RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           28 SEPTEMBER 2004
      DOCKET NUMBER:  AR2004100865


      I certify that hereinafter is recorded the true and complete record
of the proceedings 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. Fred Eichorn                  |     |Chairperson          |
|     |Ms. Karen Fletcher                |     |Member               |
|     |Mr. Ronald Blakely                |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  In effect, the applicant requests physical disability retirement or
separation.

2.  The applicant made no statement, but deferred to a Member of Congress
(MC), who appealed his case.  That official stated that the applicant was
discharged from the Army because of a previously existing injury, which was
incorrect.  He stated that the applicant had four years of marching and
participating in drill teams as a 4-year ROTC (Reserve Officer Training
Corps) student prior to enlisting, and experienced no difficulties.  He was
an usher in a movie theater requiring him to be on his feet up to 4-6
hours, with no problems.  His entrance physical examination detected no pre-
existing injury. The preponderance of evidence shows that he had no injury
prior to enlisting in the Army.  The enclosed medical documents show an
initial recommendation of    MEB 40 (service connected) was changed to MEB
200, with no explanation.  Military authorities initially acknowledged that
the applicant's injury was service connected.  He stated that the applicant
was counseled (as shown by the MEB recommendation) that his injury was a
result of a training discharge [accident?].  When asked to sign the medical
proceedings, he questioned the MEB 200 code and was yelled at by a sergeant
and told to sign it.  Somewhat coerced, he did so.  Considering the
diagnosis, grade one MCL (medial collateral ligament) tear, had the injury
been pre-existing, there was no possible way he could have endured 4 weeks
of boot camp.  The evidence shows that he was injured after boot camp.  The
MC requests that the applicant's case be reviewed to determine if his
discharge should be changed to honorable because of an injury that he
received while training, enabling the applicant to receive compensation
from the Department of Veterans Affairs for his injury.

3.  The applicant provides the documents depicted herein.

CONSIDERATION OF EVIDENCE:

1.  The applicant's official military personnel file (OMPF) is not
available to the Board.  The evidence available is that submitted by the
applicant.

2.  The applicant completed Junior ROTC on 10 July 1999.  Prior to his
enlistment in the Army, he had four jobs, one as an usher in a movie
theater.
Prior to his enlistment the applicant underwent a medical examination.  The
      30 April 2002 report of that examination shows that he was medically
fit for enlistment.  In the report of medical history that he furnished for
the examination, the applicant stated that he had been rejected for service
in the Marine Corps because of asthma, but did not indicate any other
injuries or ailments.  He did require and did receive a medical waiver
because of his asthma.

3.  The applicant's DD Form 214 (Certificate of Release or Discharge from
Active Duty) shows that he entered on active duty on 4 June 2002.

4.  A medical report prepared by an orthopedic surgeon at Ireland Army
Community Hospital, Fort Knox, Kentucky, where the applicant was assigned,
shows that the applicant complained of right knee pain – the date shown is
July 2001.  The report indicates that the applicant was hurt when he
twisted his right knee with external rotation while running, and that it
was worse and worse.  Sometimes his knee hurt around the patella and the
back of the knee.  He could run a little but it hurt.  He could carry a
ruck sack and could march a little, but could not do facing movements.  He
has had physical therapy and medication but they did not help.  A neoprene
sleeve helped a little.  Crutches did not help much and he stopped using
them.  Physical examination included information that he was in no acute
distress, that he walked, sat, and stood well, and that his legs appeared
straight and equal.  There was no effusion. There was no redness, swelling,
or heat.  There was tenderness to palpation over the medial femoral
condyle, medial tibial plateau, and medial joint line on the right.   The
doctor diagnosed him as an overweight ex-smoker with right knee pain after
grade one MCL tear.  He recommended, "MEB 40.  PL3 (permanent L3 profile).
Arthritis panel.  Continue conservative care.  Watch weight.  Continue to
cease smoking."

5.  The 25 November 2002 narrative summary of Entrance Physical Standards
Board (EPSBD) Proceedings, titled, "Medical Board 200," conducted by the
same aforementioned doctor provided much of the same information indicated
above.  The summary also indicated that despite months of conservative
care, the right knee hurt worse.  It hurt him while sitting, on stairs, and
when he tried to sleep.  The pain was burning and sharp.  He again
diagnosed the applicant as an overweight ex-smoker with right knee pain
after grade one MCL tear, not resolving despite adequate conservative
treatment.  He recommended continued conservative care with exercise as
tolerated and medication as needed, stating  that the applicant should
watch his weight and continue to cease smoking.  He indicated that his
temporary L3 profile permitted push-ups, sit-ups, lifting            40
pounds, wearing LCE (?), firing, but no running or jumping.  He indicated
that he was not fit for duty under the provisions of Army Regulation 40-
501, paragraph 3-41c(1), and that a waiver was not recommended.  The
applicant was given a temporary profile of 1 1 T3 1 1 1 because of his
right knee condition.

