PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:            14 March 2002
	DOCKET NUMBER:   AR2001053136

	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. Carl W. S. Chun		Director	
	Mr. Hubert S. Shaw, Jr.		Analyst	

  The following members, a quorum, were present:

	Ms. Joann H. Langston		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Roger W. Able		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 the Army Board for Correction of Military Records (ABCMR) direct the 78th Division to hold both his medical records and his “201 file”[personnel records] until the MEB [Medical Evaluation Board] matter can be resolved; that his separation orders be amended to reinstate him in his former unit in a “medical hold status” to allow the MEB process to continue until it is concluded; that he be allowed to make up any drills he has missed since his discharge so he does not have a break in service; that he receive a full medical evaluation to include orthopedic evaluation at Walter Reed Army Hospital [correctly known as Walter Reed Army Medical Center (WRAMC)] to access [sic assess] his limitation and disabilities; that the “Board” [ABCMR] investigate why his evaluation for the rating period 2 December 1998 to 1 December 1999 was not submitted and/or signed by the rater and senior rater until 000408 [8 April 2000]; and that he be paid money in the amount of $1,146.74 which was taken from his pay for a debt that he did not owe.

3.  The applicant states in a three page addendum to his application, as summarized, that he was evaluated for two injuries received on active duty, an accidental gunshot wound through the left femur sustained in 1979 and an injury to his right knee sustained during Operation Desert Storm which resulted in reconstructive surgery to repair his damaged anterior cruciate ligament (ACL).  He contends that he was evaluated because his injuries were interfering with is abilities to perform his duties as a “Military Police Observer Controller/Trainer” and that he received a “P3” profile with limitations to include no running, no Unit PT [physical training], no lifting over 20 pounds, and no ruck [rucksack].  The applicant further states the physician who evaluated him directed his unit to refer him to a MEB, which his unit did not do for over a year and “forced [the applicant] to file the first of several Congressional Complaints.”  He states that his unit’s position was that the MEB process would be initiated and completed in a timely manner once a line of duty investigation [correctly known as a DD Form 261 (Report of Investigation-Line of Duty and Misconduct Status), hereafter referred to as a Line of Duty Investigation (LODI)] was completed for one of the injuries sustained by the applicant.  The applicant states that he was notified in December 1998 that an investigating officer had been appointed to complete the LODI; however, after 18 months, it still was not completed.  The applicant states that he then sought the assistance of his battalion commander regarding the LODI and the fact that he was having trouble performing his duties as a result of his physical condition.  The applicant contends that his battalion commander never did check into the matter of the LODI and, in July 2000, the battalion commander stated he did not know what further he could do.  The applicant stated that he then called the Inspector General of the 78th Division who did not return the call and left the him “with no alternative but to file a Congressional Complaint.”  

4.  The applicant states that, in early September 2000, he received the completed LODI and shortly thereafter a call from the brigade adjutant who stated that she had submitted the MEB referral.  

5.  The applicant also states that, in August 2000, he received notification of his second nonselection for promotion to major and that, in December 2000, the 78th Division took action to transfer him to the Retired Reserve, but with assurances that the MEB process would continue.  The applicant also contends his chain of command had requested that his discharge orders be amended to keep him on medical hold until the MEB was completed, but the 78th Division declined this request.  The applicant also contends the chain of command assured him that he would receive a physical examination before he was separated, but his unit failed to schedule him.  

6.  The applicant’s military records show that he served initially in an enlisted status on active duty as a military policeman from 8 November 1977 to 3 November 1980.  He also served in the Pennsylvania Army National Guard (ARNG) in an enlisted status.  On 21 May 1983, the applicant was appointed as a Reserve commissioned officer in the rank of second lieutenant in the Military Police Branch.  He was promoted to first lieutenant effective 24 May 1986 and to captain effective 31 May 1991.  The applicant was notified of eligibility for retired pay at age 60 (“Twenty Year Letter”) by AR-PERSCOM memorandum, dated 1 July 1999.

7.  Records show that, while the applicant was on active duty in an enlisted status, he accidentally wounded himself in the left leg with his own military pistol.  His injury was determined to be in the line of duty.

8.  Records show the applicant complained of right knee pain and a vascular lesion on the tip of his nose which was determined on 28 April 2000 to have occurred in the line of duty during his service in Saudi Arabia on or about 11 April 1991.

9.  Records show the applicant underwent surgery to repair the ACL of his right knee in 1995.  The applicant’s case was considered on 16 October 1996 by a Physical Profile Board (PPBD) at Keller Army Hospital at West Point, New York.  A DA Form 3349 (Physical Profile) was issued on 16 October 1996, which awarded the applicant a permanent 3 (P-3) profile under “L” (lower extremities).  The profile stated assignment limitations as:  “No Unit PT, No Lifting [greater] than 20 lbs; No Ruck.”  The profile also stated “No APFT” [Army Physical Fitness Test] and “Recommend MEB.”  The approval authority, a medical corps officer in the rank of lieutenant colonel serving as the Deputy Chief of Clinical Services at Keller Army Hospital, approved the profile on 18 October 1996.  On 29 October 1996, the battalion commander, an Army Reserve lieutenant colonel in command of the 1st Battalion, 309th Regiment of the 78th Division determined that the profile required a change in the applicant’s military specialty and annotated on the DA Form 3349:  “IAW [In accordance with] AR 611-101 [Army Regulation 611-101] the physical limitations w/in [within] this profile may prevent servicemember from performing his duties at his current duty position.  Profile will be forwarded to Div [Division] Surgeon for a Medical Evaluation board.”  

