IN THE CASE OF:	

		BOARD DATE:	20 April 2010  

		DOCKET NUMBER:  AR20090011322 


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, that he be found fit enough to be reinstated in the U.S. Army Reserve (USAR) to complete 20 years or in the alternative that he be found unfit for consideration of his medical condition by a Medical Evaluation Board (MEB). 

2.  The applicant states, in effect, that he was discharged with 15 years of active duty service and was never given the option to appear before an MEB.  He applied for medical exemption due to his knees and was awarded a 40 percent (20 percent for laxity of his left knee and 10 percent for patellofemoral pain syndrome on his right knee) service-connected disability from the Department of Veterans Affairs (VA).  In August 2005, he reenlisted to complete his 20 years for retirement.  At the time his knee pain did not bother him to the extent it does now. In November 2006, he was promoted to a supervisory position for his federal civilian position.  Due to the increasing difficulty of the physical demands and his desire to complete his 20 years he requested to be transferred to the Individual Ready Reserve (IRR) under the provision of being a key essential federal employee.  

3.  The applicant also states that throughout 2006, his knee pain increased in severity and he could no longer keep up with the physical demands of the Reserves.  He was given a P2 profile in October 2007.  In March 2008, his knee pain had increased in severity and frequency and he filed a claim for a disability increase for his knees and associated back pain with the VA.  When he received orders for deployment to Iraq, he knew that he would not be able to withstand the physical demand of a deployment environment with the severity and frequency of pain.  He applied for a medical exemption due to his knees.  When he was ordered to be discharged he does not feel any consideration was given to the fact that his knee conditions were due to his military service and he was not evaluated by an MEB.  As of August 2008, he had served for 17 years, 11 months, and 18 days of net service. 

4.  In support of his application, the applicant provides copies of his VA service-connected disability rating, a Standard Form 507 (Clinical Record), a Request for Profile, his DA Form 3349 (Physical Profile), his Compensation and Pension Evaluation Examination Progress Notes, letters from his legal counsel, and his Olympia Orthopaedic Associates Medical Records History.  

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military records show he enlisted in the Delayed Entry Program on 27 June 1989.  He enlisted in the Regular Army in pay grade E-2 on 13 June 1990.  He completed training and was assigned military occupational specialty (MOS) 15Q, Air Traffic Control Operator.  He served continuously through several reenlistments until his honorable separation in pay grade E-6 on 31 May 2005, for completion of the required active service.  He was credited with 14 years, 11 months, and 18 days of net active service.  He enlisted in the USAR on 23 August 2005, for 6 years.  

2.  The applicant submitted a copy of a letter from the VA, dated 11 April 2006, wherein he was awarded a 40 percent service-connected disability compensation.  

3.  On 10 October 2007, the applicant was given a physical profile with a PULHES profile of 112111 for bilateral knee pain.  He was given assignment limitations and the profile was determined to be permanent.  The profile was approved on the same date.  No entry was marked for the need of a Medical Retention Board (MMRB), MEB, or Physical Evaluation Board (PEB).   

4.  There is no evidence the applicant was referred to an MEB or PEB for consideration of bilateral knee pain or that a line of duty determination was made for this condition during his period of active Reserve service.

5.  On 6 April 2008, the applicant requested that his right knee be reevaluated by the VA because his pain had worsened and everyday events were difficult, consideration for service connection for scars from the removal of moles, and service connection consideration for back pain as a result of his knee pain because of standing and a change in his walk.  

6.  The applicant further submitted a copy of his Left Knee X-Ray Series, dated 27 June 2008, that stated the x-ray findings were:  no fracture, dislocation, no osseous destructive lesion, and no joint effusion.  He also submitted copies of his Compensation and Pension Evaluation Examination Progress Notes, dated 14 August 2008, that show he had been diagnosed with keloid scars on the abdomen; thoracolumbar with decreased range of motion and pain; and bilateral knee retropatellar pain syndrome, right worse than left.  The medical doctor opined that the applicant’s right knee condition was related to his knee condition he had while on active duty and his current back condition was less likely than not related to any condition he had in the military and not secondary to his knee condition. 

7.  In letters, dated 16, 17, and 19 September 2008, the applicant’s counsel stated he was representing the applicant for the purpose of a disability hearing before a PEB. 

8.  On 4 September 2008, Orders M-09-803801 were issued ordering the applicant to active duty with a report date of 4 January 2009.  

9.  On 25 February 2009, the applicant was advised that his request for exemption from active duty had been approved and his orders for active duty would be revoked.  He was also advised that based on his exemption request he would be discharged in accordance with Army Regulation 601-25 (Delay in Reporting for and Exemption from Active Duty, Initial Active Duty for Training, and Reserve Forces Duty), paragraph 4-11.  

10.  On 7 April 2009, orders were issued revoking the applicant’s call to active duty.

11.  The applicant was honorably discharged from the USAR in pay grade E-7 on 30 April 2009, under the provisions of Army Regulation 135-178 (Army National Guard and USAR Enlisted Administrative Separations).

