RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        26 SEPTEMBER 2006
      DOCKET NUMBER:  AR20050017961


      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. Rene’ R. Parker               |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Marla Troup                   |     |Chairperson          |
|     |Mr. Chester Damian                |     |Member               |
|     |Mr. Edward 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, in effect, that he be reenlisted into the Army
or as an alternative, his disability rating be increased from 20 percent to
at least 30 percent.

2.  The applicant states, through his attorney, that he was placed on the
Temporary Disability Retired List (TDRL) because of his heart condition
which was previously rated as unfitting for service.  Thereafter, the
Department of the Army determined that his heart condition was nonratable
and took him off the TDRL.  The attorney argues that under Title 10, the
United States Code, Section 1211, the applicant is required to reenlist.
He justifies this statement by quoting a court case where an individual on
the TDRL was found fit to return to duty and “Congress mandated that he
shall be reenlisted.”  The attorney further explains his argument by
stating if the applicant’s heart condition is not ratable and his prior
injuries to his back and knee did not previously prevent him from remaining
in the Army, then the Army is required to reenlist the applicant.

3.  The attorney states that the applicant’s knee injury originally
occurred as a result of an accident in basic training over twenty years ago
and has since been re-injured.  The attorney said the Army has allowed the
applicant to perform an alternate physical fitness test and therefore, can
not use his knee injury as a basis for discharge.  Additionally, the
attorney states the applicant’s back injuries were also in the line of duty
and occurred over twenty years ago and should not be used as a vehicle to
force him out of the military.

4.  The attorney maintains that the Army has failed to state adequate
grounds for denying the applicant’s request to increase his disability
rating.  He argues that the applicant has a heart condition and even though
he is on medication it does not negate the fact that he has suffered with a
condition in the performance of his duties to his country.  The attorney
also maintains that the applicant’s previous line of duty back injuries
must be considered in establishing his disability rating.

5.  The applicant provides his Medical Evaluation Board (MEB) and Physical
Evaluation Board (PEB) Proceedings.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show he enlisted in the Regular Army on 14
August 1985.  He served 1 year, 11 months and 30 days and was discharged on
            8 August 1987.  The applicant enlisted in the United States
Army Reserve (USAR) on 11 September 1987.
2.  The applicant’s military records show that a Line of Duty (LOD)
investigation was conducted on 31 May 1991.  The DA Form 2173 (Statement of
Medical Examination and Duty Status) show that the applicant was seen as an
outpatient and had a previous history of knee injury (1987) which was
aggravated by being thrown from a horse in February 1990 while on active
duty in Germany.  The form also shows the applicant had low back pain.  The
applicant’s injury was considered to have been incurred in the line of
duty.  The LOD was reviewed for completeness on 2 June 1991.

3.  On 26 June 1999 the applicant was seen as an outpatient at Kimbrough
Army Medical Hospital, Fort George G. Meade, Maryland.  The DA Form 2173
shows that the injury occurred while the applicant was performing a make-up
Army Physical Fitness Test.  He twisted his left knee after walking
approximately 7 1/2 laps of his 2 1/2 mile walk.  The injury was considered
to have been in the LOD.

4.  On 10 September 2000 the applicant was seen as an outpatient at the
Greenbrier Medical Center, Lewisburg, West Virginia.  The DA Form 2173
shows that the applicant twisted his knee while playing football during
physical training. The injury was considered to have been in the LOD.

5.  On 24 April 2001 the applicant underwent a MEB.  His chief complaint
was recorded as post anterior cruciate ligament reconstruction, right knee,
chronic low back, and atrial fibrillation and flutter.  The MEB found the
applicant’s right knee and atrial fibrillation and flutter were medically
unacceptable and his chronic low back pain was considered medically
acceptable.  The physician conducting the physical examination provided a
history of the applicant’s illness.  The physician stated that the
applicant initially injured his right knee in August 1985 while on active
duty and participating in Basic Training.  He fell approximately 65 feet
from a repelling tower and twisted his right knee and injured his back.  In
1987 the applicant underwent an open medial meniscctomy at the Veterans
Affairs (VA) Medical Center.  The applicant was activated for Desert Storm
in 1990 and while serving in Germany as a mounted policeman, he fell from
his horse and re-injured his right knee and back.  In 1996, he was recalled
to active duty and while moving a wall locker he injured his back.  A MRI
was conducted and the applicant was told that he had three bulging disks in
his lower back; surgery was not recommended.