10.  Records show that, on 30 October 1996, the battalion commander forwarded a request to the 2d Brigade of the 78th Division for a medical evaluation of the applicant to determine his fitness for duty.  The brigade commander forwarded this request to the 78th Division Headquarters on 2 November 1996.  By memorandum, dated 14 December 1995, the 78th Division Surgeon responded to the 2d Brigade that the request for a Medical Evaluation Board should be directed to WRAMC and on 16 December 1996, the applicant’s battalion commander was notified of this information.  

11.  A record of telephone conversation, dated 17 December 1996, shows the USAR Liaison to the U. S. Army Medical Department Medical Activity [MEDDAC] at Fort Monmouth, New Jersey, advised an official of the 78th Division as follows:

	“The SM [service member] was not entitled to MEB (Medical Eval. Board) because there is no evidence in SM’s [service member’s] medical record of any DA 2173 line of duty approved relating to an injury or a disability.  AR 40-501 states that since there are no [LODI’s] for the injury that the servicemember is not entitled to MEB.  Servicemember is entitled to a MMRB (Medical Review Board) [sic, Military Occupational Specialty/Medical Retention Board (MMRB)] for retention [and] retainability in their MOSC [Military Occupational Specialty Code]. The process will be initiated at unit level and forwarded for determination through the chain of command for final decision to be made by the Division Surgeon.”

12.  By memorandum, dated 19 December 1996, the applicant’s battalion commander submitted a request to the 2d Brigade Commander for a “Medical Review Board” [sic Military Occupational Specialty/Medical Retention Board (MMRB)] for the applicant.  This request also stated:  “There is no evidence of a DA 2173 (LOD) [sic Statement of Medical Examination and Duty Status] relating to his injury/disability, therefore he is not entitled to a MEB.”  Further the request stated:  “DD Form 3349 [sic DA Form 3349] attached recommends MEB, however, AR 40-501 states he is only entitled to a MMRB.”

13.  The applicant provided a copy of an unsigned memorandum, dated 19 May 1997, from him to his battalion commander.  This memorandum states the applicant has been waiting for a determination on his MEB since 18 October 1996.  The applicant also stated he had contacted an official of the 77th Reserve Support Command who advised that LODI’s were required for both of his injuries before his case could be reviewed by a MEB.  Subsequently, the applicant also wrote to a Member of Congress on this matter.  
14.  The applicant provided an original signed copy of a memorandum, dated 31 May 2000, from him to his battalion commander.  This memorandum states the applicant has been waiting for a determination on his MEB since 18 October 1996.  He continues that the Unit Administrator advised him that an investigating officer had been appointed in December 1998 to do the LODI on his knee injury and that to the best of his knowledge the LODI had been completed and was waiting approval.  The applicant requested the battalion commander’s assistance in “expediting the completion of the LODI, so that the process that was started in Oct 96 [October 1996] can be completed.”  Subsequently the applicant again wrote to a Member of Congress on this matter on 25 July and 4 August 2000.

15.  By Memorandum, dated 10 August 2000, the Chief of Reserve Components Promotions of the U.S. Total Army Personnel Command (PERSCOM), notified the applicant that he had been considered, but not selected, by a Department of the Army Reserve Components Reserve Components Selection Board (DARCSB) for promotion to major.  The applicant was also advised this was his second nonselection for advancement and, as a result, he had to be discharged or, if eligible, elect transfer to the Retired Reserve.  The memorandum advised that the applicant’s removal date was 1 February 2001.

16.  By memorandum, dated 21 August 2000, the Chief of Military Personnel Actions of the U.S. Army Reserve Personnel Command (AR-PERSCOM) notified the applicant regarding election of options for separation as a result of his second non-selection.  The applicant elected transfer to the Retired Reserve and requested transfer effective 31 December 2001.

17.  On 28 August 2000, the Director of Military Personnel at the Headquarters of the U.S. Army Garrison at Fort Dix, New Jersey, advised the Member of Congress that the LODI, dated 9 July 1999, had been completed and approved as of 28 April 2000.  

18.  On 15 September 2000, the applicant wrote to a member of the Congressman’s staff acknowledging that the LODI had been completed.  In this letter, the applicant contended that his most recent officer evaluation report (OER) was not in his packet seen by the DARCSB considering him for promotion to major.  He also contends that, as consolation, he was advised that he would be “recommended for a medal for his 21 years of service to his country.”  The applicant also requested that the Member of Congress intercede on his behalf so that he would not be discharged from the USAR until after the MEB process was completed.  The Member of Congress responded on 28 September 2000 that he had contacted officials at Fort Dix to ask that the applicant’s discharge be delayed until the MEB was completed.

19.  By an unsigned memorandum, dated 28 October 2000, the applicant notified the Chief of Reserve Components Promotions of PERSCOM that he had mailed documents to the DARCSB which were returned.  In the letter, the applicant stated that he was now submitting the packet by registered mail with a return receipt.  The applicant also stated that he knew that his request for reconsideration was beyond the suspense date, but that he was hoping that because of his unusual circumstances the board [DARCSB] would make a special consideration.  The applicant attached to this memorandum, his 20 October 2000 memorandum which requested reconsideration for promotion because his OER covering the period 2 December 1998 through 1 December 1999 was not signed until 8 April 1999.  The applicant also attached to this memorandum a copy of the OER in question, a copy of the 25 February 2000 memorandum to the Chief of Reserve Component Promotions stating that the applicant’s most recent OER was not on his promotion microfiche, his official photograph, his DA Form 2-1 (Personnel Qualification Record-Part II), and his current biographic summary.

20.  Headquarters, 78th Division Orders 0312-007, dated 7 November 2000, reassigned the applicant from the 1st Battalion, 309th Regiment of the 78th Division to the USAR Control Group (Retired) effective 31 December 2000.