12.  The applicant Chronological Statement of Retirement Points, dated 13 January 2010, shows he was credited with 17 years, 11 months, and 18 days creditable service for retired pay as of 30 April 2009.  

13.  On 14 January 2010, a staff member of the Delay and Exemption Team, Human Resources Command, St. Louis, Missouri, advised that on 9 September 2008, the applicant applied for an exemption from mobilization.  The applicant stated he was requesting an exemption based on him being in a key employee position and his medical conditions.  He sent in paperwork showing he had been awarded a 40 percent disability from the VA which he was presently collecting.
14.  Army Regulation 601-25, paragraph 4-11, specifies that a member approved for exemption from entry on active duty must be removed from current status.  An non-obligated member will be discharged unless the member is eligible and elects transfer to the Retired Reserve.  An obligated member will be transferred to the USAR Control Group (Standby-Ineligible).  A board may recommend that an obligated member be discharged.  

15.  Army Regulation 135-178 prescribes the policies and procedures for administrative separation of Reserve Components enlisted Soldiers for a variety of reasons.  Paragraph 1-9 specifies that when it has been determined that a Soldier being processed for administrative separation does not meet the medical fitness standards for retention the medical treatment facility commander or attending medical officer will refer to an MEB.  The administrative separation proceedings will continue, but final action by the separation authority will not be taken pending the results of the MEB.  Paragraph 6-7(e) specifies that when a commander determines that a Soldier may have a medical condition that interferes with the Soldier’s performance of duty and contemplates initiation of separation, the commander will refer the Soldier for a medical evaluation.

16.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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 MEBs, 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 Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.  

17.  Army Regulation 40-501, chapter 3, provides that, for the separation of an individual found to be unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.  Members with conditions, as listed in this chapter, are considered medically unfit for retention on active duty and are referred for disability processing.  

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

19.  Title 10, U.S. Code, section 1201 provides for the physical disability retirement of a member who has at least 20 years of active service or a disability rate at least 30 percent.  
20.  Title 38, U.S. Code, sections 1110 and 1131, permit the DVA to award compensation for disabilities which were incurred in or aggravated by active military service.  The DVA has neither the authority nor the responsibility for determining physical fitness for the military service.  It awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability.  

21.  Title 38, U.S. Code, section 5304 states that, except to the extent that retirement pay is waived under other provisions of law, not more than one award of pension, compensation, or reserve retirement pay shall be made concurrently to any person based on such person’s own service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions have been noted; however, his records are void of the results of any medical records or evaluations for his knees during his period of service.  He asks for two mutually exclusive findings -- that he be either found fit enough to be reinstated in the USAR or be found so unfit that he should have been referred to an MEB.

2.  The evidence shows the applicant enlisted in the Regular Army on 13 June 1990 and was separated on 31 May 2005.  He enlisted in the USAR on 23 August 2005.  In April 2006, he was awarded a 40 percent service-connected disability rating by the DVA.  On 10 October 2007, he was given a permanent profile for bilateral knee pain.  It appears that in 2007, he requested to be transferred to the IRR.  He received a profile for his knee in 2007, but no determination was made that he was unfit for retention.  There is no evidence to show he needed an MMRB, MEB, or PEB.  

3.  In 2008, the applicant applied for a medical exemption from mobilization due to his knees.  His request was approved on 25 February 2009 and as a result of the circumstances of his exemption request he was advised he must be discharged from the USAR.  At that time, he had the option of choosing to be medically discharged without an MEB, get a line of duty determination and proceed to an MEB, or undergo a non line of duty PEB.  He elected to be discharged without an MEB and was discharged from the USAR on 30 April 2009.  He chose not to undergo a fitness evaluation and has provided insufficient evidence to show he met the criteria to undergo MEB/PEB proceedings.  

4.  In the absence of sufficient evidence to the contrary, it is presumed that the applicant was properly separated from the USAR.  His contentions and submitted documents do not demonstrate error or injustice in the reason for his separation, nor error or injustice in the disposition of his case by his separation from the service.  

5.  The DVA documentation provided by the applicant with his application was also carefully considered.  However, the award of a DVA rating or an increase of a DVA rating does not establish entitlement to a referral to an MEB for disability processing.  Operating under its own policies and regulations, the DVA awards ratings because a medical condition is related to service, i.e., service-connected. In this case, the applicant was properly evaluated and is being compensated for his service-connected medical conditions by the DVA.  It is also noted that the documents provided only show he was awarded a 40 percent rating and this could well be for a combination of medical conditions and not only his knees.  

6.  In view of the foregoing, there is no basis for granting the applicant’s request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X___  ___X____  ___X____  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.




      _______ _  X _______   ___
               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)                                         AR20090011322





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ABCMR Record of Proceedings (cont)                                         AR20090011322



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