PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:            15 December 1999
	DOCKET NUMBER:    AR1999015181

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

	Mr. Loren G. Harrell		Director	
	Mr. Hubert S. Shaw, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. Thomas N. Kuhn		Chairperson	
	Ms. Elizabeth Buchanon		Member	
	Mr. Mark D. Manning		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

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

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that his military records be corrected to incorporate his Physical Evaluation Board (PEB) proceedings and the U.S. Army Physical Disability Agency Memorandum, dated 21 November 1997.  He also requests, in effect, that he be allowed to complete the physical disability processing for disability retirement or separation and that he be retired by reason of permanent disability.   

3.  The applicant states that his PEB proceedings should be made a permanent part of his records since it was pending at the time of his retirement.  He contends that an appeal on the findings of the PEB was pending when he was placed on the retired list effective 4 September 1997 and that the PEB did not convene until 8 October 1997.  He goes on to state that his separation from the Reserve Component should have been delayed pending the findings of the PEB, as outlined in Army Regulation 635-40, paragraph 8-7, Continuance in an Active Reserve Status.  In support of his application, he submits a letter of explanation; DA Form 199 (Physical Evaluation Board Proceedings) dated 8 October 1997; and a U.S. Army Physical Disability Agency Memorandum, dated 21 November 1997.

4.  The applicant’s military records show that he was born on 4 September 1937. He enlisted in the Pennsylvania Army National Guard on 11 February 1960 and was ordered to active duty for training on 26 March 1960.  He was honorably discharged on 18 September 1960 and returned to control of the Army National Guard.  The applicant reverted to USAR control on 9 October 1962 to complete his remaining service obligation.  On 29 May 1963 he reenlisted in the Pennsylvania Army National Guard and was honorably discharged on 28 May 1966.  After a break in service, he reenlisted in the Pennsylvania Army National Guard on 26 August 1982.

5.  On 1 July 1996 the Pennsylvania National Guard notified the applicant that he had completed the required years of service to be eligible for retired pay upon application at age 60.  This notification is commonly referred to in the National Guard as the “20 Year Letter”.

6.  In August 1996 the applicant was diagnosed by a medical evaluation board (MEB) with significant coronary artery disease, status post an inferior myocardial infarction; significant left knee arthritis, status post a total knee replacement; mild shortness of breath; and mild hypercholesterolema.  The MEB recommended referral to a PEB. 

7.  On 2 December 1996 an informal PEB convened at Walter Reed Medical Center considered the applicant’s case.  The informal PEB found the diagnoses of significant coronary artery disease status post an inferior myocardial infarction;  mild shortness of breath; and mild hypercholesterolema as “not unfitting, not ratable.”  The informal PEB found the applicant physically unfit due to pain, left knee, due to osteoarthritis with a recommended disability percentage of “10%”. (10%).  As a result, the informal PEB recommended the be separated with severance pay.  On 29 December 1996, the applicant was notified of his pending formal PEB on 6 January 1997.

8.  On 22 January 1997, the applicant’s formal PEB was canceled due to his second total left knee replacement surgery scheduled for 22 February 1997.  The applicant was unable to undergo knee replacement due to heart problems.  He underwent coronary artery bypass on 11 February 1997.  The applicant’s left knee was replaced on 16 June 1997.

9.  On 4 August 1997 the Army Reserve Personnel Center notified the applicant that his application for retired pay had been approved.  
 
10.  The applicant’s disability case was resubmitted to the Physical Evaluation Board at Walter Reed Army Medical Center, Washington, D.C.

11.  The applicant was honorably discharged on 4 September 1997 under the provisions of National Guard Regulation 600-200, for attainment of maximum allowable age, and transferred to the retired reserve.     

12.  On 8 October 1997, the PEB found the applicant physically unfit and recommended a combined rating of 30% and that the applicant’s disposition be permanent disability retirement.  The applicant concurred with the PEB findings and recommendations. 

