RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:      21 December 2006
      DOCKET NUMBER:  AR20060006526


      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. Peter B. Fisher               |     |Chairperson          |
|     |Mr. Thomas M. Ray                 |     |Member               |
|     |Mr. Jeffrey C. Redmann            |     |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 honorable discharge be
rescinded and that he be medically retired with a minimum 30 percent
permanent physical disability rating.

2.  The applicant states, in effect, that he wants to receive a minimum
physical disability rating of at least 30 percent and be permanently
retired.

3.  The applicant provides several memorandums and a copy of his separation
orders in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he enlisted in the Regular Army
on 10 February 1993. The applicant successfully completed basic combat
training at Fort Knox, Kentucky, and advanced individual training at Fort
Huachuca, Arizona.  On completion of his advanced training, he was awarded
the military occupational specialty (MOS), 96R, Ground Surveillance Systems
Operator.  He was advanced to pay grade E-4 effective 10 April 1995.

2.  The applicant's records contain a copy of a Standard Form 600
(Chronological Record of Medical Care).  It states that the applicant had a
history of knee pain since March 1993.

3.  The applicant underwent arthroscopy surgery on 1 February 1994.  He was
diagnosed as having medial meniscus tear, left knee.  He was issued a
temporary profile on 6 April 1994 with an expiration date of 21 May 1994.

4.  The applicant was issued a permanent profile of 112111, on 14 April
1995, due to left knee pain chronic chondromalacia patella.  His assignment
limitations were to run at own pace and distance and not to run in
formation.  His APFT (Army Physical Fitness Test) consisted of the push-
ups, sit-ups, and the alternate aerobic event of the walk, swim, or
bicycle.  It indicated that he must pass the APFT.

5.  The applicant continued to serve until he was honorably released from
active duty on 9 February 1997.  He was transferred to the U.S. Army
Reserve (USAR) Control Group (Reinforcement).
6.  The applicant enlisted in the USAR on 9 December 2000, for training as
a ground surveillance systems operator, in MOS, 96R, in pay grade E-4.

7. The applicant was issued a permanent profile of 113111, on 4 October
2004, due to left knee pain condition, degenerative joint disease, knee
surgery (times two), and chronic pain and limitations.  His assignment
limitations were to walk one-half mile in boots, one-quarter mile with
field gear, and zero miles with ruck, and lift and carry 40 pounds for 100
feet.  He failed to meet retention standards in accordance with Army
Regulation 40-501.  His APFT consisted of the push-ups, sit-ups, and an
alternate APFT swim event.

8.  On 8 July 2005, the Command Surgeon, U.S. Army Human Resources
Command (ARHC)-St. Louis, prepared a memorandum for the applicant,
Subject:  Notification of Medical Disqualification, with a suspense date
of 24 July 2005.  The surgeon stated that a recent review of available
medical records had revealed one or more medical conditions that
disqualified him for retention in the USAR. The conditions under
consideration were:  (a) Left Knee Condition, Degenerative Joint Disease;
and (b) Chronic Pain.  He was provided three options for disposition of
his case which included:  (a) an election to transfer to the Retired
Reserve if eligible with 20 qualifying years of service; (b) elect to be
discharged; and (c) elect consideration of his case by a Non-Duty Related
PEB (NDR-PEB).  He was advised the NDR-PEB purview was limited.  It could
not award disability compensation.

9.  The applicant elected consideration of his case by a NDR-PEB, which
would only render a fitness determination.

10.  On 15 August 2005, the Patient Administration Officer, AHRC, prepared
a memorandum for the applicant, Subject:  NDR-PEB Fitness Determination.
The applicant was informed that his request had been received by the
Surgeon's office.  A review of the applicable regulation found that he had
a disqualifying medical condition and his records would be forwarded to the
appropriate PEB for a fitness determination.  He was informed that he would
not be discharged or separated while his case was being processed through
the NDR-PEB unless approved personally by the separation authority.

11.  On 23 September 2005, the applicant appeared before a PEB, at Fort Sam
Houston, Texas.  The PEB indicated that the applicant was unfit.  His knee
pain and the degenerative joint disease of his knee restricted numerous
Soldierly activities required of his MOS and grade.  His profile was
incompatible with continued military service.  The membership of the PEB
included a voting
member from the Reserve Component (RC).  The PEB found the applicant was
physically unfit and referred his case for disposition under RC
regulations. The applicant concurred with the PEB recommendations and
waived a formal hearing of his case on 28 September 2005.

12.  On 23 September 2005, the Personnel Management Officer (PMO), PEB,
Fort Sam Houston, Texas, prepared a memorandum for the applicant, Subject
PEB Recommendation for Non-Duty Related Case.  The PMO informed the
applicant that the PEB had completed its fitness for duty evaluation of his
case.

13.  On 7 October 2005, the Senior Patient Administration Advisor, AHRC-St.
Louis, prepared a memorandum for the applicant, Subject:  Non-Duty Related
PEB (NDR-PEB) Finding – Unfit for Duty.  The advisor indicated that the PEB
had determined he was unfit for duty.  Based on this PEB finding, he was
permanently medically disqualified and must be separated from the USAR.

14.  The applicant continued to serve until he was honorably discharged on
12 October 2005, under the provisions of Army Regulation 135-178, in the
rank of SPC.

