MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:           20 May 1999                   
	DOCKET NUMBER:   AR1999024632

	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. Kenneth Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Ernest M. Willcher		Chairperson	
	Mr. Hubert O. Fry, Jr.		Member	
	Ms. Margaret V. Thompson		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 he be reinstated in the Army with the restoration of all rights, privileges, and property.   

APPLICANT STATES:  That he was wronged because he was never informed of his right to a MOS (military occupational specialty) medical retention board (MMRB).  He was in a medical holding unit and was misinformed that a soldier in a medical holding unit was not entitled to a MMRB.  He did not want a medical evaluation board (MEBD), and his doctor knew this, assuring him that he would have a chance to remain in the Army.

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

The applicant enlisted in the Army Reserve on 20 July 1989, completed training as a combat engineer, and was released from active duty and transferred to his Reserve unit on 26 October 1989.  He was promoted to pay grade E-4 on         18 March 1991, and reduced to pay grade E-3 on 7 September 1991.  He was  reassigned to the Reserve Control Group (Annual Training) on 1 April 1992 because of unsatisfactory participation in his Reserve unit.  He was voluntarily reassigned to a Reserve unit on 2 February 1993, and again reassigned  to the Reserve Control Group on 15 June 1993 because he was a “no show” at the Reserve unit.   

The applicant entered on active duty on 5 January 1994.

A 22 November 1993 report of medical history indicates that the applicant had arthroscopic surgery on his left knee in July 1991.  His medical records while on active duty show that he had continuous problems with his knee as early as May 1994, and had received various profiles for that knee.  A 26 May 1995 medical report shows that the applicant had a history of left knee anterior cruciate ligament deficient with instability; and underwent a central third bone-patella-tendon-bone ACLR on 3 January 1995.  That report shows that he had another operation to his left knee on 22 May 1995, where an anterior cruciate ligament reconstruction using the medial hamstring tendon was performed.  He was discharged from the hospital on 26 May with a recommendation for 45 days of convalescent leave.  He was ambulatory with crutches.  He was given a permanent physical profile of 1 1 3 1 1 1 on 19 September 1995, because of his left knee ligament reconstruction with residual pain.  On 14 February 1996 and again on 16 April 1996, he received the same profile, because of left knee instability and pain.

In a 12 October 1995 memorandum an NCO of the 84th Engineer Company, the applicant’s former unit, stated that the applicant’s physical condition did not prevent him from performing his duties as the assistant NBC NCO.  He recommended that the applicant be considered for continuation [on active duty] in a suitable MOS.
In a 25 January 1996, an officer and two NCOs of the 84th Engineer Company stated that he was an outstanding soldier, and recommended that he be reclassified and be allowed to continue to serve in the Army. 

In a 20 May 1996 letter to a member of congress (MC), an official at Fort Polk, Louisiana stated that the applicant had undergone four operations on his left knee and had permanent duty and assignment limitations due to instability, stiffness, and pain syndrome affecting that knee.  Medical evaluation board proceedings had been initiated.  The applicant had been assisted in preparing a request for consideration by the PEB (physical evaluation board), that he be retained in the Army and assigned to duties for which his disabilities were not disqualifying.  His request would be forwarded to the PEB, and the applicant could request to appear before the PEB, and be represented by counsel.

Although the applicant’s records contain no information concerning the MEBD, his case was referred to a PEB.  On 13 June 1996 a PEB described his disability as chronic pain, left knee, status post anterior cruciate ligament reconstruction with two revisions, a mild residual clinical instability and severe functional instability, with Lachman’s 1+/4+ and pivot shift 1+/3+.  The PEB stated this his chronic knee pain and his resultant profile prevented his reasonable performance of military requirements and the duties of a combat engineer, and that his medical and physical impairment prevented reasonable performance of duties required by his grade and MOS.  The PEB indicated that the applicant had applied for continuation on active duty. The PEB determined that the applicant was physically unfit and recommended a disability rating of 20 percent and that he be separated with severance pay.	 

In a 20 June 1996 memorandum for the president of the physical evaluation board (PEB), the applicant’s commanding officer stated that the applicant had been assigned to the medical holding company since July 1995 and would be a valuable asset to any organization.

In a 27 June 1996 letter to an MC the applicant complained about the results of a 7 June 1996 PEB, conducted while he was on leave, and which determined that he should receive a 20 percent disability rating.  He stated that he believed that he would be reclassified; however, after learning otherwise he attempted to have his case heard before an MMRB, to no avail.  He felt pressured into concurring with the recommendations of the PEB, and finally decided to concur so as to not lose out on the 20 percent rating.  He also stated that he had signed a denial of continuance of active duty (COAD).  He believes that he was not given enough information to make a good decision, and was misinformed from the beginning by his doctor.  He requested assistance in remaining in the Army.