21.  On 12 December 2000, the applicant again wrote to the Member of Congress advising that the officer, a USAR captain at the 2d Brigade Headquarters, who had been appointed to address the issue of his MEB had sent the paperwork forward for the MEB and promised that the applicant would not be discharged until the MEB made a determination in his case.  The applicant stated that he was surprised when he received orders transferring him to the Retired Reserve and contacted the captain assisting in his case.  The captain stated that she had already attempted to have these transfer orders amended, but was told by the 78th Division staff that the separation could not be stopped.  The applicant states he was told that he would be scheduled for a retirement physical examination, but later was told that it could not be scheduled until 2 January 2001 which was after his transfer to the Retired Reserve.  However, the applicant’s medical records were at West Point where the MEB was being conducted and without his medical records he could not undergo a retirement medical examination.  Eventually, the applicant was advised that if he was separated before disability processing was completed then the disability processing would be terminated.  In this letter the applicant concluded that persons at the 78th Division have been intentionally “hindering and stalling the MEB process so that it can never be completed.”  The applicant then described the adverse impact of his physical condition on his service and requested the Member of Congress intervene to have the applicant’s orders amended to place him in a medical hold status until the MEB process was completed.  

22.  On 3 November 2000, the Chief of Personnel Management at the U.S. Army Reserve Command (USARC) responded to the Member of Congress.  In this letter, the Chief of Personnel Management explained that the applicant had to be removed from an active status based on two-time nonselection for promotion to major.  The Member of Congress was also advised that, if the applicant believes that a material error existed in his records when reviewed by the promotion board, then he may submit a request for reconsideration by a HQDA Standby Advisory Board supported by appropriate evidence.  However, a request for reconsideration will not prevent the applicant’s transfer from an active Reserve status.  The Chief of Personnel Management also advised the Member of Congress that the Physical Evaluation Board Liaison Officer (PEBLO) at Keller Army Hospital in West Point, New York, would make a determination regarding the applicant’s eligibility for a MEB and notify him through the chain of command. However, he concluded that there was no provision for retaining the applicant for MEB processing and, if found fit for duty, the applicant still had to be removed as a result of two-time nonselection for promotion.

23.  The applicant also provided a copy of his Military Leave and Earnings Statement for 30 January 2001 which shows an original debt of $1,146.74 and a debt payment for this pay period of $636.37.

24.  In the processing of this case, an advisory opinion was provided by the Army Review Boards Agency Medical Advisor.  The applicant was provided an opportunity to submit comments and/or matters in rebuttal to this opinion, and he submitted his comments in a 3 July 2001 letter.

25.  The advisory opinion set forth background information which has already been cited as facts in these Proceedings.  The medical advisor noted that the LODI was not completed until 28 July 1999.  He noted that the LODI “ruled in favor of the soldier” and that the LODI also stated that “the soldier signed a medical document, after Operation Desert Storm” claiming no injuries were sustained during the deployment.”  The medical advisor wrote that his review of Army Regulation 40-501 revealed no requirement for an LODI preceding a MEB, but that paragraph 4-15f requires an LODI when the MEB finds a soldier disqualified for military service and refers the individual to a Physical Evaluation Board (PEB).  In conclusion, the medical advisor stated that it is unclear whether or not the applicant sustained a knee injury during Operation Desert Storm; however, it is his opinion that the applicant should have been afforded a MEB.

26.  In his 3 July 2001 letter, the applicant amended his application and provided comments in rebuttal to the advisory opinion as summarized.  He contends that he does not recall signing a document which stated that he did not sustain any injuries during Operation Desert Storm, but he does contend that he reported his knee injury to the Division Surgeon.  The applicant also contends that physicals received at the demobilization station “were not of the usual high standard in that they did not give much time to each individual soldier at each station.”  He states he only saw his physician for “all of 5 minutes”, the doctor checked his knee by twisting it and diagnosed it as a strain which would heal with exercise.  The applicant contends that several years after his discharge an orthopedic surgeon sent him for a MRI [magnetic resonance imaging] which revealed the ACL had “snapped” and the doctor concluded that the injury had occurred several years earlier.  

27.  The applicant also commented that the 78th Division had told him several times that an LODI was required before the MEB could proceed.  He also argued that the LODI was done for his knee injury during Desert Storm but was lost as confirmed in a sworn statement by his company commander.  The applicant then recited the facts surrounding his retirement physical and stated that an official of the 78th Division said reservists were not authorized to have a retirement physical.  He contends that the 78th Division did not want him to have a physical because he would be found unfit and that would complicate things for the 78th Division because they had not followed through with his MEB.

28.  The applicant then addresses two documents which were not submitted with his application to the ABCMR, but were submitted with his rebuttal:  one is a 25 July 1996 memorandum requesting evaluation by a physician for a profile and the second is a letter update from the Member of Congress, dated 14 March 2001, with a 13 March 2001 letter from the USARC attached.  He first addressed the assertion by the USARC that there are no provisions for extension to complete MEB processing.  He states that it is “sad” that the 78th Division could not complete a MEB in four years and the USARC did not feel obligated to direct the 78th Division to finish the MEB process.  Secondly, he states that he was receiving benefits from the Department of Veterans Affairs (DVA) but only for the gunshot wound to his left leg and that he only applied to the DVA for follow up treatment after his knee surgery.  Finally he points out the rationalization in the letter from the USARC to the effect that he could go the DVA for medical care if he did not complete disability processing in the Army.

