RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        6 July 2006
      DOCKET NUMBER:  AR20050010076


      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. W. W. Osborn, Jr.             |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Eric N. Andersen              |     |Chairperson          |
|     |Mr. Michael J. Flynn              |     |Member               |
|     |Mr. Dennis J. Phillips            |     |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 uncharacterized discharge from the Army
Reserve (USAR) be changed to medical.

2.  The applicant states that he was permanently injured while on active
duty and was unable to complete his training.  He indicates the Fort
Jackson, South Carolina medical record showing his knee problems existed
prior to service (EPTS) is in error.

3.  The applicant provides copies of a 5 August 2004 DA Form 5181(Screening
Note of Acute Medical Care), 27 June 2005 Department of the Army Letter
Orders 05-178-00002 discharging the applicant, a letter from his family
physician, a physical therapy progress note, and a Standard Form 507
(Clinical Record, Functional Capacity Certificate).

CONSIDERATION OF EVIDENCE:

1.  A 12 September 2003 DA Form 2808 (Report of Medical Examination),
completed prior to his induction, listed no complaints or findings of any
abnormalities.

2.  The applicant enlisted in the Army Reserve (USAR) on 28 October 2003
and entered initial active duty for training (IADT) on 18 February 2004.

3.  On 4 March 2004 the applicant received treatment for a fracture to his
jaw.  The injury was found to be in the line of duty (LOD).

4.  An 18 May 2004 DA Form 5181 indicates the applicant had been having
joint pain at the left knee and left wrist for one and a half weeks.  The
applicant described that pain as a dull "ackey" pain behind the knee cap.
The examination found crepitous in the kneecap and a "popping" during the
range of motion testing.  He was diagnosed as having a left wrist sprain
and left knee tendonitis.

5.  MedicineNet.com describes crepitous in a joint as a clinical sign
characterized by a peculiar crackling, crinkly, or grating feeling or sound
in the joints.  It represents cartilage wear in the joint space.

6.  An undated Army Training Requirements and Resources System (ATRRS)
printout indicates the applicant was directed to report for basic training
for the period 23 February 2004 through 28 April 2004.  There are also two
reservations listed for attendance at the Officer Candidate School Ft.
Benning, Georgia, class 507, for the period 13 June 2004 through 17
September 2004, and class 508, for the period 23 August 2004 through 2
December 2004.

7.  A 5 August 2004 DA Form 5181 indicates the applicant was referred for a
medical examination to determine if his left knee problem had existed prior
to entry in the service (EPTS).  The attending physician assistant (PA)
indicated the applicant was in his third week of basic training and had the
complaint of knee problems for nine weeks.  In the comments block the PA
gave a diagnosis of left knee Osgood Schlatters Disease and stated "EPTS
with profile until discharge".  The Record of Acute Medical Care portion of
the form, signed by the same PA, gives the diagnoses of unresolved wrist
sprain and unresolved knee tendonitis.  The applicant was referred to
physical therapy for his knee.

8.  MedicineNet.com describes Osgood Schlatters disease as a condition
where the bony protrusion below the knee (called the tibial tuberosity)
becomes inflamed.  The patella tendon inserts here and through overuse can
tug away at the bone causing inflammation.  New bone grows back causing a
bony lump.  The clinical signs are swelling, pain, and tenderness just
below the knee, over the shin bone (the tibia).

9.  A 15 September 2004 DD Form 214 (Certificate of Release or Discharge
from Active Duty) states the applicant was honorably released from IADT due
to completion of required active service.  He was transferred to the 630th
Transportation Company in Washington, Pennsylvania.  He had served 6 months
and 26 days of active duty with 3 months and 20 days of prior inactive
service.

10.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows he
enlisted on 10 March 2003, entered IADT on 18 February 2004, was released
from IADT and transferred to the USAR on 15 September 2004 with assignment
to the 336th Military Police Battalion, a Troop Program Unit (TPU), on
15 October 2004.

11.  A 6 January 2005 physical therapy outpatient progress note indicates
that the applicant was receiving care for left patellar tendonopathy and
his running should be restricted to one mile or less.  There is no loss of
range of motion noted.