In a 10 July 1996 application to the VA for compensation the applicant indicated that he had left knee ACLR surgery on 3 January 1995, 28 February 1995, and 22 May 1995.

In a 13 August 1996 letter to that same MC he again complained of the treatment that he received, that he was misled, that he was informed that once a MEB convened, he could not go before a MMRB.  He was further informed that he could go before a MMRB, but only if the results of the MMRB came back before the results of the PEB.  He was then informed that he missed the MMRB by one week.  He again requested assistance in remaining in the Army. 

The applicant was discharged at Fort Polk on 5 September 1996 under the provisions of Army Regulation 635-40, paragraph 4-24b(3), because of disability. He received $8125.20 in severance pay.  He had 2 years, 8 months, and 1 day of service.

On 26 September 1996 the applicant submitted a statement to the VA claiming an increase in his service connected disability of anterior cruciate ligament to his left knee, which he stated had increased in severity.

On 2 October 1996 an official at Fort Polk informed the aforementioned MC that the applicant’s doctor referred his case directly to a MEBD, that there was no impropriety in such an action, although a soldier who had been given a permanent profile such as the applicant’s would normally go before a MMRB, prior to a MEBD.  He informed the MC that MMRBs are an option, not a right of the soldier.  The medical board (MEBD) found the applicant unfit for duty and he was referred to a PEB.  He stated that the PEB found the applicant unfit and that the applicant would be discharged, his only option being a submission to this Board requesting relief.  

A 30 October 1996 VA medical report indicates that the applicant developed swelling about his knee on the first day on his new job after being discharged from the Army; however, the swelling had since gone down over the past week.  The doctor diagnosed his condition as failed anterior cruciate ligament reconstruction left knee times three, and that he had a generalized ligamenatous laxity, which however, did not account for the gross instability about his left knee.

On 5 November 1996 the applicant was reassigned from the Army Reserve Control Group (Reinforcement) to a troop program unit (TPU) in Orlando, Florida. 

In a 16 February 1997 letter his former supervisor at a Home Depot store stated that the applicant was physically and mentally able to perform the demanding physical rigors of his job at that store.

On 20 May 1997 the VA awarded the applicant a 10 percent service connected disability rating for residuals, left anterior cruciate ligament reconstruction, times three.  On 15 February 1998 he appealed that rating, and stated that he had three left knee surgeries while in the Army, and since his third surgery, his left knee has swollen on and off.  He stated that he has since had a fourth surgery to his left knee 5 September 1997.

A 15 December 1997 VA medical report indicates that for the first month to six weeks after his fourth ACL reconstruction the applicant stated that he felt wonderful and his pain that he had for over two years was gone, but he apparently started developing symptoms, and now has had continuous pain, and has had a couple of episodes of locking.  His condition was diagnosed as failed revision ACL reconstruction with recurrent anterior cruciate ligament instability.

A 6 March 1998 medical report indicates that the applicant had stated that his knee gave out on him and that he was having a lot of pain.  The doctor stated that he informed the applicant that he would most likely required a two stage procedure where removal of hardware and bone grafting of the tunnel defects would have to be performed followed by anywhere from six months to twelve months’ time waiting for the bone grafts to consolidate, followed by an ACL reconstruction with most likely an allograft patellar tendon bone graft.

In a 2 June 1998 medical report, an orthopedic doctor stated that the applicant required a custom knee brace for his anterior cruciate ligament instability.

On 10 August 1998 the VA increased to 20 percent, the applicant’s service connected disability rating for his left knee.  On 11 March 1999 the VA continued that rating for his left knee, and also awarded him a 10 percent service connected disability rating for painful scars to his left knee.       

Army Regulation 600-60 implements and establishes operating procedures for the Physical Performance Evaluation System (PPES) that will upgrade the physical quality of the force and ensure each soldier is physically qualified to perform in his or her Primary Military Occupational Specialty (PMOS) or specialty code worldwide and under field conditions.

Paragraph 1-4e of that regulation provides for a MMRB Convening Authority (MMRBCA).  The MMRBCA appoints a MOS/Medical Retention Board (MMRB) to evaluate soldiers within his or her command or administrative control.  Unless  otherwise delegated, the MMRBCA refers soldiers to the MMRB, and acts upon findings and recommendations of the MMRB.