13.  U.S. Army Physical Disability Agency Memorandum, dated 21 November 1997, stated that the applicant’s placement on the retired list effective 4 September 1997 precluded processing through the disability system and required his case to be administratively terminated.  The memorandum also states “In reviewing your case, we have determined that your knee replacement is not considered the proximate result of performing duty.  Your final disposition should therefore have been a finding of unfit with a disposition of separation without disability benefits.  This finding was reached for the following specific reasons: Your medical board, dictated on 08 Aug 96, stated under the current prognosis that your left knee arthritis, status post total knee replacement, had been a very chronic problem beginning more than 10 years ago probably stemming from a trauma that you sustained at a younger age.  The LOD [Line of Duty] does not indicate a significant trauma which would have caused further injury to your knee.  In fact, the LOD does not describe any injury occurring during the APFT [Army Physical Fitness Test], only that you experienced aggravation of a previous condition and the medical diagnosis was fixed valgus deformity.  Further, the DA Form 261 quotes you as stating that your knee has gotten progressively worse since getting in the National Guard.  This information established a condition which existed prior to service which had been getting worse due to the natural progression of the disease, and to which the APFT did not contribute any permanent service aggravation.  The development of arthritis occurs over a long period of time.  An injury sustained during a PT [physical test] test would not have caused the extent of your degeneration nor would it have been the main reason you required a total knee replacement.  Without further information to substantiate that the injury you incurred during the APFT, caused or permanently aggravated your severe left knee arthritis, you are not entitled to receive disability compensation.”

14.  National Guard Regulation (NGR) 600-200 and Army Regulation 135-178 govern procedures covering enlisted personnel management of the Army National Guard.  Chapter 8 of NGR 600-200 covers, in pertinent part, reasons for discharge and separation of enlisted personnel from the State Army National Guard.  Paragraph 8-26 of that regulation provides in pertinent part that individuals can be separated for attainment of maximum allowable age.  Army Regulation 135-178 states that an enlisted soldier who attains age 60 as set forth in Army Regulation 140-10 or National Guard Regulation 600-200, as appropriate, unless granted a waiver will be discharged by the separation authority or, if eligible and the soldier applies, be transferred to the Retired Reserve.  Unless otherwise specified, soldiers separated under this chapter will be awarded a character of service of honorable or under honorable conditions, unless an uncharacterized description of service is required. 

15.  Army Regulation 600-8-104 (Military Personnel Information Management/Records) prescribes the policies governing the Official Military Personnel File (OMPF), the Military Personnel Records Jacket, the Career Management Individual File, and Army Personnel Qualification Records.  Paragraph 2-4 of this regulation states that once a document is placed in the OMPF it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by: the Army Board for Correction of Military Records, the Department of the Army Suitability Evaluation Board, Army Appeals Board, Chief of Appeals and Corrections Branch of the Total Army Personnel Command, the OMPF custodian when documents have been improperly filed, Total Army Personnel Command (TAPC-PDO-PO) as an exception, Chief of the Appeals Branch of the Army Reserve Personnel Center and Chief of the Appeals Branch of the National Guard Personnel Center.  The regulation also states, in pertinent part, that a DA Form 199 (PEB Proceedings) and all allied documents will be filed in the service portion of the OMPF.  

16.  Title 10, United States Code, Sections 1204, 1205, and 1206 establish the criteria for entitlement to disability benefits for soldiers of the Reserve Components performing duty for 30 days or less.

17.  Army Regulation 635-40, chapter 8, provides the rules for processing through the disability system soldiers of the Reserve Component and specifically provides for disability processing of soldiers who incur or aggravate an injury or disease in the line of duty while performing inactive or active duty for training.  The regulation requires that when a commander or other proper authority believes that a soldier not on extended active duty is unable to perform the duties of his or her office, grade, rank or rating because of physical disability, the commander “will refer the soldier for medical evaluation according to Army Regulation 40-501 or National Guard Regulation 40-3”.  Referral for disability processing does not mean an automatic entitlement to disability compensation; however, once referred, a determination must be made whether the disease was the proximate result of performing duty.

18.  Paragraph 8-7 of Army Regulation provides for continuance of a Reserve Component soldier in an Active Reserve status in order to complete disability processing.  To be considered for continuance in the Reserve Component, a soldier must be found unfit by a PEB because of a disability that was not the result of intentional misconduct nor willful neglect, nor incurred during a period of AWOL; capable of maintaining oneself in a normal military environment with adversely affecting one’s health and the health of others; physically capable of performing useful duty in a military occupational specialty for which currently qualified or potentially trainable; and capable of performing useful, military service without undue loss of time from duty for medical treatment.

