RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        13 OCTOBER 2005
      DOCKET NUMBER:  AR20050001268


      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             |
|     |Ms. Deborah L. Brantley           |     |Senior Analyst       |


      The following members, a quorum, were present:

|     |Mr. Ted Kanamine                  |     |Chairperson          |
|     |Mr. Patrick McGann                |     |Member               |
|     |Ms. Carol Kornhoff                |     |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.  The applicant requests permanent physical disability retirement or
separation.
2.  The applicant states that his discharge should have been permanent and
should include all his medical conditions.  Army Regulation 40-501 was not
followed.  His right knee, his hearing loss, and other orthopedic
conditions are  going to require permanent follow-up.  The applicant cites
various paragraphs of the above-mentioned Army regulation, and states that
he has issues with both of his knees, his right wrist, and his left ankle.

3.  The applicant provides a copy of his 2 September 2004 memorandum
withdrawing his demand for a formal (Physical Evaluation Board) hearing, a
copy of a 31 August 2004 certification by a doctor enabling the applicant
to obtain a parking permit, a copy of a 7 June 2004 Medical Evaluation
Board (MEB) proceedings, a copy of an 8 July 2004 Physical Evaluation Board
(PEB) proceedings, a copy of a 21 May 2004 MEB narrative summary, a copy of
a May 2004 report of medical examination, a copy of an audiogram report,
copies of     e-mail messages, a copy of a letter to him from a Member of
Congress (MC), a copy of Section 1552, Title 10, United States Code, a copy
of reassignment orders, dated 30 September 2004, a copy of his 13 December
2004 Honorable Discharge Certificate, a copy of his DD Form 214
(Certificate of Release or Discharge from Active Duty), and a copy of
orders placing him on the temporary disability retired list (TDRL).

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Army Reserve in 1978.  He was on active
duty in the Regular Army from 13 June 1978 to 27 October 1982.  He was
released from active duty with an honorable characterization of service,
and transferred to the Army Reserve.  He reenlisted in the Army Reserve on
29 October 1983.  On         19 March 1984 he enlisted in the Air Force
Reserve for 6 years.  On 1 October 1991 he reenlisted in the Army Reserve
for 6 years.  On 16 August 1997 he again reenlisted in the Army Reserve for
another 6 years.

2.  The applicant’s Noncommissioned Officer Evaluation Reports (NCOERs)
from December 1991 through February 2001 show that he passed the Army
Physical Fitness Test (APFT) 10 times during that period.  He completed
both the basic NCO course and the Advanced NCO course (ANCOC).  On 29 April
1999 he was promoted to sergeant first class.

3.  The applicant’s 11 September 1991 report of medical examination shows
that he had a history of right knee arthroscopy.  In the report of medical
history that he furnished for that examination, he indicated that he had
knee surgery in 1981 and 1982.  In his 2 October 1991 record of military
processing, the applicant indicated that he was drawing a 10 percent
disability rating from the Veterans Administration (VA).

4.  The applicant was discharged from the Army Reserve on 28 June 2001.  He
was appointed a Reserve first lieutenant in the Army Nurse Corps on 29 June
2001.  He completed the Army Medical Department Officer Basic Course on
14 June 2002, exceeding course standards.  On 14 October 2002 he was
discharged from the Army Reserve.  He was ordered to active duty with a
reporting date of 15 October 2002 to Tripler Army Medical Center in Hawaii.

5.  A 21 May 2004 MEB narrative summary shows that the applicant complained
of persistent right knee pain after a right total knee arthroplasty, and
that his referral to the MEB was physician-directed by the Orthopedic
Department.
The examining physician provided a history of the applicant’s condition,
indicating that the applicant stated that he had six knee surgeries and
recently underwent a right total knee arthroplasty on 2 February 2004.  The
summary indicated that since the surgery, the applicant had recurring
effusions over the right knee, and that the applicant stated that the
effusions resulted from prolonged standing at work as well as prolonged
walking, requirements of his job as an operating room nurse.  The summary
indicated that the applicant stated that he experienced giving way episodes
of the right knee while working.

6.  The summary shows that the applicant stated that he sustained a
fracture of his right wrist during basic training in 1978, and that his
right wrist pain limited his range of motion and his ability to hold
retractors and perform functions required of an operating room nurse.  The
summary indicates that the applicant also complained of left ankle pain,
stating that he had suffered multiple left ankle sprains in the past.  It
indicates that the applicant stated that he sustained a nondisplaced
fracture of his left fibula in 1996 while attending the ANCOC.

7.  In examining the applicant’s left ankle, the physician stated that the
impression was that there was moderate lateral ankle instability.  His
examination of the applicant’s right wrist indicated that the degrees of
his plantar (sic – palmar) flexion and dorsiflexion of both wrists were
comparable, and that the left and right hands were neurovascularly intact
distally.

8.  The doctor stated that the plain film of the applicant’s right knee
revealed femoral and tibial components of the right total knee arthroplasy
to be in correct alignment, and that there was no displacement of the
hardware or components.  He stated that there did not appear to be any
fractures of the femur or tibia, and that the components align correctly.
He diagnosed the applicant’s condition as right knee pain, status post
right total knee arthroplasty, and stated that he had moderate to severe
activity-related pain of the right knee that had worsened over the last
three months since surgery, that his upper extremity use was limited at the
right wrist because of his persistent chronic right wrist pain, and that
his right knee pain was exacerbated by excessive walking or standing.  He
stated that the pain was relieved with rest.  He stated that the applicant
would require prolonged pain management treatment as well as prolonged
physical therapy for his right knee.  He stated that the applicant might
also have persistent left ankle pain, given his left ankle instability.