12.  The 26 January 2005 Standard Form 507 shows the applicant is suffering
from right knee patellar tendonopathy and left knee degeneration and
chondrosis.  It was noted that the applicant was not able to walk 6 miles
with a 40 pound ruck sack, 2 miles with a full fighting load, be on his
feet for four hours, or participate in a 2 mile run due to his knee
problems.  No loss of range of motion in the knees was noted.  The
conditions and limitations were determined to be permanent.

13.  MedicineNet.com describes chondrosis, also called chondromalacia, or
chondromalacia patellae, as a softening of the articular cartilage of the
kneecap.  The disorder occurs most often in young adults and may be caused
by trauma, overuse, parts out of alignment, or muscle weakness.  Instead of
gliding smoothly across the lower end of the thigh bone, the kneecap rubs
against it, thereby roughening the cartilage underneath the kneecap.  The
damage may range from a slight abnormality of the surface of the cartilage
to a surface that has been worn away completely to the bone.  Traumatic
chondromalacia occurs when a blow to the knee cap tears off either a small
piece of articular cartilage or a large fragment containing a piece of bone
(osteochondral fracture).  The most frequent symptom of chondromalacia is a
dull pain around or under the kneecap that worsens when walking down stairs
or hills.

14.  On 5 April 2005 the 336th Military Police Battalion initiated
separation proceedings under Army Regulation 135-178, paragraph 6-6, Entry
Level Separation (ELS), due to not being medically qualified under
procurement medical fitness standards.

15.  The applicant provided a 19 May 2005 personal statement, in rebuttal
to the uncharacterized separation, wherein he stated he had been injured in
basic training and that the problem with his knees had not preexisted his
entry onto IADT.  He admitted that he was still having problems with his
knees that might preclude his continuation in the Army.

16.  Associated with his rebuttal, the applicant provided a 21 April 2005
statement from his family physician that indicated the applicant did not
have a history of any complaints of knee problems prior to his entry onto
active duty and offered the opinion that the applicant's knee problems are
probably related to his military service.

17.  On 27 June 2005 Department of the Army, Headquarters, 99th Regional
Readiness Command Letter Orders 05-178-00002 separated the applicant from
the USAR with an uncharacterized discharge under Army Regulation 135-178.

18.  Army Regulation 135-178 (Army National Guard and Army Reserve,
Enlisted Administrative Separations), paragraph 1-8 states that a medical
examination is required for Soldiers being processed for an ELS under
paragraphs 6-6.

19.  Army Regulation 135-178, paragraph 6-6 states that a Soldier will be
discharged on determination that they 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 IADT.
 A Soldier found to be not medically qualified under procurement medical
fitness standards will be discharged on the earliest practicable date
following such determination and prior to entry on IADT.

20.  Army Regulation 135-178, paragraph 6-8 states that the service of a
Soldier not separated under this chapter for ELS will be characterized as
honorable unless an uncharacterized description of service is required.

21.  Army Regulation 635-200, paragraph 5-11 provides for the early
separation of those individuals who were not qualified under procurement
medical standards, who manifested symptoms of medical problems that would
have made them not qualified under procurement medical standards or who
became not qualified prior to entry.  Although a Soldier in such
circumstance has a right to request retention, an individual has no right
to be retained.  The retention or separation decision is within the
cognizance of the appropriate discharge authority.  Except in certain
extraordinary cases, uncharacterized entry level separation is mandatory
for all individuals who are in an entry level status at the time separation
processing is commenced.  Separation action must be initiated within the
first 180 days of active duty for Regular Army personnel and for USAR and
Army National Guard Soldiers the 180 days commences when ordered to IADT
(emphasis added).

22.  Army Regulation 40–501 (Medical Services Standards of Medical Fitness)
provides information on medical fitness standards for induction,
enlistment, appointment, retention, and related policies and procedures.
In pertinent, it provides the policy and procedures for separation of
Soldiers whose medical conditions preclude successful performance of duty.
The regulation lists causes for which a Soldier is required (emphasis
added) to be referred to a Medical Evaluation Board (MEB), included the
diagnosis of chondromalacia if it is manifested by frequent joint effusion
or creates a moderate interference with function.

