RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        6 December 2005
      DOCKET NUMBER:  AR20050002165


      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. G. E. Vandenberg              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Bernard P. Ingold             |     |Chairperson          |
|     |Mr. Donald W. Steenfott           |     |Member               |
|     |Mr. Edward E. Montgomery          |     |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 that his medical discharge with severance pay be
rescinded and he be returned to active duty.

2.  The applicant states that he was erroneously discharged because his
doctor indicates that the Medical Evaluation Board/Physical Evaluation
Board (MEB/PEB) should be rescinded.  His physician found him to be in
excellent physical condition and indicated he was qualified to remain on
active duty.  The applicant contends that the doctor's recommendation was
not properly forwarded for action.

3.  The applicant provides copies of the following documents:

      a.  a 22 January 2005 memorandum from a lieutenant colonel reports
that the applicant was attached to his battalion from 2002 through 2004,
his performance was exceptional, he maintained a high level of physical
fitness and he should be allowed to return to active duty;


      b.  a captain reports, in an undated memorandum, that he commanded the
applicant from May through October 2004, he praises the applicant's
abilities and performance, describes the applicant's separation as a
"bureaucratic mistake" and recommends reinstatement;


      c.  approximately 20 pages of service medical record,

      d.  Officer Evaluation Reports (OERs) for the periods February through
July 2003, July through November 2003 and November 2003 through May 2004;
and


      e.  two DD Forms 214 (Certificate of Release or Discharge) showing
active duty from 28 August 1997 through 15 December 1999 and 15 January
2003 through 21 October 2004.

CONSIDERATION OF EVIDENCE:

1.  The records show the applicant first entered active duty on 28 August
1997.  He was commissioned a second lieutenant (2LT) on 23 September 1998.

2.  While in training the applicant sustained an injury to his right knee
requiring surgical intervention.  Following the surgery the applicant
continued to experience pain and his case was forwarded to a MEB.
3.  On 29 September 1999 the MEB found that the applicant was suffering
from a medical condition that impaired his ability to serve and referred
his case to a PEB.

4.  A 7 October 1999 the PEB recommended that the applicant be medically
separated with a 10 percent disability evaluation.  The applicant concurred
with the PEB determination.

5.  The applicant was discharged on 15 December 1999 under the provisions
of Army Regulation 635-200, paragraph 4-2B(3) by reason of a disability
with severance pay.

6.  The applicant again entered active duty on 15 January 2003.

7.  Except for the documentation provided by the applicant and the report
of the PEB, the records of the applicant's second period of service are not
of available to the Board.

8.  On 23 February 2004, a PEB found the applicant physically unfit due to
chronic bilateral knee pain rated at "0" percent and recommended separation
with severance pay.  The applicant concurred with the findings and
recommendation and waived a formal hearing.  The findings and
recommendations were approved on 26 February 2004.

9.  A DA Form 3349 (Physical Profile), dated 19 April 2004, indicates that
the applicant was given a permanent L2 (lower extremities) profile.  The
restrictions indicate he is to run and road march at his own pace and
distance.  There is a note on the form stating, "rescind MEB/PEB".

10.  On 21 October 2004 the applicant was again discharged under the
provisions of Army Regulation 635-200, paragraph 4-2B(3) by reason of a
physical disability with severance pay.

11.  A DD Form 2807 (Report of Medical History), dated 18 March 2005,
reported to be an active duty periodic examination, indicates the applicant
had surgery on his right knee in 1999, on both of his knees in 2001, and
had Lasik eye surgery in 2004.  In his answer to item 26 "Have you ever
been discharged from the military for any reason?" the applicant responded
that he had been "medically discharged (TDRL) Dec 1999, brought back to
active duty Aug 2002".  The form does not list his 2004 discharge.

12.  A DD Form 2808 (Report of Medical Examination), dated 18 March 2005,
reported to be an active duty retention examination, lists only scars on
his head, right palm, and left knee as abnormalities.  In the physical
profile section he is rated as "1" across the spectrum.

13.  A DD Form 2807 (Report of Medical History), dated 19 April 2005, for
the purpose of reentry onto active duty, indicates the applicant had
surgery on his right knee in 1999, on both of his knees in 2001, and had
Lasik eye surgery in 2004.  In his answer to item 26 "Have you ever been
discharged from the military for any reason?" he responded that he had been
discharged due to "ETS" (expiration of the term of service) on 21 October
2004.  He did not list the 1999 separation.

14.  A DD Form 2808 (Report of Medical Examination), dated 19 April 2005,
states the applicant had surgery on his right knee in 1999 and on his left
knee in 2001.  The physical findings indicate the applicant had full range
of motion with no pain or atrophy at either site.  There is a note on the
form that states, "Boarded then rescinded".  In the physical profile
section of the form, he is rated all "1s" except for a "2" under the
section for eyes

15.  The available record does not contain any documentation on the second
MEB/PEB.

DISCUSSION AND CONCLUSIONS:

1.  The available records and the applicant's various statements contain a
number of contradictory statements and entries.

2.  The applicant reported he was recalled to active duty in February 2002;
however, except for the 22 January 2005 memorandum from the lieutenant
colonel, there is no documentation of any service between 15 December 1999
and 15 January 2003.

3.  The applicant's 1999 DD Form 214 indicates he was medically discharged
with severance pay; however, at a later date the applicant indicated he was
placed on the Temporary Duty Retired List (TDRL).  There is no
documentation to support his statement that he was placed on the TDRL.

4.   On the DD Form 2807 (Report of Medical History), dated 19 April 2005,
the applicant states that his separation was for ETS, yet both of the DD
Forms 214 indicate he was discharged for a medical disability with
severance pay.

5.  The applicant concurred with the findings and recommendation of the
February 2004 PEB.  The approval of the PEB resulted in the applicant's
discharge.  There is insufficient evidence to show that the 19 April 2004
medical recommendation to "rescind MEB/PEB" had any force or effect.  Given
the above noted inconsistencies in the applicant's assertions, it may not
have even been based upon a fully informed decision by the physician.

6.  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.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___BPI__  __EEM__  __DWS__  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.




                                  __     Bernard P. Ingold____________
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050002165                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051206                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |Deny                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |100                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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