IN THE CASE OF:	  

		BOARD DATE:	  4 May 2011

		DOCKET NUMBER:  AR20100021573 


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 her discharge from the Puerto Rico Army National Guard (PRARNG) be changed to show she was medically retired.

2.  The applicant states she served on active duty for training from 8 February to 2 June 1995 at Fort Jackson, SC, and Fort Sam Houston, TX.  While at Fort Sam Houston she suffered an accident, becoming disabled, and was returned to her unit in Puerto Rico.  She went to the Department of Veterans Affairs (VA) hospital and received a 30-percent disability rating.  In 1998, she was fired from her duties in the PRARNG due to her medical conditions, but no physical evaluation board (PEB) was completed, thus denying her disability retirement benefits.

3.  The applicant provides:

* results of a line-of-duty investigation
* 17 pages from her military personnel records
* her service medical records
* records from the VA

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  She enlisted in the PRARNG on 9 August 1994.  She was ordered to initial active duty for training effective 8 February 1995.  She completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 71G (Patient Administration Specialist).

3.  She was treated for pain in both of her knees from 24 March to 1 May 1995.

4.  On 12 May 1995, she injured her right knee while running in basic training.  She was seen at the troop medical clinic and issued a "no running" physical profile for 1 week and prescribed Motrin.

5.  While on active duty she did not have any instability or effusion of her knee.  She was released from active duty on 2 June 1995 with a reasonable expectation of complete recovery.

6.  After her return to her PRARNG unit she was issued a temporary (T) physical profile of "2" for her lower extremities for a healed stress fracture.  Limitations included no running or jumping.  The temporary physical profile expired on 25 September 1995.

7.  She was seen again on 26 October 1995 and was issued a "3T" physical profile for status post stress fracture, medial tear, and/or lateral meniscus.  Limitations included no physical training.  The physical profile expired on 25 January 1996.

8.  A magnetic resonance image (MRI) done on 18 December 1995 indicated the non-visualization of the anterior cruciate ligament was worrisome for the presence of chronic complete anterior cruciate ligament (ACL) tear.  She continued to be treated for her right knee condition and on 5 February 1996 she was issued a "2T" physical profile for right knee ACL tear.  Limitations included no running or jumping.  The physical profile expired on 5 April 1996.

9.  On 4 April 1996, she was treated for her ACL tear.  Goals were established to increase stability and strength, decrease pain, and prepare the knee for possible surgery.

10.  On 10 May 1996, she was ordered to annual training from 26 May to 9 June 1996.  There is no record of whether or not she attended this training.

11.  On 16 May 1996, she was issued a "3T" physical profile for an ACL tear.  Limitations included no running and no jumping and the physical profile expired on 15 August 1996.

12.  A Physical Therapy Clinic note, dated 30 August 1996, indicates the applicant called to inform the clinic she was unable to attend follow-up therapy and was unable to schedule an appointment due to unavailability.  She indicated she was 2 weeks pregnant and was advised she would be unable to have surgery if she was pregnant.

13.  On 10 October 1996, she was promoted to specialist/pay grade E-4.

14.  In 1997, an MRI showed she had an ACL tear of her right knee.  Rehabilitation was initiated and she was seen for physical therapy for several months.

15.  On 26 March 1998, she was discharged from the PRARNG and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) by reason of failure to report to the gaining state upon interstate transfer.  On 26 March 1998, she was discharged from the USAR.

16.  Page 1 of a letter from the VA, dated 19 June 2002, shows she was awarded a disability rating of 30 percent for "residuals right knee trauma, status post ACL reconstruction; right knee scar cosmetically disfiguring."

17.  An advisory opinion was received from the National Guard Bureau (NGB).  NGB recommended disapproval of her request.  A review by the NGB Surgeon General's Office found she was afforded all benefits and privileges.

