MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            5 December 2000   
	DOCKET NUMBER:   AR2000040193

	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	
	Ms. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Ms. Ann M. Campbell		Chairperson	
	Mr. Allen L. Raub		Member	
	Mr. Jose A. Martinez		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 her records be corrected to reflect disability retirement.

APPLICANT STATES:  In a self-authored statement that in October 1993 she met with the Physical Evaluation Board Liaison Officer (PEBLO) at Walter Reed Army Medical Center.  She notes that after the PEBLO informed her that she would be receiving a disability rating of 10 percent he told her that based on his experience there was little chance of obtaining a higher rating and that the appeal process would “be a long one….”  She states that the PEBLO suggested she might be able to obtain a higher rating from the VA but ultimately the VA also “gave [her] a rating of 10%.”

She states that since her separation from active duty she continued to experience problems with her hip and underwent a total hip replacement in 1995. However, she notes she continues to have problems and has been treated periodically by the VA.  She maintains that had she not been discouraged by the PEBLO she “might have requested an appeal at a much earlier date” but was under the impression that “it would be to no avail….”

She states that she is pursuing the issue now because “since April 1999” her spouse has been unable to work full time because she needs his assistance to care for their daughter who has cerebral palsy.  She notes that the situation has become extremely difficult for them both emotionally and financially.

The applicant is supported in her statement by a statement from her spouse who indicated that the PEBLO told them that by not accepting the 10 percent rating the applicant would have to remain in the Army for a longer period without any real chance of having the rating percentage increased.

COUNSEL CONTENDS:  In effect, that an injustice was created when the applicant was not properly counseled regarding her rights to demand a formal Physical Evaluation Board (PEB).  He also states, in effect, that had military medical personnel followed through with the applicant’s medical condition she should have undergone a total hip replacement while on active duty and as such would have received a disability rating of 30 percent.  He notes that the applicant’s degenerative joint disease was not sufficiently stable at the time of her PEB as evidenced by the fact that within 12 months after her separation she underwent a total hip replacement operation.  As such he maintains that because her condition was not stable at the time of her separation her “post discharge medical record should be evaluated for disability rating purposes.”

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

She was a member of the Army National Guard when she entered active duty on 27 January 1986 as part of the Active Guard Reserve (AGR) program.
Documents provided by the applicant and her counsel indicate that she was seen by medical personnel for her left hip condition as early as 1985, prior to her entry on active duty with the AGR program.  In October 1997 the applicant underwent an “iliac bone graft, core decompression with bone grafting in the left femoral head.”  In 1989 an evaluating physician noted that the applicant’s condition suggested “early degenerative arthritis” in her left hip.  In spite of her medical condition her performance evaluation reports noted that she passed a physical fitness test in 1989 and 1992.

In September 1990 she was granted a permanent “P4” profile for degenerative joint disease in her left hip.  She underwent a second hip operation in 1991.

In July 1993 the applicant’s commander requested that the applicant be referred for disability processing noting that her degenerative joint disease “and subsequent pain in her left hip has been found to have progressed to a point where it has been suggested that a change in physical activity and lifestyle might possibly alleviate the chance that the degeneration would progress to a point that a hip replacement would have to be considered.”  

A Medical Evaluation Board (MEB) concluded that “because of progressive symptoms in the left hip, it can be predicted that the patient will have further joint deterioration which may lead to a request or need for a total hip replacement in the future.”  She was referred to a Physical Evaluation Board (PEB) “for final disposition.”  The applicant concurred and was referred to a PEB.

An informal PEB, convened on 18 October 1993, found the applicant’s degenerative joint disease prevented satisfactory performance of duties in her grade and primary specialty and recommended she be discharged with entitlement to severance pay with a 10 percent disability rating.  According to documents provided by the applicant, she met with the PEBLO on 20 October 1993 and completed a counseling checklist indicating that she had been counseled regarding her rights and entitlement.  The applicant concurred with the findings and recommendation of the informal PEB and on 20 October 1993 waived her right to a formal hearing.

On 4 February 1994 the applicant was discharged by reason of physical disability and received more than $23,000.00 in disability severance pay.

On 30 June 1995 the applicant underwent a “left total hip replacement.”

Army Regulation 635-40, which establishes the policies, responsibilities, and procedures that apply in determining whether a soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  The objectives of the Army’s disability system is to maintain an effective and fit military organization with maximum use of available manpower, provide benefits for eligible soldiers whose military service is terminated because of a service-connected disability and provide prompt disability processing while ensuring that the rights and interests of the Government and the soldier are protected.  

Army Regulation 634-40 also notes that the Temporary Disability Retired List (TDRL) is used in the nature of a "pending list".  It provides a safeguard for the Government against permanently retiring a soldier who can later fully recover, or nearly recover, from the disability causing him or her to be unfit.  Conversely, the TDRL safeguards the soldier from being permanently retired with a condition that may reasonably be expected to develop into a more serious permanent disability. Requirements for placement on the TDRL are the same as for permanent retirement.  The soldier must be unfit to perform the duties of his or her office, grade, rank, or rating at the time of evaluation.  The disability must be rated at a minimum of 30 percent or the soldier must have 20 years of service computed under section 1208, title 10, United States Code (10 USC 1208).  In addition, the condition must be determined to be temporary or unstable. 

Additionally, Army Regulation 635-40 specifically states that a soldier who is unfit because of physical disability will not be continued on active duty (COAD) solely to increase benefits.  He or she will not be COAD unless his or her retention is justified as being of value to the Army. 

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.  While the applicant maintains that she was, in effect, coerced into accepting the findings and recommendation of the informal PEB the evidence indicates that she was counseled by the PEBLO and authenticated a checklist indicating that she had been properly counseled regarding her entitlement to a formal PEB.  

2.  The applicant indicates, in effect, that she would have expected to receive a higher disability rating had she appeared before a formal PEB.  There is no evidence which would support that belief and the fact that the VA, who is often more generous in their ratings, only granted a 10 percent disability rating tends to support a conclusion that the findings and recommendation of the informal PEB were consistent with the applicant’s situation at the time of her disability processing.

3.  While the Board is certainly sympathetic with the applicant’s current medical and family situation one of the objectives of the Army’s disability system is to maintain an effective and fit military organization.  There are no provisions, and the regulation specifically prohibits, continuing an individual on active duty merely because they may need certain medical procedures at some future date or for the purpose of increasing a disability rating.

4.  The evidence of record supports the determination that the applicant’s unfitting condition was properly diagnosed and rated at the time of her discharge.

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 that 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

___amc__  ____alr_  __jam___  DENY APPLICATION

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

INDEX

CASE ID	AR2000040193	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001205	
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.	108.00	
2.		
3.		
4.		
5.		
6.