6.  The physician stated that in September 2000, while on individual drill,
the applicant was participating in physical training and playing football
when he twisted his right knee.  The following month, the applicant
underwent anterior cruciate ligament reconstruction surgery conducted by an
orthopedic surgeon.  Immediately postoperatively, he developed atrial
fibrillation and flutter.  He was evaluated by a cardiologist and
hospitalized for eight days.  He had radial ablation which eliminated the
atrial flutter but, he continued to have fibrillation and received follow-
up care by a civilian cardiologist.  The physician stated that the
applicant was unfit for retention under provisions of Chapter 3, Army
Regulation 40-501 and referred him to a PEB.  The applicant agreed with the
MEB findings and recommendations.

7.  The applicant did not provide a copy of his first PEB proceedings and a
copy was not contained in his records.  However, a corrected copy of Orders
D6-12, dated 9 January 2002, shows that the applicant was released from
duty because of physical disability incurred as a result of injury and
placed on the TDRL.  He was placed on the TDRL effective 8 February 2002
with a 30 percent disability rating.

8.  On 22 November 2004, a PEB convened and considered the applicant’s
right knee instability, chronic low back pain and atrial fibrillation and
flutter.  His chronic low back pain and atrial fibrillation and flutter
were listed as medically acceptable.  The board stated that the present PEB
rating of 20 percent more accurately reflects the current degree of
severity of his right knee instability.  The PEB said they considered the
applicant’s condition to have improved so as to be ratable at less than 30
percent.  The board explained that a rating of less than 30 percent for
Soldiers with less than 20 years active service requires separation with
severance pay in lieu of retirement.  The board found that the applicant
was physically unfit and recommended a combined rating of 20 percent and
that the applicant’s disposition be separation with severance pay if
otherwise qualified.

9.  There are no orders and the applicant did not provide any to verify
that he was removed from the TDRL.  However, in the PEB letter to the
applicant, dated 22 November 2004, the board stated that after reviewing
his recent periodic medical examination and other available medical records
the PEB recommended that the applicant’s name be removed from the TDRL.

10.  On 15 December 2004, the applicant indicated that he did not concur
with the findings and recommendation of the PEB and demanded a formal
hearing with personal appearance.

11.  On 23 February 2005, a formal PEB convened and reconsidered the
applicant’s right knee instability.  The applicant appeared before the
board and was represented by the Disabled American Veterans.  There were no
changes made to the original rating of 20 percent.  The findings and
recommendations were the same as in the PEB dated 22 November 2004.

12.  On 23 February 2005 the applicant signed his PEB “Formal Election
Statement of Understanding.”  The applicant’s signature indicated that he
understood that he was authorized 10 days to file an election and a
rebuttal, if applicable.  He further understood if the Washington PEB did
not receive the election rebuttal by 11 March 2005, that it would be
assumed that he concurred with the findings of the formal board and that
his case would be forwarded for final processing.  He also understood that
if an extension was requested that he must coordinate the request for
extension through the PEB Liaison Officer.

13.  On 12 April 2005, the applicant faxed his election form indicating
that he did not concur with the formal PEB proceedings.  The form indicates
that a total of 9 pages were attached.  However, this Board cannot
determine what information and or documentation was attached to his
election statement in response to his nonconcurrence with the PEB
Proceedings.

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.  A Soldier’s name may be placed on the TDRL when it is determined that
the Soldier is qualified for disability retirement under Title 10, United
States Code, Section 1201, but for the fact that his or her disability is
determined not to be of a permanent nature and stable.  Additionally, the
regulation states a Soldier must undergo a periodic 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.
A Soldier will be removed from the TDRL and separated with severance pay if
the Soldier has less than 20 years of service and is unfit because of the
disability for which the Soldier was placed on the TDRL; and either the
disability has stabilized at less than 30 percent; or the disability,
although not stabilized, has improved so as to be ratable at less than 30
percent.