23.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement,
or Separation) 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.  If a Soldier is found unfit because of physical
disability, this regulation provides for disposition of the Soldier
according to applicable laws and regulations.
24.  Army Regulation 635-40, paragraph 3-5 states the Department of
Veterans Affairs Schedule for Rating Disabilities (VASRD) will be used to
assign a disability rating percentage for a medical defect or condition.

26.  Army Regulation 635-40 further states when a commander believes that a
Soldier of his or her command is unable to perform the duties of his or her
office, grade, rank, or rating because of physical disability, the Soldier
will be referred for medical evaluation and if it appears the Soldier is
not medically qualified to perform duty, the Soldier will be processed
through the MEB/PEB system.

27.  The Department of Veterans Affairs Schedule for Rating Disabilities
(VASRD) identifies chondromalacia as rated under diagnosis code 5014
(osteomalacia) that will be rated based on limitation of motion as set
forth under diagnostic code 5003, degenerative arthritis.  Complications of
chondromalacia with no loss of range of motion warrants a 0 (zero) percent
disability evaluation.

28.  Title 10, United States Code, chapter 61, provides disability
retirement or separation for a member who is physically unfit to perform
the duties of his office, rank, grade or rating because of disability
incurred while entitled to basic pay.  A member who has less than 20 years
service and a disability rated at less than 30 percent will receive a
physical disability separation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant had not only served on IADT for 211 calendar days, had
successfully completed IADT, and been honorably separated from IADT but he
had also served an additional 203 calendar days in a TPU prior to the
initiation of his separation under ELS regulations.

2.  Since the applicant had not only completed IADT and served in excess of
180 days prior to the initiation of his separation, the command's use of
the regulation for an ELS separation was and is improper.

3.  This Board operates under the standard of presumption of regularity in
governmental affairs.  This standard states, in effect, that in the absence
of evidence to the contrary, the Board presumes that all actions taken by
the military were proper.  Based on the major errors in the processing of
this Soldier's separation and the lack of any documentation that proper
procedures were followed even under the wrong regulation, the presumption
of regularity should not be accepted as valid or applied in this case.


4.  There is no indication that the applicant was afforded the required
medical examination at the time of the separation.  If one was performed no
record of the findings and/or diagnoses were incorporated in the official
record.  There is also no indication he was referred for MEB.  All
pertinent regulations required that the Soldier be afforded a medical
examination and referred to a MEB prior to being separated for medical
unfitness.

5.  While the available documentation indicates that the applicant's knee
condition was impairing his ability to perform the duties of his grade and
rating, he was not afforded a proper medical evaluation to determine if he
met retention standards.  There is insufficient medical evidence for the
Board to determine if the applicant did or did not meet retention standards
at the time he was improperly discharged under the ELS regulation for not
meeting procurement standards.

6.  Therefore, it is appropriate to have the Commander, Human Resources
Command (HRC), St. Louis offer the applicant the opportunity to undergo a
military medical examination, to include examination by military medical
specialists if necessary.

7.  If the individual concerned accepts this offer, then the Commander,
HRC, St. Louis should coordinate this medical examination and publish and
fund appropriate travel orders to accomplish this evaluation.

8.  Upon completion of the medical examination the Commander, HRC,
St. Louis should ensure proper finalization of the case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

__MJF___  __DJP__  __ENA__  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 having the Commander, HRC, St. Louis:

      a.  offer the applicant the opportunity to undergo a military medical
examination, to include examination by military medical specialists if
necessary;

      b.  coordinate this medical examination, if the individual concerned
accepts this offer, and publish and fund appropriate travel orders to
accomplish this medical examination; and

      c.  ensure, upon completion of the medical examination, that the case
is properly finalized under the appropriate regulations.

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
showing he was discharged on 27 June 2005 by reason of physical disability.




                                  _       Eric N. Andersen________
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050010076                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060706                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |Grant Partial                           |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |108                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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