MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            27 NOVEMBER 2001                   
	DOCKET NUMBER:   AR2001061447

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Lester Echols		Member	
	Mr. John T. Meixell		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, the applicant is requesting physical disability retirement.  

APPLICANT STATES:  She states that she was involuntarily discharged from the Army National Guard on 30 August 1995 due to medical disability.  At that time she should have received an immediate medical retirement with benefits due to injuries that she sustained in line of duty on 10 June 1989.  

She received an official retirement letter dated 27 January 1998 stating that she no longer met the qualification for membership in the Selected Reserve solely because she was unfit because of physical disability.  Since this physical disability was caused in line of duty and because she has 20 years of service she should receive disability benefits.  

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

The applicant was a Captain in the Army National Guard in California when she was injured on 10 June 1989.  She first made application to this Board in 1997, then again in 1998.  Numerous attempts were made to obtain her military and medical records; and she was informed in September 1999 that her records could not be found and her application was being held in abeyance.  However, a member of this agency informed a Congressman’s office on 25 October 1999 that the additional documents concerning the applicant had been received, but that her case would be put on hold until receipt of the MEB (Medical Evaluation Board) necessary to review her case.

A 10 June 1989 medical report from the emergency department of the Twin Cities Community Hospital in Templeton, California, shows that the applicant was driving a tracked vehicle when it went down an embankment and stopped abruptly.  She complained of jaw pain, left anterior, change in teeth with some broken teeth as well as malocclusion (malposition and contact of the maxillary and mandibular teeth as to interfere with the highest efficiency during the excursive movements of the jaw that are essential for mastication), left tibia pain, left and right knee pain and right hand pain.  She denied headache, change in vision, paresis or paresthesias.  She denied chest pain, shortness of breath, abdominal pain, or significant back pain.  Examination revealed that she had an obvious alveolar ridge fracture with avulsion of approximately three left anterior lower teeth, perhaps impaction of the teeth above it on the upper ridge, maxillary. She had a deep laceration in the area where the gingiva and buccal mucosa reflect, with some foreign material which was removed and irrigated.  There was some exposure of bone and some raw edges to the bone, but no obvious fracture.  There was no instability there, but significant tenderness.  She was also tender about the left maxilla (bone that forms part of the upper jaw), but that was stable to testing.  She was also tender in the right TMJ and had decreased range of motion there with lockjaw where she could open her mouth approximately one to 1 ½ fingerbreadths.  Her neck was nontender.  She had full range of motion without pain.  Her chest was nontender and clear.  She had no cyanosis, clubbing or edema in the extremities.  Her left upper extremity had abrasions, without significant trauma.  Her right upper extremity had swelling about the right thumb and multiple abrasions, locally tender on the thumb only.  Wrists, elbow and shoulder were negative.  Nerves, capillary fill and pulses were good.  Her right knee was tender with a 2-cm laceration that was superficial.  She had a full range of motion to the knee, with a stable joint.  Her left mid-third tibia/fibula with an open area about 2 cm locally was tender with ecchymosis (a small hemorrhagic spot in the skin or mucous membrane).  Her left knee was tender but stable.  Distal neurovascular was intact.  Pulses were good in all four extremities.  Motor, sensory, and reflex examinations were symmetric.  X-rays indicated that she had a mandible series which showed a possible left mental area fracture, but that was unclear.  There was clinically an alveolar ridge fracture, which did not show up on the x-ray.  The tibia/fibula was normal.  Left and right knees were normal.  Right hand was normal.  The diagnostic impression was an open alveolar ridge fracture with tooth fractures and avulsions; rule out mandibular fracture; facial lacerations, possibly representing open fractures; multiple contusions and lacerations; and left shin laceration,         3 cm, simple.  While at the hospital she underwent a closed reduction of the mandible fracture with intraoral wiring and suturing of multiple facial lacerations.  At the time of her discharge from the hospital on 13 June 1989 her condition was diagnosed as a fractured mandible and multiple abrasions and contusions. 