17.  Army Regulation 635-40 states that disability compensation is not an
entitlement acquired by reason of service-incurred illness or injury;
rather, it is provided to Soldiers whose service is interrupted and they
can no longer continue to reasonably perform because of a physical
disability incurred or aggravated in service.

18.  Title 10, United States Code, Section 1201, 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.

19.  Title 10, United States Code, Section 1202, provides for the placement
of a member on the Temporary Disability Retired List when the disability
may be permanent.  Placement on the Temporary Disability Retired List
requires that the member meet the criteria of Title 10, United States Code,
Section 1201.

20.  Title 10, United States Code, Section 1211, provides that with his
consent, any enlisted member of a regular component of the Army whose name
is on the Temporary Disability Retired List, and who is found to be
physically fit to perform the duties of his office, grade, or rank be
reenlisted in the regular grade held by him when his name was placed on the
Temporary Disability Retired List or in the next higher regular enlisted
grade.

21.  Title 38, United States Code, Sections 1110 and 1131, permits the VA
to award compensation for a medical condition which was incurred in or
aggravated by active military service.  The VA, however, is not required by
law to determine medical unfitness for further military service.  The VA,
in accordance with its own policies and regulations, awards compensation
solely on the basis that a medical condition exists and that said medical
condition reduces or impairs the social or industrial adaptability of the
individual concerned.  Consequently, due to the two concepts involved, an
individual's medical condition, although not considered medically unfitting
for military service at the time of processing for separation, discharge or
retirement, may be sufficient to qualify the individual for VA benefits
based on an evaluation by that agency.



DISCUSSION AND CONCLUSIONS:

1.  The applicant's medical records substantiate his claim that he suffered
with knee problems, chronic back pain and atrial fibrillation and flutter.
The MEB, dated April 2001, stated that the applicant's knee problems and
atrial fibrillation were considered medically unacceptable.  However, his
chronic back pain was considered medically acceptable.  The applicant was
referred to a PEB.

2.  Although the initial PEB Proceedings were not available to the Board
for review, the orders dated 9 January 2002, verifies that the applicant
received a 30 percent disability rating and was placed on the TDRL on 8
February 2002 based solely on his knee condition.  Subsequently, in
February 2005 he was reevaluated by the PEB for right knee instability and
the board determined that a rating of 20 percent more accurately reflected
his degree of severity.  The PEB determined that the applicant’s chronic
back pain and atrial fibrillation were medically acceptable.  The applicant
was removed from the TDRL.

3.  It is noted that the applicant’s medical condition underwent numerous
reviews by a MEB, PEB, and a formal PEB in which he was present and
represented by the Disabled American Veterans.  His rebuttal to the PEB and
formal PEB were also reviewed.  Those reviews considered all medical
evidence provided and determined that the applicant’s chronic back pain and
atrial fibrillation and flutter were medically acceptable.  However, the
PEB found that the applicant’s right knee injury was unacceptable and rated
him accordingly.  The findings of those reviews are accepted.

4.  The Army rates only conditions which are determined to be physically
unfitting for further military service thereby compensating the individual
for the loss of his or her military career.  The medical evidence of record
supports the determination that the applicant's unfitting condition was
properly diagnosed and rated at the time of his discharge.

5.  Evidence of record further shows that the applicant’s medical condition
originally placed him on the TDRL; however, after reevaluation the
applicant received a 20 percent disability rating for his right knee and
since he had completed less than 20 years of service, he was removed from
the TDRL.  The applicant’s attorney argues that the applicant should have
been allowed to reenlist in accordance with United States Code, Section
1211.  However this section applies to Soldiers who are found to be
physically fit.  Therefore, his separation with severance pay was in
compliance with law and regulation.

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 that requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___MT __  __CD ___  ___EM __  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.





                                  ______ Marla Troup_________
                                            CHAIRPERSON


INDEX

|CASE ID                 |AR20050017961                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060926                                |
|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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