RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        9 May 2006
      DOCKET NUMBER:  AR20050009926


      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. Joyce A. Wright               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John Slone                    |     |Chairperson          |
|     |Mr. Thomas M. Ray                 |     |Member               |
|     |Ms. Ernestine Fields              |     |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, in effect, that his uncharacterized discharged
be upgraded to honorable.

2.  The applicant states that a review of his DD Form 3647 (Inpatient
Treatment Record Cover Sheet) and Standard Form (SF) 513 (Medical
Record/Consultation Sheet) revealed a contradiction of each other.  His SF
513 was fairly clear that there was no serious damage to the knee, yet his
DD Form 3647 stated that everything said to be clear with the knee was
wrong and this led to his discharge.

3.  The applicant provides a copy of a DD Form 3647 and SF 513 in support
of his request.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel, the Veteran Service Officer for the American Legion, was notified
to review the applicant's records on 28 March 2006.  However, counsel did
not respond to that letter within the 30 days allotted by the ABCMR for
records review.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 12 September 1991, the date of his discharge.  The application
submitted in this case is dated 23 June 2005 but was received on 7 July
2005.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant's records contain a copy of a SF Form 88 (Report of
Medical Examination), dated 9 May 1991, that was prepared prior to his
entrance on active duty (AD) in the Army National Guard (ARNG), which shows
that he was medically qualified for enlistment with a 111111 physical
profile.  His examination indicated that he had arthroscopic surgery at age
15, L (left) knee for torn cartilage.

4.  The applicant provides a copy of SF 513, dated 9 May 1991, which
indicates that he had a football injury at age 15, in which he tore his
medial meniscus of the left knee.  He had arthroscopic surgery for repair,
was actively running and working out regularly, and had no further
problems.  On his examination, the left knee revealed arthroscopic portal
scars, full range of motion, no instability to valgus or varus straining,
no anterior draws test, and no crepitation of the patella against the
femoral condyle.  His X-rays were within normal limits.  He was diagnosed
as having arthroscopic menisectomy of the left knee, with good functional
results.

5.  The applicant's military records show he enlisted in the Texas ARNG
(TXARNG) on 14 May 1991, as an armor crewman (19E), for 8 years, in the pay
grade of E-1.

6.  The applicant's records contain a copy of DA Form 4707 (Entrance
Physical Standards Board [EPSBD] Proceedings), dated 21 August 1991.  The
EPSBD stated that the applicant was an 18 year old white male in his second
week of basic combat training (BCT) with bilateral knee pain since his
entry on AD on 30 July 1991, left worst than right.  He had a previous
injury history, a football injury of the left knee, with repair of the
medial meniscus through arthroscopy in 1988.  He had off and on
intermittent bilateral knee pain prior to service entry and had persistent
symptoms of pain, swelling, locking and giving way of the left knee since
service entry on 30 July 1991, with military related activities; i.e.
running, PT (physical training), road march, etc.  He was diagnosed as
having internal knee derangement of the left knee (EPTS [exited prior to
service]); ACL (Anterior Cruciate Ligament) laxity of the left knee (EPTS);
and bilateral patellofemoral joint syndrome (EPTS).  He was found unfit for
military service in accordance with Army Regulation 40-501, chapter 2,
paragraph 2-10c(3) and 2-39c.  The applicant was issued a profile until
separation, and was advised to follow-up in the Troop Medical Clinic (TMC)
with persistent symptoms.  The EPSBD did not recommend the applicant for
consideration for retention.  The findings of the EPSBD were approved by
the medical approving authority on 22 August 1991 and were forwarded to
competent medical authorities.

7.  The applicant was discharged on 12 September 1991, under the
provisions of National Guard Regulation (NGR) 600-200, chapter 8,
paragraph 8-26f, for failure to meet medical procurement standards, with
an uncharacterized discharged.






8.  The applicant provides a copy of his DA Form 3647, dated 12 September
1991, which indicates that he was found unfit for enlistment under Army
Regulation 635-200, chapter 5, paragraph 5-11, with a separation date of
12 September 1991.  It revealed that he was diagnosed as having internal
derangement of the left knee (EPTS), anterior cruciate ligament laxity,
left knee, EPTS, and bilateral patelloffemoral joint syndrome, EPTS.

9.  On 30 April 2004 the Army Discharge Review Board denied the applicant's
petition to upgrade his discharge.

10.  National Guard Regulation (NGR) 600-200 governs procedures for
enlisted personnel of the Army National Guard.  Paragraph 8-26 covers
reasons, applicability, codes, and board requirements for administrative
discharges from the Reserve of the Army and/or the State ARNG.  Paragraph 8-
26(f) pertains to
failure to meet medical procurement standards of Army Regulation 40-501,
chapter 2, prior to entry on IADT (initial active duty for training).

