent thinning of the cartilage overlying the lateral femoral condyle and lateral patellar facet.

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 4 applies to persons not qualified for continued Army service and the disqualification is not waivable.

Army Regulation 601-210, table 4-3, states that permanent retirement by reason of physical disability is a nonwaivable disqualifying separation.

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 permanently retired by reason of physical disability, he is permanently disqualified from reenlistment.

3. The Board notes the applicant's contention that doctors at the VA gave his knee a clean bill of health. However, the Board also notes that his 2001 MRI did not present a picture of a perfectly healthy knee. There was still small joint effusion and apparent thinning of the cartilage. The Board acknowledges the applicant's willingness and perhaps ability to serve the Army in a support branch. However, even support soldiers may find themselves in a combat situation requiring the best possible physical health in order to survive.

4. The Board regrets the actions of the applicant's chain of command that put his career in jeopardy; however, it is in the applicant's and the Army's best interest not to grant a waiver that would put the applicant or a fellow soldier in harm's way.

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

__tsk____ _mhm____ _kyf____ DENY APPLICATION

                  Karl F. Schneider
                  Director, Army Review Boards Agency

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INDEX

CASE ID	AR2003090444
SUFFIX
RECON
DATE BOARDED	20030701
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.