29.  Based on the matters raised in the applicant’s 3 July 2001 comments and rebuttal, he requested the following:

	a.  that the debt collection against him be withdrawn since this matter has been resolved; 

	b.  that he be reactivated and reinstated back into his former unit and that the MEB/PEB process be allowed to continue;

	c.  that he be allowed to make up any drills so that he does not have a break in service;

	d.  that he be scheduled for a physical examination at WRAMC in Washington, D.C. “to include being evaluated by an orthopedic surgeon; 

	e.  that, if he meets the criteria for medical retirement, then he be allowed to retire under that regulation; 

	f.  that he be allowed to reopen appeal of his officer evaluation report with the ABCMR since he believes that it is directly linked to his medical issues;  

	g.  that he be provided the direct telephone number to the ABCMR so that he may speak directly about his application; and 

	h.  that he be allowed to appear before the ABCMR at his own expense to address the Board and to clarify issues.

30.  In closing his rebuttal letter, the applicant stated that he is a wartime veteran who was discharged from the Army with unresolved medical injuries and transferred back to the Army Reserve.  He argues that he reported the impact of his injuries on his performance and, despite the fact that his unit commander requested a MEB, the 78th Division never followed through.  He contends that he was told that he would not receive a retirement physical examination, despite the fact that he had not had a physical examination since 1994.  He states that as a consolation that he could go to the DVA if he so desired.  The applicant concludes that he served faithfully for over 20 years and hopes that the ABCMR will rule in his favor and “allow him justice by granting [his] requests.”

31.  Records of the Office of Reserve Components Promotions of PERSCOM reveal that the applicant was considered but not selected for promotion to major by the Calendar Year (CY) 1999 and CY 2000 DARCSB’s.  By memorandum, dated 28 October 2000, he requested promotion reconsideration and provided an unprofiled OER for the period ending 1 December 1999.  On 22 November 2000, the OER was returned with a request to provide a certified true copy of that OER. 

32.  The Office of Reserve Components Promotions reviewed the applicant’s promotion history and determined that his promotion file was complete when considered by the CY 1999 DARCSB; however, the OER ending 1 December 1999 was missing from his file that was considered by the CY 2000 DARCSB.  Further, it was determined that his records were inadvertently omitted from consideration by the CY 1998 DARCSB.  

33.  Records of the Office of Reserve Components Promotions of PERSCOM reveal that the applicant was considered under the criteria for promotion in effect for the CY 1998 DARCSB by the DA Special Selection Board (DASSB) that recessed on 7 August 2001.  The results of that board have not been approved or released.  Under procedures currently in effect, if the applicant is not selected for promotion under the CY 1998 DARCSB criteria, then his file will be submitted to a Special Selection Board Review Team (SSBRT) to determine if the missing OER would have made a difference in his nonselection by the 2000 board.  If the SSBRT determines that the OER may have made a difference his file will be scheduled for the next available SSB.  If the SSBRT determines that the missing OER would not have made a difference his request for reconsideration will be denied.

34.  Medical records provided by the Department of Veterans Affairs (DVA) contain a rating decision, dated 10 April 1990, for residuals of a gunshot wound to the left thigh.  The DVA found service connection for this accidental injury and rated it as “0” percent disabling at that time.  By a 20 March 2000 DVA rating decision, the applicant is currently rated at 20 percent for residuals of a gunshot wound to the left femur.

35.  DVA records also show that the applicant filed an informal claim on 22 November 1995 and a formal claim on 13 December 1995 for a right knee condition.  The DVA noted the applicant’s medical records show that he suffered a right knee injury at age 17 while throwing a javelin, that he was again seen for a knee sprain while in Saudi Arabia, and that he underwent arthroscopic surgery on 15 November 1995 for ACL reconstruction and partial medial meniscectomy on the right knee.  In a 28 June 1996 DVA rating decision, the applicant was granted service connection for a right knee condition rated at 100 percent disability effective 22 November 1995 and an evaluation of 10 percent effective 1 January 1996.  By a 20 March 2000 rating decision, the applicant received 10 percent for postoperative repair of his ACL and a 10 percent rating for arthritis of the right knee. 

36.  The unit newsletter for October 2000 shows that the applicant’s last periodic medical examination was completed in July 1994 and that he was due a periodic medical examination in July 1999.  There is no evidence which shows why the applicant did not undergo a periodic medical examination between July 1999 and his separation as required by regulation.

37.  Records of the Patterson Health Clinic at Fort Monmouth, New Jersey, show that the applicant was scheduled for a physical examination on 2 January 2001, but was a “no show” for that appointment.  However, records of the 2d Brigade of the 78th Division show that the applicant could not undergo a retirement medical examination on 2 January 2001 because his medical records were still with the PEBLO at Keller Army Hospital and were not returned until sometime in April 2001.

38.  In the processing of this case, the staff of the ABCMR requested that the Office of The Surgeon General of the Army render a reconstructed medical examination (MEB) as of the date of the applicant’s separation to determine if the applicant did or did not meet medical retention standards as of 31 December 2000.  That evaluation was provided to the ABCMR as a medical advisory opinion which essentially stated that the applicant probably met medical retention standards at the time of his transfer to the Retired Reserve.  However, the medical advisory opinion also noted that the applicant should also have received a military medical examination prior to his separation from the Army Reserve.  The opinion concluded that the applicant should be evaluated by a military physician who can clearly document the applicant’s physical limitations and probable impact on the performance of duties expected of a military police officer and provide an appropriate physical profile based on that evaluation.

39.  The Narrative Summary also provided the following diagnoses:  

	“1.  Degenerative joint disease, right knee, mild to moderate, s/p reconstructive surgery for anterior cruciate ligament tear.

