MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           21 August 2001                   
	DOCKET NUMBER:   AR2001058998

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. James E. Vick		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Mr. William D. Barr		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 discharge for physical disability with severance pay be changed to a medical retirement.

APPLICANT STATES:  In effect, that he had a right knee injury with instability when he was in the Army from 1981 – 1984. Surgery is needed now for a joint replacement of the right knee.

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

He enlisted in the Regular Army on 24 April 1980.  He completed basic training and advanced individual training and was awarded military occupational specialty (MOS) 19E (Armor Crewman).  

On 15 December 1981, during field training, the applicant stepped into a hole while running and injured his knee.  He underwent arthrotomy and initial reconstruction of his anterior cruciate.  He initially had fairly good results but, on increase in activity, continued to again experience pain and giving way of the knee.  An evaluation revealed an anterior cruciate deficient knee with rotatory instability.  He was given a derotation brace and started on physical therapy.  He continued to have a feeling of instability. 

In October 1982, the applicant was reclassified into MOS 51R (Interior Electrician) as a result of MOS Reclassification Board proceedings.

In September 1983, the applicant had a second operation for intra-articular reconstruction. 

In 1984, a Medical Evaluation Board (MEB) diagnosed the applicant with anterolateral rotatory instability and medial instability of the right knee and hypertension.  It was felt his right knee would sustain further degenerative changes with use.  He was referred to a Physical Evaluation Board (PEB).

On 8 March 1984, an informal PEB found the applicant to be unfit for duty due to anterolateral rotatory instability and medial instability of the right knee with pain and swelling on exertion, rated as moderate, under the VA Schedule of Rating Disabilities (VASRD) code 5257.  His hypertension was not rateable. He was recommended for separation with severance pay with a disability rating of 20 percent.  On 26 March 1984, the applicant concurred in the findings and recommendation and waived a formal PEB.  On 9 July 1984, the applicant was discharged by reason of a physical disability with severance pay.

In February 1992, the VA performed another anterior cruciate reconstruction on the applicant’s knee.  The immediate stability obtained at surgery was excellent. But it was noted that his knee could progressively become more unstable and perhaps a knee replacement might be required sometime in the future.
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 regulation defines “physically unfit” as unfitness due to 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 purposes of his employment on active duty. 

Title 10, U. S. 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.

The VASRD is the standard under which percentage rating decisions are to be made for disabled military personnel.  The VASRD is primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  Unlike the VA, the Army must first determine whether or not a soldier is fit to reasonably perform the duties of his office, grade, rank or rating.  Once a soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VASRD.   These percentages are applied based on the severity of the condition.

The VASRD gives code 5257, other impairment of the knee, a disability rating of 30 percent when the recurrent subluxation or lateral instability is severe and a disability rating of 20 percent when it is moderate.
 
Title 38, U. S. Code, sections 310 and 331, 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. 

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 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 this requirement.

2.  The rating action by the VA does not necessarily demonstrate an error or injustice in the Army rating.  The VA, operating under its own policies and regulation, assigns disability ratings as it sees fit.  The VA is not required by law to determine medical unfitness for further military service in awarding a disability rating, only that a medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved (i. e., the more stringent standard by which a soldier is determined not to be medically fit for duty versus the standard by which a civilian would be determined to be socially or industrially impaired), an individual’s medical condition may be rated by the Army at one level and by the VA at another level, 

3.  The Board notes that as late as 1992, surgery had provided the applicant with excellent knee stability.  It appears that it was only recently that his knee instability deteriorated to the point where it met the “severe” criteria and he requires a joint replacement.  There is no evidence to show that he met the “severe” criteria at the time of his PEB or separation.

4.  Regrettably, 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

__jev___  __bje___  __wdb___  DENY APPLICATION

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

INDEX

CASE ID	AR2001058998	
SUFFIX		
RECON		
DATE BOARDED	20010821	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	108.00	
2.		
3.		
4.		
5.		
6.