The report of investigation (line of duty report) shows that her medical condition was diagnosed as a fractured jaw.  Her injuries were determined to be in line of duty. 

In a 24 January 1990 letter to the 40th Infantry Division of the California Army National Guard, the Naval Hospital at San Diego outlined the applicant’s residual oral and maxillofacial deformities sustained in her 10 June 1989 accident and proposed treatment for those deformities.  That letter also indicated that the applicant was being treated at the Naval Hospital in Long Beach for associated left sided hearing loss and cervicofacial (pertaining to the neck and face) and lumbosacral (pertaining to the loins and sacrum) spine injuries.

The applicant was seen and treated on various occasions in 1990, 1991, and in early 1992 for her fractured jaw, her nasal problems, and her hearing problems at the Naval Hospital in San Diego and the Long Beach Naval Hospital.

She underwent a LeFort I (a type of fracture) maxillary osteotomy for impaction, setback; rigid fixation of osteotomies; placement of an implant, left anterior mandible; autologous bone graft to left anterior mandible; at the Naval Hospital in San Diego on 6 April 1990.  She was seen at various times at both the Long Beach and the San Diego hospitals for her hearing problems.  Follow-up treatments show that the results of her oral surgery were very good, and she was advised that further follow-up would be accomplished by a civilian dentist, and that there was no other treatment or follow-up needed at the Naval Hospital.

A doctor’s certificate shows that she was found to have difficulty breathing.  Her condition was diagnosed as a nasal obstruction.  On 28 January 1991 the applicant underwent a septorhinoplasty (a plastic surgical operation on the partitions in the nose) at the Naval Hospital in San Diego.  She was discharged  on 28 January 1991 and was seen weekly until 18 February 1991.  Follow-up treatments showed that she was doing well. 

A 4 April 1992 VA rating decision shows that she was awarded a 10 percent disability rating for a fractured mandible with scars on chin and anesthesia lip and chin, a 10 percent rating for tinnitus, a zero percent rating for septorhinoplasty due to trauma, and a zero percent rating for minimal weakness of her right hand.

A 23 November 1992 record from an orthopaedic surgeon revealed that the applicant had been examined because of her complaints of multiple joint pains, to include shoulder, neck, jaw, wrist, elbow, and low back.  It indicated that her salient injury sustained in 1989 was apparently a LeFort I, which resulted in numerous maxillofacial surgeries of a reconstructive nature.  It showed that since the time of her injury in 1989 she had noted arthralgias in her shoulder, neck, jaw, wrist and elbow, and particularly her low back.  A physical examination revealed that she had a full ROM of the neck, shoulders, elbows, wrists and small joints of the fingers of her hand, and neurologically her upper extremities were intact.  She was locally tender over the medial epicondyles of both elbows, and diffusely so through her wrists.  She had tenderness in the lower lumbar region.  Circumferential measurements of the thighs and calves on comparing sides showed no atrophy.  Her pelvis was level and her leg lengths appeared to be equal.  Motor testing showed no deficits; sensory testing revealed altered or diminished sensation, lateral aspect, right lower extremity.  Sciatic strength signs were weakly positive on the right, negative on the left.  Lower extremity reflexes were 2+ patellar tendon and Achilles tendon with downgoing Babinskis.  X-rays of the elbow and wrists were unremarkable.  X-rays of the lumbar spine showed scoliosis (an appreciable lateral deviation in the normally straight vertical line of the spine), upper lumbar region with a transitional vertebra at L5.  There was some questionable L5-S1 disc space narrowing.  Her condition was assessed as LeFort I fracture (a horizontal segmented fracture of the alveolar process of the maxilla, in which the teeth are usually contained in the detached portion of the bone); bilateral medial epicondylitis; multiple arthralgias; and scoliosis/transitional vertebra with low back pain and right extremity radicular complaints.  