6.  On 3 December 2002 the medical authority approved the EPSBD proceedings
A 4 December 2002 memorandum indicates that proceedings were forwarded to
the applicant's commanding officer, providing guidance concerning the
applicant's options with reference to the proceedings, e.g., consult with
counsel, agree, disagree, reconsideration, etc.  There is no evidence to
show what the applicant decided.

7.  The applicant was discharged at Fort Knox on 19 December 2002 under the
provisions of Army Regulation 635-200, paragraph 5-11, because of failure
to meet medical/physical procurement standards.  He had 6 months and 16
days of service.  His character of service was uncharacterized.

8.  Army Regulation 40-501, chapter 3, provides the medical standards for
retention and separation, and gives the various medical conditions and
physical defects that may render a Soldier unfit for further military
service.  Paragraph     3-41 pertains to general and miscellaneous
conditions and defects.  Paragraph 3-41c, however, pertains to sleep apnea.
 There is no paragraph 3-41c(1) as indicated in the doctor's medical
summary of 25 November 2002.  There is, however, a paragraph 3-41e(1) which
pertains to conditions (individually or in combination) that result in
interference with satisfactory performance of duty as substantiated by the
individual's commander or supervisor.

9.  Army Regulation 635-40 establishes the Army Physical Disability
Evaluation System, and sets forth policies, responsibilities, and
procedures that apply in determining whether a Soldier is unfit because of
physical disability to reasonably perform the duties of his or her office,
grade, rank, or rating.  It provides for medical evaluation boards (MEBs)
to determine if a Soldier is qualified for retention based on the criteria
in Army Regulation 40-501, chapter 3, and if not, provides for referral to
a physical evaluation board (PEB) to evaluate the physical condition of the
Soldier against the physical requirements of the Soldier’s particular
office, grade, rank or rating; to provide a full and fair hearing for the
Soldier; and to make findings and recommendation to establish eligibility
of a Soldier to be separated or retired because of physical disability.
That regulation provides for MEBs and PEBs for both service-connected
disabilities and for disabilities that existed prior to active military
service (EPTS).

10.  Army Regulation 635-200 provides for the separation of enlisted
Soldiers.  Paragraph 5-11 provides for the early separation of Soldiers who
were not medically qualified under procurement medical fitness standards
when accepted for enlistment, or who became medically disqualified under
these standards prior to entry on active duty.  Medical proceedings,
regardless of the date completed, must establish that a medical condition
was identified by appropriate military medical authority within 6 months of
the Soldier’s initial entry on active duty, which would have permanently or
temporarily disqualified him or her for entry into the military service had
it been detected at that time, and which does not disqualify the Soldier
for retention in the military service under the provisions of Army
Regulation 40-501, chapter 3.  The character of service for a Soldier
separated under this paragraph will normally be honorable, or an
uncharacterized description of service if in entry level status.  The
regulation defines entry level status as the first 180 days of continuous
active duty.

DISCUSSION AND CONCLUSIONS:

1.  There is no medical evidence available concerning the applicant's
medical condition – no medical documents showing when he twisted his knee,
evaluation or treatment of his injury, other than that furnished by the
applicant.  The documents he furnished show that he complained of right
knee pain going back to July 2001, prior to his entry on active duty.  His
injury then would have been a preexisting condition, and not service-
connected.  Because of the lack of medical evidence, it is not possible to
make a determination concerning his request.  Nonetheless, regularity is
presumed, that is, the evidence submitted shows he had a right knee injury
prior to his entry on active duty, a condition that existed prior to his
service (EPTS).

2.  The acronyms MEB40 and MEB200 are not identified as official Army
acronyms or abbreviations.  They may be the surgeon's personal shorthand
for Army Regulations 635-40 and 635-200.  If this is so, there is no
evidence, and consequently no explanation, as to why the surgeon determined
that the applicant should be processed for separation under the provisions
of Army Regulation 635-200, vice Army Regulation 635-40.  Nevertheless, as
indicated above, processing under the provisions of Army Regulation 635-40,
which could entail MEB and PEB proceedings, does not necessarily suggest
processing because of a service-connected condition.

3.  The evidence submitted shows that medical authorities determined that
the applicant was not medically qualified under procurement medical
conditions when he enlisted; consequently, he was discharged.  The
documents that the applicant submits are insufficient to show otherwise.
Therefore, his request for physical disability retirement or separation is
not granted.

4.  The applicant was not in an entry level status when he was discharged.
He served on continuous active duty in excess of 180 days.  Consequently,
the characterization of his service as reflected on his DD Form 214 should
be corrected to show "Honorable," vice "Uncharacterized."
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

___FE __  ___KF  __  __RB ___  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for partial relief.  As a result, the Board
recommends that all Department of the Army records of the individual
concerned be corrected by showing that he was discharged on 19 December
2002 with an honorable characterization of service.

2.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to
physical disability retirement or separation.




            ____   Fred Eichorn______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004100865                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040928                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |PARTIAL GRANT                           |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |108.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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