CONCLUSIONS:

1.  The applicant’s contention that his PEB proceedings, dated 8 October 1997, and the U.S. Army Physical Disability Agency Memorandum, dated 21 November 1997, should be made a permanent part of his records, is valid.  In accordance with the governing regulation, a DA Form 199 (PEB Proceedings) and all allied documents will be filed in the service portion of the applicant’s OMPF.  Therefore, he is entitled to correction of his military records to incorporate these documents. 

2.  Evidence of record shows the applicant was notified of eligibility for retired pay at age 60 (commonly referred to as the “20 Year Letter”), submitted an application for retired pay under Title 10, United States Code, Section 12731, and became 60 years old on 4 September 1997.  As a result, the applicant was separated under the provisions of National Guard Regulation 600-200, for attainment of maximum allowable age.  His separation was administratively correct and in conformance with applicable regulations based on this specific information cited in this paragraph.  Accordingly, the type of discharge directed and the reasons therefore were appropriate considering these facts alone.

3.  However, evidence of record shows that the applicant had been entered into physical disability processing on 17 September 1996, almost a year prior to his retirement for attainment of maximum allowable age on 4 September 1997.  Evidence of record also shows that the applicant’s disability processing was delayed due a second replacement of his left knee on 16 June 1997, but disability processing continued after the applicant's retirement because disability processing authorities were unaware of the applicant’s retired status at that time.

4.  Evidence of record shows the applicant’s case was considered by an informal PEB, convened on 8 October 1997, which determined the applicant was physically unfit with a combined disability rating of 30 percent for his left knee condition.  The applicant concurred in the results of the informal PEB in his own hand on 19 October 1997.

5.  Evidence of record shows that, when Physical Disability Agency officials discovered the applicant had been retired, the applicant was notified that his disability processing was administratively terminated.  In this notification, the Physical Disability Agency also advised that final disposition of his case should have been a “finding of unfit” resulting in “separation without disability benefits” because his knee replacement was not the result of performing duty; rather, it was the result of trauma sustained at a younger age.

6.  Based on the foregoing, the Board has determined that the administrative termination of the applicant’s physical disability processing may have denied him a 30 percent disability rating awarded by an informal PEB without recourse to a formal PEB.  In this regard, the Board acknowledges that applicant had properly been entered into the physical disability process, but processing was delayed due to a second knee replacement operation.  Further, the Board notes that Army Regulation 635-40, chapter 8, provides for extending Reserve Component soldiers in an Active Reserve status to complete physical disability processing and that such an extension could have been granted in this case pending review of his MEB by both an informal PEB and formal PEB, if necessary.  Therefore, the applicant should now be afforded the opportunity to complete the physical disability process by offering him the opportunity to request a formal PEB. 

7. In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by adding the DA Form 199 (Physical Evaluation Board Proceedings) dated 8 October 1997 and the Memorandum from the U.S. Army Physical Disability Agency, dated 21 November 1997, to the service portion of the OMPF of the individual concerned. 

2.  That the individual concerned be offered the opportunity to complete his physical disability processing by requesting a review of his case by a formal PEB.

3.  That, in the event the individual concerned requests a formal PEB hearing:

	a.  he be issued invitational travel orders, as necessary, to prepare for and participate in consideration of his case by a formal PEB; and

	b.  all required reviews and approvals be made subsequent to completion of the formal PEB.

4.  That, in the event the individual concerned is found unfit and receives a recommended disability percentage of 30 percent or more:

	a.  he be properly advised on applicable options and conditions as listed in paragraph 8-9 of Army Regulation 635-40 and makes an election; and 

	b.  if required by his personal election, his transfer to the Retired Reserve on 4 September 1997 be voided and new retirement documents be issued reflecting his entitlement to disability retirement benefits under Title 10, United States Code, Section 1204 effective 4 September 1997.

BOARD VOTE:  

TNK_____  EB_____  MDM____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		Thomas N. Kuhn________
		        CHAIRPERSON

INDEX

CASE ID	AR1999015182	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19991215	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	199970904	
DISCHARGE AUTHORITY	NGR 600-200, PARA8-26J(5)	
DISCHARGE REASON	MAXIMUM ALLOWABLE AGE	
BOARD DECISION	GRANT	
REVIEW AUTHORITY	MR HARRELL	
ISSUES         1.	108.00	
2.		
3.		
4.		
5.		
6.