A form titled, “Initial Medical Review – Annual Medical Certificate,” dated            15 December 1993, shows that the applicant was receiving a 20 percent disability rating from the VA for orthopedic problems, that the applicant’s supervisor stated that she had multiple surgeries for the injuries resulting from her 1989 accident, that she was functioning as a medical section officer without difficulties, that she had frequent headaches controlled by medication, and that she would accept a medical review board.  That form indicates that she had a history of a herniated disc and was unable to stand for prolonged periods and unable to stand in formation.  That form also shows that a medical member of a medical duty review board recommended that she be separated.  Her physical profile serial on that form was incomplete, e.g., 3 blank 3 blank blank blank, and it cannot be determined whether the profile was temporary or permanent.

A 27 June 1994 physical profile report from the VA Medical Center at Long Beach shows that she had chronic lower back pain and degenerative disc disease, L5-S1.  That report indicated that her profile was permanent; however, the report failed to show a physical profile serial, was not approved, nor was there any action taken by her commander on that report.   

On 30 June 1995 the California Army National Guard informed her that her medical records had been reviewed by a medical evaluation board (MEB) conducted from 1 April 1995 through 31 May 1995 and that the board found her unfit for retention in accordance with Army Regulation 40-501, chapter 3.  That agency stated that she had been placed in a non-deployable status and could  perform weekend drills only.  She was not authorized to attend annual training, active duty for special work, or field exercises.  She was informed that she could contest the findings of the MEB, and could appeal the separation, should she desire.  She was also told that if she did not respond or appeal her separation, she would be discharged effective on 30 August 1995 and was instructed not to drill beyond that date.  She was informed that a copy of the MEB was enclosed. The MEB is not available to this Board.

Orders published by the Office of The Adjutant General, state of California, show that she was separated from the Army National Guard on 22 July 1996 and transferred to the Army Reserve Control Group (Reinforcement), because she was twice non-selected for promotion.  Those orders were amended on              19 December 1997 to show that she was transferred to the Retired Reserve and to delete the comment concerning non-selection for promotion.

On 27 January 1998 the California National Guard notified her that she was eligible for retired pay at age 60 with 15 years of service because she no longer met the qualification for membership in the Selected Reserve since she was determined to be unfit due to physical disability. 

On 24 March 1999 she was informed that her claim for workers’ compensation benefits from her civilian employer was denied because investigation revealed that there was no evidence of a new injury to her neck, shoulders, and upper extremities; and that her medical records indicated that she had a pre-existing injury caused by a motor vehicle accident in 1989.

On 12 May 1999 the applicant wrote to a Doctor “R” complaining of the pain that she had been suffering since her 1989 accident.  She stated that she had arthritic-like pain in all her joints, had developed a herniated disc in her lower back immediately after the accident which caused pain, tingling, and numbness in her lower back, and down both legs to her toes.  She stated that at times she could not walk.  She stated that she had pain in her neck and shoulders which became so severe that she became nauseated.  She stated that she had bilateral carpal tunnel syndrome in her arms because of the writing that she did in her civilian job; but she did receive a zero percent disability rating from the VA for right hand weakness.  She requested an MRI of her neck and lower back.  She believed that a lot of her pain was due to neural damage caused by the accident. 

In a 13 May 1999 advisory opinion regarding her 8 October 1997 application to this Board requesting a medical discharge, the Army Review Boards Medical Advisor noted that she had been discharged because of her being twice non-selected for promotion, the 27 June 1994 permanent profile that she had received, the initial medical review-annual medical certificate of December 1993, and the 30 June 1995 letter from the California Army National Guard referencing a MEB.  The Medical Advisor noted that there was no record of any MEB in the submitted documentation, and that a copy of the MEB and any subsequent disability evaluation system referrals was needed in order to ensure a full and fair decision in her case.  He stated that if none existed, there was no medical reason to change her discharge status.

In a 27 May 1999 rebuttal to the advisory opinion the applicant attached a copy of orders amending her 18 July 1996 orders to show that she was transferred to the Retired Reserve and to delete the comment concerning non-selection for promotion.  She stated that her request to change her status to a medical discharge was not based solely because she was found unfit for retention by a medical board, but on the information in her medical records which was four inches thick.  She stated that the notification for retired pay at age 60 because she was unfit because of physical disability should qualify her for a medical retirement.  She believed that a MEB was currently in process.  She attached a copy of a letter to Dr. “R” requesting an appointment with him, and attached a copy of the correspondence denying compensation for problems with her neck.

