IN THE CASE OF:	  

		BOARD DATE:	        31 July 2008

		DOCKET NUMBER:  AR20080007116


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, physical disability retirement.

2.  The applicant states he was injured in 1996/1997 when he was pinned between two trucks.  He states he suffered injuries to both knees and to his shoulder, all of which required surgery.  In 2005, he was referred to the Physical Disability Evaluation System (PDES) to determine the extend of his disabilities and whether or not he was unfit for continued service.

3.  The applicant states he had torn anterior cruciate ligaments (ACL) in both knees, but one was rated at 20% disabling, while the other was rated at 0%.  He also was rated at 0% for his shoulder.  When he appealed, he was assigned an Army lawyer who did not take any interest in his case and demonstrated incompetence.

4.  The applicant provides no additional documents with his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant served in the Regular Army from 28 November 1989 through 6 April 2005, a period of 15 years, 4 months, and 9 days.  At separation, he was a sergeant (SGT/E-5) serving in military occupational specialty (MOS) 52C (Utility Equipment Repairer).  His DD Form 214 (Certificate of Release or Discharge From Active Duty) shows he was separated under the provisions of Army Regulation 635-40, paragraph 4-24B(3) by reason of "DISABILITY, SEVERANCE PAY."  He received $58,816.80 in severance pay.

2.  The applicant's service medical records show he suffered a torn right ACL while playing basketball in 1995.  On 1 November 1996, he had knee surgery to repair the torn ACL.

3.  On 18 April 1997, the applicant had surgery to repair an old acromio-clavicular (AC) separation.  A Mumford procedure was performed to excise the left shoulder distal clavicle.

4.  On 22 June 1999, the applicant underwent surgery on his right knee for retropatellar pain.  The following procedures were performed on his right knee:  diagnostic arthroscopy, examination under anesthesia, debridement of synovitis and lateral meniscus tears, debridement of Cyclops lesion, and chondroplasty of chondromalacia of medial patella, medial and lateral femoral condoyles.

5.  The applicant's Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB) documentation is not available with his records.  An MEB Addendum dated 23-26 October 2004 discusses the instability symptoms of the applicant's right knee.

6.  In the processing of this case, an advisory opinion was obtained from the US Army Physical Disability Agency (USAPDA), Walter Reed Army medical Center, Washington, DC.  The USAPDA advised that the applicant's MEB was completed on 21 June 2004 and reported his right knee to be the main problem, "with pain, degenerative joint disease (DJD), and a 2+ Lachman [a test to diagnose an ACL injury of the knee]; moderate laxity."  The left knee and the shoulder were not mentioned as restricting duty performance.

7.  The USAPDA advisory opinion further stated the applicant was given an informal PEB on 22 September 2004 which found him unfit and rated him at 20% for right knee laxity.  His left knee and should conditions were determined to be not unfitting, not compensable.  The informal PEB recommended separation with severance pay.  On 4 January 2005, after consulting with legal counsel, the applicant concurred with the informal PEB findings and waived his right to a formal hearing.  He was separated on 6 April 2005.

8.  The USAPDA stated the PEB correctly rated the applicant's right knee at 20% and correctly found the left knee and shoulder not unfitting.  There was clear laxity in the right knee, but not in the left; there were findings of moderate DJD in the right knee, but only mild signs in the left.  Both the left knee and shoulder had a full range of motion with only occasional pain.

9.  The applicant was provided a copy of the USAPDA advisory opinion and, on 25 June 2008, he responded.  In his response, he stated he had problems with his shoulder even after his surgery.  This required a second surgery before his separation.

10.  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 or her office, rank, grade or rating because of disability incurred while entitled to basic pay.

11.  Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of active service or a disability rated at least 30 percent.

12.  Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has less than 20 years active service and a disability rated at less than 30 percent.

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the PDES 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 or her office, grade, rank, or rating.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  Separation by reason of disability requires processing through the PDES.

14.  Chapter 4 of the AR 635-40 contains guidance on processing through the PDES, which includes the convening of a MEB to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  If the MEB determines a Soldier does not meet retention standards, the case will be referred to a PEB.  The PEB evaluates all cases of physical disability equitably for the Soldier and the Army.  It also investigates the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board.  It also evaluates the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating.  Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability.


DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his discharge should be changed to medical disability retirement was carefully considered; however, there is insufficient evidence to show he should have been medically retired by reason of physical disability. 

2.  The medical evidence of record supports the determination that the applicant’s unfitting conditions were properly diagnosed and rated at the time of his discharge.  His separation with severance pay was in compliance with law and regulations.

3.  The applicant's shoulder was thoroughly evaluated during the MEB/PEB processes.  Tests revealed the shoulder to be "nontender to palpations, had a full ROM [range of motion], full strength and intact nerves, and no joint disease evident."

4.  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

__xxx___  __xxx___  __xxx___  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.



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               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080007116



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ABCMR Record of Proceedings (cont)                                         AR20080007116



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