Paragraph 2-1 states that the PPES is a program designed to evaluate soldiers with permanent medical conditions or impairments to determine if they can  perform satisfactorily in their PMOS or specialty code in a worldwide field environment. The PPES provides for an MMRB to serve as an administrative screening  board to make this determination. The system ensures continuity of effort among commanders, doctors, personnel managers, and the physical disability system. It provides the MMRB convening authority with increased flexibility to determine a soldier's deployability, reclassification potential, or referral to the Army's physical disability system. The MMRB evaluation process  is not intended to be used as a quality assessment of leadership, degree of 
technical skill, or promotion potential.  MMRB recommendations should only be based on a soldier's physical ability to reasonably perform in the PMOS or specialty.
 
Paragraph 2-1also provides for the evaluation process and states in pertinent part that all soldiers who are issued a permanent physical profile with a numerical 
factor of "3" in one or more of the physical profile serial (PULHES) factors will 
be mandatorily referred for evaluation to an MMRB.  Notwithstanding a previous 
decision rendered by USAPDA, all soldiers with a numerical "4" in one or more of 
the PULHES factors prior to 1 July 1984 will be mandatorily referred for evaluation to an MMRB.  All soldiers who are evaluated by the disability system (AR 635-40) after 1 July 1984 do not require MMRB referral.  However, if after an appropriate period of evaluation (120 days is recommended) it is determined that the soldier is incapable of performing in the PMOS or specialty duties, or the soldier's medical condition deteriorates, the soldier may be referred to an  MMRB.  Soldiers with a numerical factor of " 2" in one or more of the PULHES factors will not be referred to the MMRB. However, if the  assignment  limitations are overly restrictive the soldier should be referred to the medical community for  permanent profile reevaluation. 

Paragraph 4.1 states that when it is determined that a soldier cannot satisfactorily perform in a worldwide field environment in his or her MOS or specialty code because of a medical condition, the soldier will be referred to the  
Army's physical disability system for a determination of physical fitness.            AR 635-40 provides detailed procedures and policies of the physical  disability system.  

Paragraph 4-2 states that after a Medical Evaluation Board (MEBD) is held in accordance with AR 40-3, a Physical Evaluation Board  (PEB) holds an informal  
hearing to determine if the soldier is physically fit to continue to perform the duties of his or her office, grade, rank, or rating in a worldwide field environment. The soldier may concur or nonconcur with the findings and may demand  a formal PEB.  A formal PEB determines if the soldier is physically fit and may revise its initial determination based upon any nonconcurrence or rebuttal provided by the soldier.  On completion of the PEB process, the soldier's case is 
forwarded to the United States Army Physical  Disability Agency (USAPDA) for review.

On  receipt of the soldier's case by USAPDA, the Disability Review Council (DRC) reviews the case to ensure compliance with AR 635-40.  If USAPDA  approves the PEB findings and recommendations, the case is forwarded to PERSCOM for appropriate disposition. If USAPDA modifies the findings and 
recommendations, the soldier is provided the opportunity to concur, request a  formal PEB if not previously demanded, or rebut the modification.  The Physical  Disability Appeals Board resolves cases involving modified findings and recommendations when the soldier disagrees with such action, and the case is forwarded to PERSCOM for appropriate action.

A soldier who is physically unfit but who has a disability rating of less than 30 percent for a disability incurred in line of duty is separated with disability severance pay.
 
Although otherwise ineligible for further active duty, a physically unfit 
soldier may apply for COAD (continuation on active duty) under the provisions of AR  635-40.  Soldiers undergoing MEBD or PEB evaluation may submit a  request for COAD through the physical disability system to PERSCOM.  PERSCOM may approve COAD if continued service despite a medical disqualification is in the best interest of  the Army.

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 applicant could have been referred to a MOS medical retention board (MMRB).  He was not; and his consideration by a medical evaluation board, without prior referral to a MMRB, was entirely proper, as was the subsequent  referral of his case to a physical evaluation board.  The applicant does not have a say in this respect.

2.  He did, however, have a say in the findings and recommendations of the PEB. He could have not concurred, could have submitted a rebuttal to the findings and recommendations and could have requested a formal PEB, appeared before that board and be represented by counsel.  He opted not to do so, and as he has stated, he concurred with the findings and recommendations of the PEB. 

3.  He could have requested continuation on active duty (COAD), and the PEB proceedings indicate that he had so requested; however, in his 27 June 1996 letter to a MC he stated he had signed a denial of continuance of active duty (COAD).

4.  The applicant was properly discharged from the Army because of his disability.  He has submitted neither probative evidence nor a convincing argument in support of his request.   
5.  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.

6.  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

___emw__  ___hof__  ___mvt__  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999024632	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990520	
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. 110.03		
2.  108.00		
3.		
4.		
5.		
6.