18.  The opinion was forwarded to the applicant for rebuttal and she responded by submitting a copy of her VA Rating Decision, dated 11 January 2011, apparently as a result of an appeal of one or more of her earlier decisions.

	a.  The VA continued her disability rating of 30 percent from 1 November 1998 for recurrent subluxation or lateral instability of the knee which is severe.  Since there is a likelihood of improvement, the assigned evaluation was not considered permanent and was subject to a future review examination.

	b.  The VA also awarded her a disability rating of 10 percent for limitation of motion due to pain.  The flexion range of motion was limited to 120 degrees and more recently to 124 degrees due to pain.  Her limitation of motion did not meet the minimum requirement of 45 degrees of limitation of motion to be compensable.  However, there was painful motion shown, so a minimum compensable rating of 10 percent was assigned.

19.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board (MEB). 
Those members who do not meet medical retention standards will be referred to a physical evaluation board (PEB) for a determination of whether they are able to perform the duties of their grade and military specialty with the medically-disqualifying condition.

20.  Army Regulation 635-40, paragraph 2-2b(1), then in effect, provided that when a member was being separated by reasons other than physical disability, his or her continued performance of assigned duty commensurate with his or her rank or grade until he or she was scheduled for separation or retirement created a presumption that he or she was fit.  This presumption could be overcome only by clear and convincing evidence that he or she was unable to perform his or her duties for a period of time or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

21.  Chapter 7 (Physical Profiling) of Army Regulation 40-501 (Standards of Medical Fitness) provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing and if reclassification action is warranted.  Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES):  P-physical capacity or stamina, U-upper extremities, L-lower extremities, H-hearing and ears, E-eyes, and S-psychiatric.  Numerical designator "1" under all factors indicates an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.  Numerical designators "2" and "3" indicate an individual has a medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military duty.  The individual should receive assignments commensurate with his or her functional capacity.  Numerical designator "4" indicates an individual has one or more medical conditions or physical defects of such severity that performance of military duty must be drastically limited.  The numerical designator "4" does not necessarily mean the individual is unfit because of physical disability as defined in Army Regulation 635-40.

22.  To make a physical profile serial more informative, two modifiers are used:  "P" (permanent) and "T" (temporary).  The "T" modifier indicates the condition necessitating a numerical designator "3" or "4" is considered temporary, the correction or treatment of the condition is medically advisable, and correction will usually result in a higher physical capacity.  In no case will individuals in military status carry a "T" modifier for more than 12 months without positive action being taken either to correct the defect or to effect another appropriate disposition.

23.  Title 38, U.S. Code, 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.  The VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

DISCUSSION AND CONCLUSIONS:

1.  While on active duty she did not have any instability or effusion of her knee.  She was released from active duty with a reasonable expectation of complete recovery.

2.  An MRI taken after she was released from active duty showed a torn ACL.  She was treated conservatively with physical therapy for several months and eventually underwent ACL reconstruction.

3.  The applicant was honorably discharged from the PRARNG by reason of failure to report to the gaining state upon interstate transfer.  There is no evidence the applicant was not medically qualified to perform duty as a Patient Administration Specialist or that she failed to meet retention criteria.  The State Surgeon General did not find she was physically disqualified for continued service in the PRARNG.

4.  Although she received numerous temporary physical profiles due to her knee, there is no evidence she was determined to be unable to perform the duties of her rank or MOS.  Without this determination there would be no reason to refer her to an MEB or for a determination of unfitness by a PEB.

5.  Her condition rated by the VA in 2002 would not have been cause for a medical separation.  The additional 10 percent rating added in 2011 for limited range of motion based on pain also would not have resulted in a finding of unfitness.  Ratings awarded by the VA are a prerogative exercised within the policies of that agency.  The VA does not determine medical unfitness for military service, but only that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. 
The VA evaluates a veteran throughout his or her lifetime, awarding and/or adjusting the percentage of disability of a condition based upon that agency's examinations and findings.  Therefore, a rating awarded by the VA after the applicant was discharged does not, in and of itself, establish physical unfitness for Department of the Army purposes.

6.  In view of the above, there is insufficient basis on which to grant relief in this case.

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 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)                                         AR20100021573



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ABCMR Record of Proceedings (cont)                                         AR20100021573



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