MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            17 June 1999                  
	DOCKET NUMBER:   AR1998014362

	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	
	Mr. Lee Cates		Analyst	

  The following members, a quorum, were present:

	Ms. Jennifer L. Prater		Chairperson	
	Mr. Thomas A. Pagan		Member	
	Mr. Ernest W. Lutz, Jr.		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: In effect, that his records be corrected to show that his separation was based on a physical disability.

APPLICANT STATES: That he received improper treatment to correct a right knee problem.  He provides 122 pages of copies of military records, a letter of support, and a detailed explanation history of his medical problem.  The applicant also indicates that he has contacted the United Latin American Citizens, the Mexican American Legal Defense and Educational Fund, the National council of La Raza, and the US Army Claims Service.  

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

On 6 May 1986, the applicant enlisted in the Army.  He completed his required training and was awarded military occupational specialty 63B (Light Wheeled Vehicle Mechanic).  He was advanced to pay grade E-4 effective 1 January 1988.

On 18 September 1991, the applicant sustained an injury to his right knee.

On 30 September 1991, an acute tear of the right cruciate ligament (an internal stabilizing ligament of the knee) was diagnosed.  The applicant suffered moderate disability during the next 2 years as shown by his multiple physical profiles.

On 15 September 1993, his torn ligament was surgically repaired.

On 30 November 1993, medical records show that he was doing well.  He stated he was running 2 ½ to 3 miles.  He had full range of motion.

Medical records show that on 13 January 1994 his physical profile was 111121B.

On 15 March 1994, he was awarded the Army Commendation Medal for meritorious service in the performance of his assigned duties (Vehicle Mechanic).

There is nothing in the available records of a separation physical examination being performed prior to his separation.

On 1 May 1994, he was honorably separated under Army Regulation 635-200, paragraph 16-8, based on the Early Release Program – Special Separation Benefits.  He was assigned to the Army Reserve Control Group the following day.

He voluntarily served in active Reserve units.  He was released from his units of assignment because of unsatisfactory participation.  His Reserve service obligation termination date was 1 May 1997.
On 3 August 1995, Army Reserve records show his physical profile as 111121B, the same as immediately prior to separation from active duty.

On 5 February 1999, the Department of Veterans Affairs (VA) provided the applicant’s case file, which consisted of copies of military records only.  There are no VA records to support his claim of further examinations.

On 9 April 1999, the Medical Advisor, Army Review Boards Agency opined (COPY ATTACHED) that there is a possibility that the right knee difficulties led to a development of pain in the left knee.  The applicant should have been referred to the Disability Evaluation System.

On 22 April 1999, the Physical Disability Agency reviewed the records and found no evidence of error or injustice.  Denial of the applicant’s request was recommended (COPY ATTACHED).

On 4 May 1999, the applicant was furnished the above opinions for acknowledgement and rebuttal.  He did not respond.

Army Regulation 40-501(Standards of Medical Fitness) indicates in pertinent part that a 2 under E (vision – eyes) is a “distant visual acuity correctable to 20/40 from 20-70, 20-30 from 20-100, and 20-20 from 20-400”.  The code B indicates the soldier “may have assignment limitations, which are intended to protect against further physical damage/injury.  Combat fit.  May have minor impairment under one or more PULHES factors, which disqualify for certain MOS training or assignment.”

Army Regulation 40-501, at paragraph 3-3a, provides, in pertinent part, that performance of duty despite impairment would be considered presumptive evidence of physical fitness. 

Army Regulation 635-40, paragraph 2-2b, as amended, provides that when a member is being separated by reason other than physical disability, their continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that they were unable to perform their duties 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.

Army Regulation 635-200 indicates in pertinent part that eligibility for separation under the Early Release Program with Special Separation Benefits are that the individual make voluntarily application and that they are fully retention qualified.

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

Title 38, United States Code, sections 310 and 331, permits the Department of Veterans Affairs (VA) to award compensation for a medical condition, which was incurred in or aggravated by active military service.  The VA, however, in not required b law to determine medical unfitness or 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 medial 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.

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(s), it is concluded:

1.  The evidence in this case does not support his contention that there was an error or injustice in his separation from active duty.

2.  The medical evidence of record indicates that the applicant was medically fit for retention at the time of his separation.  He has submitted no probative medical evidenced to the contrary.

3.  Separation under the Early Release Program was voluntarily and required that a soldier be completely qualified for retention on active duty.

4.  The applicant’s continued performance of duty raised a presumption of fitness, which he has not overcome by evidence of any unfitting, acute, grave illness or injury concomitant with his separation.

5.  In the absence of medical evidence to the contrary, it is presumed that the available service records are correct as presently constituted.

6.  Since the applicant’s medical condition was not medically unfitting for retention at the time in accordance with Army Regulation 40-501, there was no basis for medical retirement or separation.

7.  The VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings.  Information received from the VA indicates no examinations have been conducted by that agency.
8.  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.

9.  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

jlp______  tap______  ewl_____ DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1998014362	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	1999 June 17	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	19940501	
DISCHARGE AUTHORITY	AR 635-200	
DISCHARGE REASON	Early Release Program w/Spec Sep Benefits	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.108	Disability Separation/retirement	
2.		
3.		
4.		
5.		
6.