	2.  Degenerative joint disease, left hip, moderate s/p nondisplaced fracture of femur secondary to gunshot wound.

	3.  Chronic pain, mild on a daily basis, increasing to moderate severity with activity such as running climbing stairs, prolonged walking or standing, and heavy lifting, secondary to diagnoses #1 and #2.

	4.  Bilateral noise-induced high frequency hearing loss (meets retention standards).”

40.  The advisory opinion from the Office of The Surgeon General was provided to the applicant for comment.  The applicant submitted the following comments:

	“In paragraph 3 of the opinion it was stated Available medical documentation appears to support that [the applicant] met medical retention standards at the time of his retirement.  I believe that this assumption is based only on a review of VA records, and my civilian orthopedic medical records.  As my military records reveal, I was due my five-year periodic physical evaluation as of July 1999. I never received this evaluation.  Also I was supposed to have been referred Walter Reed Army Hospital, for an evaluation following the permanent profile that I received in October 1996. This was never done.  I was denied a separation physical at the time of my December 2000 discharge.  As records indicate, I never received any of the stated physical evaluations before my December 2000 discharge. I feel that only a military physical could have and would have accurately assessed my physical fitness for duty by Army standards. 

	Pertaining to the history of present illness section:  It's important that I disclose that the right knee anterior cruciate ligament tear and torn cartilage injury occurred during the Gulf War.  At the time of my Desert Storm Separation Physical, at Walson Army Hospital, Ft. Dix, New Jersey, I had mentioned the knee injury to the physician. I was reassured that the injury would heal in several months, and was then released.  Note:  The physician never referred me for an x- ray or an MRI. Had the full extent of my injury been know, I am certain that I would not have been discharged from active duty until the knee had been repaired. 

	On page 4, reference was made that I passed Army Physical Fitness tests since 1996, despite the profile. I would like to clarify this point, by stating that I performed an alternate PT event (2 1/2 mile walk) in lieu of the 2-mile run re: walk at own pace.  I did complete the event despite major discomfort.  It is important to reveal that after every one of these walks, my right knee would remain very swollen for approximately 5-7 days.  It was also mentioned in this section, that subsequent OER's suggest that I did satisfactorily perform in my position until my retirement.  I must make mention that over the last three years of my career, both my commander and Team OIC knew of my situation in reference to how I was struggling with my physical limitations.  In fact my commander would periodically ask me ask me how I was "holding up," while all the time verbally reassuring me that he was trying to expedite the MEB situation. Information and facts later proved this to be untrue.  I would speculate that it would have been a leap of logic for him to have made mention of my physical limitations in my evaluations, and then later have to justify why the MEB process had not been completed, from October 1996, until my mandatory removal/discharge in December 2000 (over 4-years later).  As background information, it is important to also note that the Line of Duty investigation (LOD), which was initiated in December 1998, was not completed until April 2000 (16 months later).  Following its completion, the LOD was misplaced by the 78th Division, and was not found until approximately late August 2000 (4 months later), and only after an inquiry from my congressman was made.  Because of this holdup, the MEB Process was not referred to West Point for processing, until September 2000, approximately 3-years, 11 months, after the MEB was first ordered in October 1996. 

	I request that the Army Review Board Agency rule in my favor to correct the above injustice by: 
		-Reinitiating the MEB process so that it may be completed.
		-Allowing me to have a separation physical evaluation. 
		-Allowing me to be seen by a military orthopedic specialist at Walter 	Reed Army Hospital, so that my physical limitations can be assessed for 	the MEB process. 
		-Return me to active reserve status until the separation physical 	evaluation, and the MEB process are completed.”

41.  Chapter 7 (Physical Profiling) of Army Regulation 40-501 (Standards of Medical Fitness) provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted.  Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES): 
P-physical capacity or stamina, U-upper extremities, L-lower extremities, 
H-hearing and ears, E-eyes, and S-psychiatric.  Numerical designator "1" under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.  Numerical designators "2" and "3" indicate that an individual has a medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military duty.  The individual should receive assignments commensurate with his or her functional capacity.  Numerical designator "4" indicates that an individual has one or more medical conditions or physical defects of such severity that performance of military duty must be drastically limited.  The numerical designator "4" does not necessarily mean that the individual is unfit because of physical disability as defined in Army Regulation 635-40.  

42.  Army Regulation 40-501 also states that to make a profile serial more informative, two modifiers are used: "P" (permanent) and "T" (temporary).  The "T" modifier indicates that the condition necessitating a numerical designator "3" or "4" is considered temporary, the correction or treatment of the condition is medically advisable, and correction will usually result in a higher physical capacity.  In no case will individuals in military status carry a "T" modifier for more than 12 months without positive action being taken either to correct the defect or to effect other appropriate disposition.

43.  Paragraph 7-8 of Army Regulation 40-501 provides for the establishment of Physical Profile Boards (PPBD).  The medical treatment facility commander will appoint the members of a PPBD which normally consists of two qualified profiling officers, one of whom must be a physician.  The regulation also requires that the profile must be approved by a physician who is designated the profile approving authority.  This paragraph also requires consideration by a PPBD under certain conditions among which is:  “Permanent revision of a soldier’s physical profile from or to a numerical designator 3 or 4.”

