MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:         

	BOARD DATE:           22 March 2000                   
	DOCKET NUMBER:   AR1999026392

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. James M. Alward		Chairperson	
	Mr. Ted S. Kanamine		Member	
	Mr. Arthur A. Omartian		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, physical disability retirement.

APPLICANT STATES:  That he should receive a 30 percent or higher disability rating for his left leg and right knee, and that the rating of 10 percent for his right knee and 10 percent for his left leg was misdiagnosed.

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

The applicant entered on active duty on 27 December 1990 and remained on continuous active duty until his discharge in 1996.  

In a 17 September 1996 message, the Total Army Personnel Command directed that the applicant be discharged because of disability with a disability rating of   20 percent.  He was discharged under the provisions of Army Regulation 635-40, paragraph 4-24b(3), in the pay grade of E-4, on 14 October 1996, at Baumholder, Germany.  He had 5 years, 9 months, and 18 days of service.  He received severance pay of $11, 254.47.

Subsequent to his discharge, the applicant has stated that he had a medical examination in November of 1996, and a doctor indicated that he had a tumor, which had to be present prior to his discharge.  He underwent a biopsy of his right knee in August of 1997, and in September had an operation to remove the tumor; however, he was informed that the tumor had spread.  He was unable to work and lost his job.  He has been unable to work because of his condition.  He has swelling and pain in his right knee and has to wear a knee brace.  He has since lost muscle tissue in his right leg from muscle atrophy and had to get a new off-loading brace.  He has problems going up and down stairs due to pain in his right knee and lower back and his right leg is smaller than his left leg.  He has problems sitting, standing, and weight bearing, and has favored his right leg for so long that he has developed hip problems, and the pain in his lower back has increased.  

A 24 July 1997 MRI indicated a slightly expansile lesion of the medial femoral condyle metaphysis, epiphysis and diametaphysis with slight extension beyond the cortical bone.  That MRI indicated that further diagnostic workup would be necessary.

A 25 September 1997 microscopic exam of his right knee, femoral condyle biopsy, indicated a giant cell tumor.

The records of the applicant’s medical evaluation board (MEBD) and physical evaluation board (PEB) are not available; nor has the applicant submitted any records from the VA to show that he is receiving service connected disability rating.

Army Regulation 635-40 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 medical evaluation boards, 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 AR 40-501, chapter 3.  If the MEBD determines the soldier does not meet retention standards, the board will recommend referral of the soldier to a PEB.

Physical evaluation boards are established to evaluate all cases of physical disability equitability for the soldier and the Army.  It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of soldiers who are referred to the board; to evaluate the physical condition of the soldier against the physical requirements of the soldier’s particular office, grade, rank or rating; to provide a full and fair hearing for the soldier; and to make findings and recommendation to establish eligibility of a soldier to be separated or retired because of physical disability.

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

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

Title 38, United States Code, sections 310 and 331, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service.

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

1.  In the absence of evidence to the contrary, it is presumed that the applicant’s separation with a 20 percent service connected disability is correct.  The applicant has provided no evidence otherwise.  His contentions do not demonstrate error or injustice in the disability rating assigned by the Army, nor error or injustice in the disposition of his case by his separation from the service.

2.  The VA 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, the applicant'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 him for VA benefits based on an evaluation by that agency.

3.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.   

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 the aforementioned requirement.

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

___jma__  ___tsk___  ___aao__  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999026392	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000322	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  177	108.00	
2.		
3.		
4.		
5.		
6.