MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           23 January 2001                   
	DOCKET NUMBER:   AR2000041093

	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. Carl W. S. Chun		Director	
	Mr. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Mr. Thomas E. O'Shaughnessy		Member	
	Mr. Walter T. Morrison		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 DA Form 199, Physical Evaluation Board (PEB) Proceedings, be corrected to rate him disabled for loss of function and range of motion in both knees and cervical spine, and neurological losses in his cervical spine and pain in the lumbar spine.

APPLICANT STATES:  That law requires that the PEB apply the rating scheme most beneficial to the soldier.

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

He enlisted in the USAR on 9 February 1977.  He served continuously in the USAR while assigned to Troop Program Units and was promoted to First Sergeant.  On 12 November 1994 he was administratively reduced in grade to  E-7, Sergeant First Class (it would appear that the applicant accepted a reduction in grade to qualify for an Active Guard and Reserve [AGR] tour).  

On 18 November 1999, while on extended active duty in the AGR program, the applicant was determined physically unfit by an informal PEB based on bilateral knee pain with right anterior cruciate ligament deficiency with degenerative joint disease and status post right lateral menisectomy, along with chondromalacia of his left femoral and tibial condyle post lateral menisectomy.  The informal PEB mentioned in its proceedings that the applicant’s range of motion was within normal limits.  The informal PEB determined that the applicant should be rated 10 percent disabled for each knee, giving him a combined rating of 20 percent.  The applicant did not concur with that finding and demanded a formal hearing.

Accordingly, on 28 January 2000 a formal PEB was convened and also determined that the applicant was physically unfit with a recommended disability rating of 20 percent.  The applicant did not concur with that finding either, and submitted a rebuttal.  In that rebuttal he stated that medical examinations had shown that he had a decreased Range of Motion (ROM) of both flexion and extension; that he had a 10-degree loss of extension; that he had an antalgic gait, persistent locking of the knee, and stiff patella mobility; that he has instability in both knees; and that he had radicular symptoms of his right upper extremity in the radial nerve distribution, radiating down to his elbow and forearm with paresthesias of his thumb and dorsum of his fingers.  He adds that since his knee surgery he had to use a brace and splints, and he had been rated 40 percent disabled by the Department of Veterans Affairs (DVA).

The Physical Disability Agency (PDA) considered the applicant’s rebuttal, but determined that the applicant’s limitations of motion were within retention standards and denied the applicant’s appeal.

The applicant’s records do not show whether he has been separated from active duty or not.
Army Regulation 635-40 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.  Those members who do not meet medical retention standards will be referred to a PEB for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.  For example, a noncommissioned officer who receives above average evaluation reports and passes Army Physical Fitness Tests (which have been modified to comply with the individual’s physical profile limitations) after the individual was diagnosed as having the medical disqualification would probably be found to be fit for duty.  The fact that the individual has a medically disqualifying condition does not mandate the person’s separation from the service.  Fitness for duty, within the parameters of the individual’s grade and military specialty, is the determining factor in regards to separation.  If the PEB determines that an individual is physically unfit, it recommends the percentage of disability to be awarded which, in turn, determines whether an individual will be discharged with severance pay or retired.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.    In this regard, the Army rates only conditions determined to be physically unfitting, thus compensating the individual for loss of a career. 

In the processing of this case an advisory opinion was obtained from the Army Review Board Agency (ARBA) Medical Advisor who evaluated the applicant’s medical records, his Medical Evaluation Board (MEB) proceedings, his MEB addendum, both his informal and formal PEB proceedings, and the final action taken on the formal PEB’s findings and recommendations by the PDA.  The Medical Advisor found no error in the Physical Disability Evaluation System which considered the applicant and opines that the applicant’s current physical status is properly reflected in the approved findings of his formal PEB.

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.  While it is understandable that the applicant believes that his limitations in motion, neurological losses, and spine pain should be rated and added to his present percentage of disability, he has not submitted any evidence which would show that those conditions were medically disqualifying or physically unfitting.

2.  Without evidence which would show that the medical conditions in question were both medically disqualifying or physically unfitting, the Board must conclude that they were properly not rated.

3.  The applicant’s contentions were considered by his informal PEB, his formal PEB, the PDA, and the ARBA Medical Advisor, all of whom have verified that he was properly rated.  

4.  Title 38, United States Code, permits the DVA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The DVA, 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 physically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for DVA benefits based on an evaluation by that agency.

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

________  ________  ________  DENY APPLICATION

                                                                Carl W. S. Chun
                                                  Director, Army Board for Correction
                                                               Of Military Records

INDEX

CASE ID	AR2000041093	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010123	
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.	108.04	
2.		
3.		
4.		
5.		
6.