44.  Army Regulation 600-60 (Physical Performance Evaluation System) implements and establishes operating procedures to upgrade the physical quality of the Army and ensure that each soldier is physically qualified to perform in his or her primary military occupational specialty (MOS) or specialty code worldwide and under field conditions.  The regulation requires that any soldier with a permanent rating of “3” in any one of the physical profile serial (PULHES) factors must be referred to a MOS/Medical Retention Board (MMRB) to determine if that soldier is physically qualified to perform in his or her primary military occupational specialty (MOS) or specialty code worldwide and under field conditions.  However, the applicability paragraph of this regulation specifically states:

	“This regulation applies to all soldiers on active duty in the Army. It does not apply to Army National Guard (ARNG) and US Army Reserve (USAR) personnel ordered to active duty (AD) or active duty for training (ADT) for periods of 179 days or less to include full-time training duty under title 32 of the United States Code, or inactive duty training or ADT under authority of 10 USC 270(b). The PPES is binding on all echelons of command.  This regulation will take precedence over conflicting policies and procedures in the following publications: AR 40-66; AR 40-501; AR 600-200; AR 601-280; AR 640-2-1; AR 640-10; AR 140-111; AR 135-18; AR 135-91; AR 135-210; AR 135-215; NGR 600- 200; DA Pam 600-8, procedures 3-46 and 6-11; and DA Pam 600-8-10.” 

45.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), governs the evaluation for physical fitness of soldiers who may be unfit to their military duties because of physical disability.  This regulation applies to the Active Army, the Army National Guard and the U.S. Army Reserve.

46.  Paragraph 3-2b of Army Regulation 635-40 provides for retirement or separation from active service.  This provision of regulation states that disability compensation is not an entitlement acquired by reason of service incurred illness or injury; rather, it is provided to soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  The regulation also states that, when a soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the soldier is scheduled for separation or retirement creates a presumption that the soldier is fit.

47.  Paragraph 8-4 of Army Regulation 635-40 requires a commander to refer a soldier to the responsible medical treatment facility when the unit commander believes that soldier is unable to perform the duties of his or her office, grade, rank or rating because of physical disability.  This provision of regulation requires that the request will be in writing and will state the commander’s reasons for believing that the soldier is unable to perform his or her duties.  This paragraph also requires that commanders of Reserve units not on active duty will be guided by Army Regulation 40-501 (Standards of Medical Fitness) and chapter 8 of Army Regulation 635-40.

48.  Chapter 8 of Army Regulation 635-40 outlines the rules for processing soldiers of the Reserve Components who are on active duty for a period less than 30 days or inactive duty training (IDT).  Paragraph 8-6 governs the requirements for medical processing and states 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.  Conduct of the MEB and referral of the case to a PEB will be according to the procedures of chapter 4, Section III.  If the soldier is not eligible for referral to a PEB, the medical treatment facility will forward the MEB to the soldier’s unit commander for disposition under applicable regulations.  If eligible for referral to a PEB, the soldier may remain under control of the medical treatment facility with his or her consent during the disability processing.  If the PEB finds the soldier unfit, the soldier will remain under administrative control of the medical treatment facility pending receipt of the final decision.  If determined fit, the soldier will be returned to his or her duty station unless the training period has expired.  If the training period has expired, then the soldier will be permitted to return home.  The medical treatment facility commander where the MEB is held will notify the Reserve Component unit of the disposition of the soldier’s case.  

49.  Section 1204, Title 10, United States Code, provides that upon determination that a member of the armed forces not covered by section 1201, 1202, or 1203 of this title is unfit to perform the duties of his office, grade, rank or rating because of physical disability, the Secretary may retire the member with retired pay computed under section 1401 of this title if the Secretary determines that:  1) the disability is of a permanent nature and stable; 2) the disability (A) was incurred before 24 September 1996 as the proximate result of performing active duty or inactive duty training, traveling to or from the place where such duty is performed, or an injury, illness or disease incurred or aggravated immediately before commencement inactive duty training, while remaining overnight between periods of inactive duty training or in the vicinity of the inactive duty training site; or (B) is the result of injury, illness or disease incurred or aggravated in the line of duty after 23 September 1996 while performing active duty or inactive duty training, traveling to or from the place where such duty is performed, or an injury, illness or disease incurred or aggravated immediately before commencement inactive duty training, while remaining overnight between periods of inactive duty training or in the vicinity of the inactive duty training site;  3) the disability is not the result of the member’s intentional misconduct or willful neglect and was not incurred during a period of unauthorized absence; and 4) either (A) the member has at least 20 years computed under section 1208 of this title; or (B) the disability is at least 30 percent under the standard schedule of rating disabilities in use by the Department of Veterans Affairs at the time of the determination.

50.  Section 1208, Title 10, United States Code, provides that a member of the armed forces who is not a member of the regular component shall be credited, for the purposes of this chapter, with the number of years of service that he would count if he were computing his years of servoce under section 12733 of this title.  

51.  Section 12733, Title 10, United States Code provides that for the purpose of computing retired pay under this chapter, the person’s years of service and any fraction of such a year are computed by dividing 360 into the sum of the following:  1) The person’s days of active service;  2) The person’s days of full-time service under sections 316, 502, 503, 504, and 505, of Title 32 while performing annual training duty or while attending a prescribed course of instruction at a school designated as a service school by law or by the secretary concerned;  3) One day for each point credited to the person under clause (B), (C), or (D) of section 12732(a)(2) of this title but not more than 60 days in any one year of service before the year of service that includes September 23, 1996, and not more than 75 days in any subsequent year of service;  4) 50 days for each year before July 1, 1949, and proportionately for each fraction of a year, of service (other than active service) in a reserve component of an armed force, in the Army or the Air Force without component, or in any other category covered by section 12732(a)(1) of this title, except regular component.