9.  The applicant’s May 2004 report of medical examination indicates that
the applicant had bilateral hearing loss, chronic right knee pain,
degenerative joint disease to the left ankle, and degenerative joint
disease to the right wrist.  He had a physical profile serial of 2 1 3 2 1
1.

10.  On 7 June 2004 a MEB recommended that the applicant be referred to a
PEB because of his right knee pain, status post right total knee
arthroplasty.  The applicant agreed and stated that he did not desire to
continue on active duty.

11.  On 8 July 2004 a PEB described the applicant’s condition as total
right knee replacement, 2 February 2004, after years of chronic
osteoarthropathy.  Initial injury was on active duty in 1980.  The result
was generally good but the pain on standing prevented the applicant from
performing his specialty.  There was a slight instability of joint with
good range of motion.  It indicated that alternate possibilities of rating
for loss of motion, pain, or instability did not exceed minimum rating, and
that his condition was unstable for final rating purposes.  The PEB
indicated that his functional limitations made him medically unfit to
perform his duties, but were such that a permanent evaluation was not
possible.  The PEB found that he was physically unfit and rated his
disability at 30 percent and that he be placed on the TDRL.

12.  On 19 July 2004 the applicant stated that he did not concur with the
findings and recommendations of the PEB, and demanded a formal hearing.
However, on 2 September 2004, he withdrew his request for a formal PEB,
stating that he did not contest the PEB rating of 30 percent, but he also
stated that should he discover any new or additional evidence, he reserved
the right to submit a request for reconsideration.

13.  The applicant was retired on 13 December 2004 and placed on the TDRL
the following day with a 30 percent disability rating.

14.  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 office, grade, rank, or
rating.  It provides for medical evaluation boards, which are convened to
document a Soldier’s medical status and duty limitations insofar as duty is
affected by the Soldier’s status.  A decision is made as to the Soldier’s
medical qualifications for retention based on the criteria in AR 40-501,
chapter 3.  If the MEB determines the Soldier does not meet retention
standards, the board will recommend referral of the Soldier to a PEB.

15.  Physical evaluation boards are established to evaluate all cases of
physical disability equitability for the Soldier and the Army.  It is a
fact finding board to investigate the nature, cause, degree of severity,
and probable permanency of the disability of Soldiers who are referred to
the board; 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.

16.  Army Regulation 635-40 provides that an individual may be placed in a
TDRL status for a maximum period of 5 years when it is determined that the
individual is qualified for disability retirement under Title 10, United
States Code, section 1201, but for the fact that his or her disability is
not stable and the individual may recover and be fit for duty, or the
degree of severity may increase or decrease so as to warrant a change in
the disability rating.  A Soldier on the TDRL must undergo a period medical
examination and PEB evaluation at least once every 18 months to decide
whether a change has occurred in the disability for which the Soldier was
temporarily retired.  Medical examiners will recommend removal of the
Soldier’s name from the TDRL as soon as the Soldier’s condition permits.

17.  That regulation also 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 office, grade,
rank, or rating.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that the applicant had problems with his right knee
since at least 1981; nonetheless, he served on active duty and in the Army
Reserve, despite his condition.  He successfully passed all physical
training tests, completed both basic and advanced NCO courses, and was
promoted to sergeant first class.  Subsequent to his discharge from the
active Army in 1982, he continued his military service for over 20 years.
He was medically fit for appointment as a commissioned officer in 2001 and
fit for active duty in 2002.

2.  Nevertheless, a MEB determined that his right knee pain interfered with
his duties in accordance with the provisions of Army Regulation 40-501, and
that he should be referred to a PEB.  The applicant agreed.  Noted is the
fact the MEB, although considering the information provided in the MEB
narrative summary, did not find that his ankle condition or his wrist
condition interfered with his duties.

3.  The PEB on 8 Jul 2004, five months after his right knee replacement,
indicated that his knee condition was such that he was unable to perform
his duties, but also determined that his right knee condition was unstable
for a final rating decision, and placed him on the TDRL.  Initially
disagreeing, the applicant on 2 September 2004 withdrew his request for a
formal hearing, stating that he did not contest the PEB decision.

4.  Now, after perusing Army Regulation 40-501, the applicant states that
his right knee condition, his ankle and wrist condition, and his hearing
loss, should dictate a permanent disability rating.  However, he has not
provided any evidence to show that these conditions, other than his right
knee pain, make him unfit to perform his duties.  The applicant’s ankle and
wrist conditions apparently existed for many years prior to the 2004 MEB
narrative summary.  The MEB, in which the applicant concurred, did not
consider them unfit.  Further, there is no evidence that his bilateral
hearing loss is an unfitting condition.

5.  The fact that the PEB determined that the applicant’s knee condition,
five months after his right knee replacement, was not yet stable appears to
be a reasonable and logical decision.  The applicant has provided no
evidence or any good argument to indicate that the decision made by those
authorities was erroneous, or has been an injustice to him.

6.  Consequently, the applicant’s request to be placed on the permanent
disability retired list because of his knee condition, and his other
medical conditions enumerated by him, is denied.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__TK____  ___PM__  __CK ___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.





                                  _____ Ted Kanamine_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050001268                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051013                                |
|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.                      |                                        |


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