In an 11 October 1999 statement to this Board concerning her drilling status after her accident, the applicant stated that she did not receive a proper medical board after being discharged from the hospital, but was instead ordered to active duty from  21 June 1989 to 30 April 1990, and was paid while recovering from her injuries.  During that time, she was not given the opportunity to request a MEB nor was she counseled concerning an evaluation for a MEB.  She stated that she continued drilling because she could not afford to give up her drill pay, and not have medical retirement pay to replace it.  Since her accident, she has not been able to pass any physical fitness tests. 

In an 11 October 1999 statement to a Member of Congress concerning her retirement in December 1997, she stated that she did not ask for an early retirement, but instead asked that her records be corrected to indicate a medical retirement with retroactive pay to July 1995.  She stated that she had not received an accurate accounting of her retirement points, and that her Army Reserve military and medical records could not be found. 

In an 11 October 1999 letter to the 40th Infantry Division of the California Army National Guard, she requested a copy of the MEB that was conducted from         1 April 1995 to 31 May 1995, stating that neither the Army Reserve nor the Army Review Board had a copy.  She requested that a copy be provided a Member of Congress for further forwarding to this agency.  There is no evidence to show that the 40th Infantry Division provided a copy of the MEB.

On 5 June 2001 a Member of Congress forwarded a VA rating decision awarding the applicant a 50 percent service connected disability rating.  That 30 April 2001 decision shows that the VA awarded the applicant a 20 percent disability rating for chronic symptomatic myoligamentous strain, lumbar spine with spondylosis (a general term for degenerative changes due to osteoarthritis) effective on           20 March 1992; a 10 percent rating for the same strain to her cervical spine with spondylosis effective on that same date; a 20 percent rating for bursitis, both shoulders with traumatic joint disease, right shoulder and patellofemoral syndrome of both knees, effective on that same date; a 10 percent rating for tinnitus; a zero percent rating for fracture, mandible, with scars on chin and anesthesia to lip and chin; and a zero percent rating for septorhinoplasty.  Service connection for bilateral carpal tunnel syndrome was denied.

In the processing of this case an advisory opinion was obtained from the National Guard Bureau.  That agency stated that the Army National Guard was unable to render an opinion in that she had not provided enough evidence to show that she was eligible to be medically retired, or to show that her transfer to the Retired Reserve was in error.

In a 21 August 2001 letter to this agency the applicant stated that she would rebut the 26 July 2001 advisory opinion, but requested a 90-day extension in order to do so.  

The applicant submitted, via a Member of Congress, a rebuttal to the advisory opinion, consisting of medical records to include a 30 November 1992 radiological consultation of her lumbar spine showing a diagnosis of mild to moderate L5-S1 degenerative disc disease with a 4-5 mm central disc herniation. There was mild effacement of the adjacent thecal sac and S1 nerve roots without evidence of compression or deviation; and a small L1 vertebral body hemangioma.  Also included was a 2 April 1995 report of medical examination indicating that she was not qualified for retention with a physical profile serial of   T4 1 1 P2 1 _ [blank].  That report indicated that she had an abnormal EKG. 
The report of medical history that she furnished for that examination indicated that she was taking 800 mg of Motrin for back and neck pain.  That report showed that she wore a back support when she did housework or when she was on field exercises. 

The applicant has summaries of retirement points contained in her records, showing that she had either 16 years, 19 years, or 20 qualifying years of service for retired pay at age 60.  The latest summary, dated 27 January 1998, shows   20 qualifying years for retired pay.  That summary shows that her last “good” year was from 21 April 1994 to 20 April 1995, earning 75 retirement points, 15 of which were for annual training or active duty for training.  Her retirement point summary shows that her 20 qualifying years began in 1975, continuing through April of 1995, and in each of those years, except for 1977-78 and 1978-79, she earned at least 14 points for annual training or for active duty for training. 