52.  Chapter 8 of Army Regulation 40-501 governs medical examinations.  Paragraph 8-19 of this regulation states that a periodic medical examination is required for all officers, warrant officers, and enlisted personnel of the Army regardless of their component.  This paragraph requires that all members of the Ready Reserve not on active duty will be examined at least once each five years during the anniversary month of their last recorded medical examination.  Further, it also requires that all members of the Ready Reserves not on active duty will be screened annually for medical fitness, that this screening will be recorded on a DA Form 7349-R (Initial Medical Review-Annual Medical Certificate), and that a medical examination will be accomplished if review of this form indicates such an examination is clinically indicated.

53.  Chapter 8 of Army Regulation 40-501 also states that soldiers retiring from the Army “are required to undergo a medical examination prior to retirement.”  Requests for medical examinations will be submitted not earlier than four months nor later than one month prior to the anticipated date of retirement.

54.  Chapter 9 of Army Regulation 40-501 governs Army Reserve medical examinations.  Paragraph 9-9 states that Ready Reservists released from active duty or active duty for training must take their first periodic medical examination in accordance with paragraph 8-19c(4).  Further, the regulation states:  “Commanders will take proper action against obligated Ready Reservists who fail to take their required periodic examinations.”

55.  Title 10 United States Code, Section 14505 provides that an officer in the reserve grade of first lieutenant, captain or major who was considered but not recommended for promotion by two selection boards shall be transferred to the Retired Reserve if qualified and applies or shall be discharged from his reserve appointment if not qualified for transfer to the Retired Reserve.

56.  Army Regulation 135-155, paragraph 4-29, states that a member whose removal from active Reserve status is required by law must be removed within the prescribed time limits unless eligible for retention based on remaining obligated service or based on more than 18 years but less than 20 years service.

57.  Army Regulation 15-185 governs operations of the Army Board for Correction of Military Records (ABCMR).  Paragraph 2-5 of this regulation states that the ABCMR will not consider an application until the applicant has exhausted all administrative remedies to correct the alleged error or injustice.  

58.  Paragraph 2-11 of Army Regulation 15-185 states that applicants do not have a right to a hearing before the ABCMR.  The regulation provides that the Director of the ABCMR or the ABCMR may grant a formal hearing before which the applicant, counsel and witnesses may appear whenever justice requires.

CONCLUSIONS:

1.  The Board considered all of the applicant’s requests for relief, all of his contentions and all of the documentation submitted in support of his application.  The Board also reviewed in detail the comments he submitted in response to the ARBA Medical Advisor’s opinion and in response to the reconstructed medical examination (MEB) provided by the Office of the Surgeon General of the Army.

2.  In view of the applicant’s statement that the matter of his debt to the Government has been resolved, no action by the Board is required and this issue is not further discussed in these Proceedings.

3.  The Board also noted the applicant has filed a request for reconsideration of his promotion nonselection.  The request for reconsideration and the failure to submit his records for consideration by the CY 1998 DARCSB are currently under review by the Office of Reserve Component Promotions.  As a result, administrative relief is still available to the applicant and the Board will not consider requests for relief until all administrative remedies have been exhausted.  Therefore, the applicant is not entitled to consideration by this Board of matters pertaining to his OER with an ending date of 1 December 1999 and/or promotion reconsideration at this time.  If a matter of inequity, error or injustice still exists after his administrative remedies have been exhausted, then the applicant may make new application to the ABCMR for consideration of matters related to his OER with an ending date of 1 December 1999 and/or promotion reconsideration.

4.  The Board noted the applicant’s request for the name and telephone number of the ABCMR analyst preparing his case.  Based on policies governing the operations of the ABCMR, the applicant may call (703) 607-1600 to find out the status of his application and he may submit matters in writing to be considered by the Board.  The staff of the ABCMR does not discuss or provide information on cases under consideration.
5.  The Board noted that contrary to the applicant’s contention that he only sought follow-on care for his knee injury from the DVA, evidence of record shows that he filed a claim for disability compensation on 13 December 1995 for his knee condition.  Evidence of record also shows that, as of 20 March 2000, the applicant was rated 20 percent disabled for residuals of a gunshot wound to the left femur, 10 percent disabled for postoperative repair of the ACL in the right knee, and 10 percent for arthritis of the right knee.

6.  The Board noted that, effective 18 October 1996, the applicant received a permanent 3 (P-3) physical profile for lower extremities based on pain in his right knee related to a previous ACL reconstruction.  This profile was recommended by a PPBD and approved by the Deputy Chief of Clinical Services at Keller Army Hospital at West Point, New York.  The Board also noted that the PPBD recommended that the applicant be referred for evaluation by a MEB.  

7.  On 29 October 1996, the applicant’s battalion commander determined that this condition “may prevent [the applicant] from performing his duties at his current duty position.”  As a result, the battalion commander forwarded a request through the chain of command on 30 October 1996 for the applicant to undergo medical evaluation based on his permanent “3” profile.

8.  In response to the request for medical evaluation, the chain of command was advised by an official at the Fort Monmouth, New Jersey, MEDDAC that the applicant was not entitled to a MEB because there was no LODI in the applicant’s medical records.  The chain of command was further advised that the applicant was entitled to a MMRB to determine if he should be retained in his MOSC.

9.  Evidence of record shows that, on 19 December 1996, the applicant’s chain of command requested that a MMRB consider the applicant’s case.  There is no evidence that a MEB or a MMRB was ever conducted.

10.  Evidence of record shows that the applicant requested assistance from his chain of command and a Member of Congress several times throughout the period May 1997 to April 2000 to obtain a completed LODI.  However, the LODI was not finally approved until 28 April 2000.