11.  Army Regulation 635-200 sets forth the basic authority for separation
of enlisted personnel.  Paragraph 5-11 specifically provides that 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, active
duty for training, or initial entry training will be separated.  A medical
proceeding, regardless of the date completed, must establish that a medical
condition was identified by appropriate medical authority within six months
of the Soldier’s initial entrance on active duty, that the condition would
have permanently or temporarily disqualified the Soldier for entry into the
military service had it been detected at the time, and the medical
condition does not disqualify the Soldier from retention in the service
under the provisions of Army Regulation 40-501, chapter 3.  The
characterization of service for Soldiers separated under this provision
will normally be honorable, but will be uncharacterized if the Soldier has
not completed more than 180 days of creditable continuous active duty prior
to the initiation of separation action.

12.  Army Regulation 40-501, at chapter 3, provides standards for medical
retention.  Basically, members with conditions as severe as listed in this
chapter are considered medically unfit for retention on active duty.

13.  Army Regulation 40-501 governs medical fitness standards for
induction, enlistment, appointment, retention, separation, retirement,
officer procurement programs and related policies and procedures.
Paragraph 2-10c(3) pertains to surgical corrections of any knee ligaments
if symptomatic or unstable.


14.  Paragraph 2-39c of the regulation pertains to general and
miscellaneous conditions and defects.  It states that the causes for
rejection for appointment, enlistment, and induction includes any deformity
which is marked unsightly or which impairs general functional ability to
such an extent as to prevent satisfactory performance of military duty.

15.  Army Regulation 635-40, chapter 5, provides, in pertinent part, that
if a Soldier is processed for failure to meet procurement medical fitness
standards within the first six months of entry on active duty and the
condition existed prior to the term of service, then the Soldier will be
discharged in an entry level status with uncharacterized service.

16.  Title 10, U.S. Code, section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  The U.S. Court of Appeals, observing
that applicants to the Army Discharge Review Board (ADRB) are by statute
allowed 15 years to apply there, and that this Board's exhaustion
requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens
that filing period, has determined that the 3 year limit on filing to the
Army Board for Correction of Military Records (ABCMR) should commence on
the date of final action by the ADRB.  In complying with this decision, the
ABCMR has adopted the broader policy of calculating the 3-year time limit
from the date of exhaustion in any case where a lower level administrative
remedy is utilized.

DISCUSSION AND CONCLUSIONS:

1.  The date of the application to the ABCMR is within three years of the
decision of the ADRB; therefore, the applicant has timely filed.

2.  The evidence of record shows that the applicant sustained an injury to
his left knee, at the age of 15, prior to his entry on AD, EPTS.  He
appeared before an EPSBD and was diagnosed as having internal derangement
of the left knee, anterior cruciate ligament laxity, left knee, and
bilateral patelloffemoral joint syndrome, EPTS.

3.  The applicant was found unfit for military service, was issued a
profile until separation, and was advised to follow-up in the TMC with
persistent symptoms.  He was not recommended for retention and the medical
approving authority approved the findings of the EPSBD on 22 August 1991.




4.  The applicant was separated from the service under the provisions of
NGR 600-200, chapter 8, paragraph 8-26f, for failure to meet medical
procurement standards.

5.  The applicant's separation was accomplished in compliance with
applicable regulations with no indication of procedural errors, which would
tend to jeopardize his rights.  The type of discharge directed and the
reasons for that separation were appropriate considering all of the facts
of the case.

6.  The applicant contends that the DD Form 3647 and the SF 513 revealed a
contradiction of each other.  However, his SF 513 was prepared prior to his
entry on AD and indicated that he had arthroscopic surgery for repair with
no further problems.  His DD Form 3647 indicated that he was found unfit
for enlistment under the provisions of Army Regulation 635-200, chapter 5,
paragraph 5-11, and the applicant was separated from the service.
Therefore, he is not entitled to an upgrade of his uncharacterized
discharge to honorable.

7.  In order to justify correction of a military record, the applicant must
show, to the satisfaction of the Board, or it must otherwise 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

__S  ____  _E.F.____  _TMR___  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.



                                  __         John Slone______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050009926                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060509                                |
|TYPE OF DISCHARGE       |UNCHAR                                  |
|DATE OF DISCHARGE       |19910912                                |
|DISCHARGE AUTHORITY     |AR . .NGR PARA 8-26f                    |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |

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