Army Regulation 40-3, chapter 7, provides for MEBs, and are convened to document a service member’s medical status and duty limitations insofar as duty is affected by the member’s medical status.  Situations that require consideration by a MEB include those involving Reserve component personnel on active duty for training (ADT) or inactive duty for training (IDT), whose fitness for further military service upon completion of hospitalization is questionable, and those who require hospitalization beyond the termination of their tour of duty.  Consideration by a MEB also includes those involving a Reserve component member who requires evaluation because of a condition that may render him unfit for further duty. 

Army Regulation 40-501 provides information on medical fitness standards for enlistment, retention, and related policies and procedures.  Chapter 9 sets basic policies and procedures for medical examinations.  It covers those examinations used to medically qualify individuals for entrance into and retention in the Army Reserve.  Normally, Reserve component soldiers who do not meet the fitness standards will be transferred to the Retired Reserve or discharged.  They will be transferred to the Retired Reserve only if eligible and if they apply for it. 

Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of her office, rank, grade or rating because of disability incurred while entitled to basic pay.

Army Regulation 635-40 establishes the Army physical disability evaluation system and sets forth policies, responsibilities, and procedures that apply in determining whether a soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  It provides for medical evaluation boards, which are convened to document a soldier’s medical status and duty limitations insofar as duty is affected by the soldier’s status.  A decision is made as to the soldier’s medical qualifications for retention based on the criteria in AR 40-501, chapter 3.  If the MEB determines the soldier does not meet retention standards, the board will recommend referral of the soldier to a PEB.

Army Regulation 635-40, chapter 8, outlines the rules for processing through the disability system soldiers of the Reserve component who are on active duty for a period of less than 30 days or on inactive duty training; and outlines the criteria under which soldiers of the Reserve component, whether or not on extended active duty, apply for continuance in the active Reserve.

Paragraph 8-2 states that soldiers of the Reserve components are eligible for disability processing from an injury determined to be the proximate result of performing annual training, active duty special work, active duty for training, etc.

Paragraph 8-6 states that when a commander believes that a soldier not on extended active duty is unable to perform his duties because of physical disability, the commander will refer the soldier for medical evaluation.  Paragraph 8-6b states in effect, that the medical treatment facility will forward the medical evaluation board to the soldier’s unit commander for disposition under applicable regulations. 

Paragraph 8-9 states in pertinent part that a soldier not on extended active duty who is unfit because of physical disability will be separated without benefits if the disability was not incurred or aggravated as the proximate result of performing annual training, active duty special work, active duty for training, inactive duty training, etc. 

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.  There is ample evidence of the injuries that the applicant incurred as a result of her 1989 accident, and the ensuing treatment for those injuries.  Nonetheless, despite those injuries and even though she was receiving compensation from the VA for her disabilities, she continued to attend drills with her National Guard unit and continued to perform annual training with her unit almost immediately after her 1989 accident and through her retirement year ending on 20 April 1995, as reflected in the summary of her retirement points.    
2.  There have been various attempts to obtain the MEB which determined that the applicant was unfit for retention, to no avail.  Likewise, although she was informed that she could contest the findings of the MEB and appeal the separation action, there is no evidence that she did so.  Absent the MEB there is no evidence, nor has the applicant provided any, to show that she was medically unqualified for retention because of injuries that she suffered as a result of her 1989 accident.  In fact, the 2 April 1995 report of medical examination indicates that she had an abnormal EKG.  However, whether or not this was the factor in determining that she was not medically qualified for retention is not known.       

3.  Absent evidence to the contrary, regularity is presumed.  There is no evidence that the applicant had any medically unfitting disability incurred while receiving basic pay.  Consequently, there is no basis for physical disability retirement or separation.  The applicant has submitted neither probative evidence nor a convincing argument in support of her request.   

4.  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.

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

__AAO       ___LE __  __JTM __  DENY APPLICATION

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

INDEX

CASE ID	AR2001061447	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20011127	
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.	177	
3.		
4.		
5.		
6.