11.  Evidence of record shows that the applicant received notification in August 2000 that he was considered for a second time, but not selected for promotion to major by a DARCSB.  As a result, the applicant was offered the options of being discharged prior to 1 February 2001 (his mandatory release date) or, if eligible, being transferred to the Retired Reserve.  Evidence of record shows that the applicant had received notification of eligibility for retired pay at age 60 in July 1999 and since he was eligible for non-regular retirement at age 60, he voluntarily elected transfer to the Retired Reserve.  
12.  Evidence of record shows the chain of command requested that the applicant undergo a MEB at Keller Army Hhospital at West Point, New York, in December 2000.  However, the PEBLO determined that the applicant was not entitled to disability processing because he was being processed for retirement at that time; therefore, there was a presumption that the applicant was fit. 

13.  Evidence of record shows that the applicant was scheduled for a retirement medical examination on 2 January 2001, but was a “no show” for that appointment.  However, there is evidence that the medical examination could not be conducted because the applicant’s medical records were still with the PEBLO at Keller Army Hospital at the time.  There is no evidence that the applicant has ever received a retirement physical examination.

14.  In view of the foregoing, the Board determined:

	a.  that the applicant was properly profiled by competent medical authority in October 1996 and that competent medical authority recommended an MEB;

	b.  that the applicant’s battalion commander determined this profile interfered with performance of duty and the applicant should be entered into physical disability processing through consideration by a MEB;

	c.  that officials at the servicing MEDDAC erroneously advised the applicant could not undergo a MEB because there was no LODI for a knee injury in his records and erroneously advised he was entitled to review by a MMRB; 

	d.  that, although obligated to do so by regulation, the applicant failed to undergo a periodic medical evaluation in July 1999 and his chain of command failed to assure his compliance as required by regulation;

	e.  that the applicant was considered but not selected by two DARCSB’s for promotion and was properly advised of his separation options by 
AR-PERSCOM;

	f.  that he elected transfer to the Retired Reserve effective 31 December 2001 and was properly transferred to the Retired Reserve on that date; and

	g.  that, although scheduled for a retirement medical examination on 2 January 2001, the physical examination could not be conducted through no fault of the applicant because his records were not available at the time.

15.  The Board concluded that, had the applicant and his chain of command not been erroneously advised on his eligibility for a MEB and a MMRB, then the right knee condition of the applicant might have been properly evaluated by a MEB in late 1996;
16.  The Board also concluded that, had the investigating officer for the LODI been more responsive and had the chain of command placed a priority on timely completion of the LODI, then the applicant would have been eligible for consideration by a PEB if the MEB determined that his medical condition warranted presentation to a PEB and this disability processing would have been completed well before his nonselections for promotion to major and his resulting transfer to the Retired Reserve.

17.  The Board found that, in the absence of separation for physical disability prior to two-time nonselection for promotion, the applicant was properly transferred to the Retired Reserve effective 31 December 2000 in accordance with his own election.

18.  The Board also found, however, that the lengthy delay between recognition of the medical condition affecting the applicant’s right knee in October 1996 and referral of the applicant for consideration by a MEB as late as November 2000 was the result of bad advice and inaction by the chain of command, not solely the fault of the applicant.  Therefore, the applicant was treated inequitably by the chain of command in regard to his medical condition and lost an opportunity for evaluation of his right knee condition by military medical professionals with possible referral for disability processing.

19.  In view of these matters, the staff of the ABCMR requested that the Office of The Surgeon General of the Army conduct a reconstructed medical examination (MEB) based on the available service, DVA, and civilian medical records.  That reconstructed medical examination (MEB) was conducted and four conditions were diagnosed.  As a result, the MEB recommended that the applicant undergo a military medical examination at this time.  Therefore, the Board has determined that the applicant should be provided an opportunity to undergo a military medical examination to include examination by military specialists, if necessary.  Further, the Board has determined that, upon completion of that military medical examination, then all of the applicant’s service personnel and all of the applicant’s military, DVA and civilian medical records be referred the U.S. Army Physical Disability Agency for consideration by a PEB.  

20.  The Board also considered the applicant’s request for reinstatement in the USAR.  However, there is no necessity to reinstate the applicant to an active status in the USAR to accomplish medical examinations.  Additionally, there is no 
basis to reinstate the applicant to an active reserve status in view of his transfer to the Retired Reserve based on two-time nonselction for promotion and his currently active request for promotion consideration.

21.  In view of the foregoing findings and conclusions, it would be appropriate to correct the applicant’s records, but only as recommended below.

RECOMMENDATION:

1.  That the Commander of AR-PERSCOM offer the individual concerned the opportunity to undergo a military medical examination, to include examination by military medical specialists, if necessary.

2.  That, if the individual concerned accepts this offer, then the Commander of AR-PERSCOM coordinate this medical examination and publish and fund appropriate travel orders to accomplish this medical examination and if required, evaluation by appropriate military medical specialists.

3.  That, upon completion of the military medical examination recommended by the MEB, then the individual concerned be presented to a PEB.  

4.  That, in the event that the individual concerned becomes eligible for disability retirement, then he should be briefed on his options, particularly since he is already eligible for non-regular retired pay at age 60, and be allowed to elect that option most beneficial to him.

5.  That, in the event the individual concerned is retired by reason of disability, then his retirement date is established as 31 December 2000 (the date of his transfer to the Retired Reserve) and he is paid all back pay and allowances to which he is entitled from that date.  

6.  That, in the event the PEB finds the individual concerned fit for retention, then his current status in the Retired Reserve remains unchanged.

7.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__WTM__  __JHL__  __RWA__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__Ms. Joann H. Langston__
		        CHAIRPERSON

INDEX

CASE ID	AR2001053136	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020314	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT )	
REVIEW AUTHORITY	MR SCHNEIDER	
ISSUES         1.	108.0000.0000	
2.	177.0000.0000	
3.		
4.		
5.		
6.