MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           3 March 1999                   
	DOCKET NUMBER:   AC97-07752
				   AR1998006334

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Edward Williamson		Member	
	Mr. Gary C. Miller		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That his uncharacterized discharge be changed to a disability discharge with benefits.

APPLICANT STATES:  In effect, it was his left knee that was injured prior to his entering service, not his right knee.

EVIDENCE OF RECORD:  The applicant's military records show:

He enlisted in the Regular Army on 2 October 1995.

The applicant injured his right knee in basic training.  On 18 October 1995, a Medical Evaluation Board (MEB) noted that he had complained of right knee pain for the past three years.  He was diagnosed with chronic recurrent knee pain, existed prior to entry in service (EPTS), and it was recommended that he be separated from the service.  The applicant concurred with the findings and recommendation and requested separation for disability.  The appropriate authority approved the recommendation.

On 1 November 1995, the applicant was discharged by reason of disability, EPTS.  His character of service was uncharacterized.

Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability. The unfitness is of such a degree that a soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purpose of his employment on active duty.  Appendix C states that a soldier must have over six months of active duty service to be eligible for severance pay.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  In pertinent part, it states that a separation will be described as an entry level separation with service uncharacterized if processing is initiated while a soldier is in entry level status.

In the processing of this case, an advisory opinion was obtained from the U. S. Army Physical Disability Agency.  The opinion noted that the applicant had indicated to the MEB that he had first injured his right knee in 1992 or 1993.  It noted that the applicant’s two statements from his civilian doctor concerned a left knee injury in 1994 and that in neither letter did that doctor state that he knew that no right knee injury occurred in 1992/1993.  The opinion noted that the applicant was asked several times when the prior injury occurred and each time stated right knee and 2-3 years before, contraindicating a January 1994 left knee injury.  Even if his knee injury were considered not to have been EPTS, he could not have been compensated.  His knee was shown to be a minor injury at that time with good range of motion, no deformities and no evidence of laxity.  He would not have fit any of the rating codes for knees and could only have been rated for pain, at no more than 20 percent, separation with severance pay.  However, as he had less than six months of active duty service, he was not eligible for severance pay.  The opinion was provided to the applicant.  He failed to respond within the given time frame.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion it is concluded:

1.  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 the aforementioned requirement.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  Examination of his right knee indicated no deformities, no evidence of laxity and a good range of motion, but with pain, which prevented the continuation of his basic training activities.

3.  Because the applicant was in an entry level status, the uncharacterized discharge directed and the reasons therefor were appropriate considering all the facts of the case.  

4.  The applicant may apply to the Department of Veterans Affairs to determine his eligibility for VA care.

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

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__RVO___  __EW____  __GCM___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC97-07752/AR1998006334	
SUFFIX		
RECON		
DATE BOARDED	19990303	
TYPE OF DISCHARGE	UNCHAR	
DATE OF DISCHARGE	1995/11/01	
DISCHARGE AUTHORITY	AR 635-40 	
DISCHARGE REASON	A31.00	
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	108.00	
2.		
3.		
4.		
5.		
6.