15.  The applicant provides a copy of his VA Rating Decision, dated 8
January 2004.  It shows that his evaluation of degenerative joint disease,
left knee, which was 0 percent disabling was increased to 30 percent
effective 9 January 2003.

16.  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 medical evaluation board determines the Soldier does not
meet retention standards, the board will recommend referral of the Soldier
to a physical evaluation board.

17.  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.

18.  Army Regulation 40-501 governs medical fitness standards for
induction, enlistment, appointment, retention, separation, retirement,
officer procurement programs, and related policies and procedures.  Chapter
3 lists the various medical conditions and physical defects that may render
a Soldier unfit for further military service.

19.  Paragraph 3-13, of Army Regulation 40-501, covers lower extremities.
Subparagraph 3-13c states that conditions of internal derangement of the
knee,  with residual instability following remedial measures, of more than
moderate in degree, is a cause for referral to an MEB.  Paragraph 3-14
covers miscellaneous conditions of the extremities.  Subparagraph 3-14b
states that extremities such as, arthritis due to trauma, when surgical
treatment fails or is contraindicated and there is functional impairment of
the involved joints so as to preclude the satisfactory performance of duty,
is a cause for referral to an MEB.

20.  Chapter 9 pertains to Army Reserve Medical Examination.  Paragraph 9-
10, states that Reservists who do not meet the fitness standards under
chapter 3 will be transferred to the Retire Reserve or discharged.
Reservists who do not meet medical retention standard may request
continuance in an active status.

21.  Army Regulation 135-178 establishes the policies, standards, and
procedures governing the administrative separation of enlisted Soldiers
from the Reserve Components.  Paragraph 1-3 states, in pertinent part, that
orders discharging a Soldier would not be revoked or the effective date
changed after the effective date of discharge unless there was evidence of
manifest error or fraud.  After the effective date of discharge, orders can
be amended by the separation authority only to correct manifest error such
as the wrong character of service or to correct administrative errors such
as rank, social security number, or misspelled name.

22.  Army Regulation 135-178, paragraph 12-1, states, in pertinent part,
that reserve enlisted soldiers who are no longer qualified for retention by
reason of medical unfitness under the standards of AR 40-501, chapter 3
(Medical Fitness Standards for Retention and Separation Including
Retirement), will be discharged unless they are granted a waiver of the
medical disqualification or are eligible and request transfer to the
Retired Reserve under Army Regulation 140-10, paragraph 6.1
23.  Department of Defense Instruction (DODI) 1332.38 implements policy,
assigns responsibilities, and prescribes procedures under DODI 1332.18 for
retiring or separating service members because of physical disability;
making administrative determinations for member with service incurred or
aggravated conditions; and authorizing a fitness determination for members
of the Ready Reserve who are ineligible for benefits under Title 10, USC
because the condition is unrelated to military status and duty.

24.  Title 10, US Code, chapter 61, provides for the disability retirement
or separation of a member who is physically unfit to perform the duties of
his/her office, rank, grade, or rating because of a disability incurred
while entitled to basic pay.

25.  Title 10, US Code, section 1201, provides for the physical disability
retirement of an unfit member who has at least 20 years of service or a
disability rating of at least 30 percent.

26.  An award of a VA rating does not establish entitlement to medical
retirement or separation from the Army.  Operating under its own policies
and regulations, the VA, which has neither the authority nor the
responsibility for determining medical unfitness for military duty, awards
ratings because a medical condition is related to service ("service-
connected") and affects the individual's civilian employability.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant underwent arthroscopy
surgery on 1 February 1994 and was issued a temporary profile.  He was
later issued a permanent profile due to a medial meniscus tear, left knee.
He continued to serve until he was honorably released from active duty on
9 February 1997.  He was transferred to the USAR.

2.  The applicant enlisted in the USAR and was issued another permanent
profile due to left knee pain condition, degenerative joint disease, knee
surgery X2, and chronic pain.  He was notified by the command surgeon of
his medical disqualification for retention in the USAR.  He was provided
three options for disposition of his case.  He elected consideration of his
case by a NDR-PEB which was limited.  The NDR-PEB could not award
disability compensation.

3.  The applicant appeared before a PEB which found him physically unfit
for duty.  His condition restricted him from numerous Soldierly activities
required of
his MOS and grade.  His profile was incompatible with continued military
service. The case was referred PEB for disposition under RC regulations.
He concurred with the PEB and waived a formal hearing of his case.

4.  The applicant was found to be permanently and medically disqualified
for retention and a determination was made that he must be separated from
the USAR.  He was honorably discharged on 12 October 2005, under the
provisions of Army Regulation 135-178, in pay grade E-4, without
compensation.  He was not entitled to compensation based on regulatory
authority.  Therefore, he is not entitled to correction of his records to
rescind his discharge and medically retire him with a minimum 30 percent
permanent physical disability rating.

5.  The evidence shows that the applicant applied to VA for a service-
connected disability while a member of the USAR.  He was granted 30 percent
disability for his service connected conditions.

6.  In accordance with governing laws, the VA is the Department responsible
for compensating veterans when service related conditions cause social or
industrial impairment after a Soldier's discharge.

7.  Any rating action by the VA does not necessarily demonstrate error or
injustice on the part of the Army.  The VA, operating under its own
policies and regulation, assigns disability ratings as it sees fit.

8.  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

__PBF___  __JCR__  _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.




                                  ___  _Peter B. Fisher_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060006526                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061221                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |108                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |

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