IN THE CASE OF:	  

		BOARD DATE:	  26 February 2009

		DOCKET NUMBER:  AR20080018014 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, correction of her records to show she was medically retired instead of honorably discharged for physical disability.  The applicant also requests retroactive retirement pay and reimbursement for the medical and legal expenses she has incurred as a result of the injury she sustained while serving on active duty back in 1984.  The applicant further requests copies of the clinical records documenting the treatment she received while hospitalized at the Moncrief Army Community Hospital and the Walter Reed Army Medical Center

2.  The applicant states, in effect, that her percentage of disability should be increased from 10 percent to a higher rating and she should be medically retired.
She adds that she has lost thousands of dollars in attorney fees, court costs, filing fees, medical costs, and other expenses stemming from a hip replacement surgery that she underwent.  The applicant states that the injury she sustained at Fort Jackson, South Carolina was caused by two noncommissioned officers and further exacerbated by medical malpractice during the treatment she received at the Moncrief Army Community Hospital located at Fort Jackson and the Walter Reed Army Medical Center located in Washington, D.C.

3.  The applicant provides a self-authored statement; a DA Form 3947 (Medical Evaluation Board (MEB) Proceedings); two DA Forms 199 (Physical Evaluation Board (PEB) Proceedings); orders placing her on the Temporary Disability Retired List (TDRL); a DD Form 214 (Certificate of Release or Discharge from Active Duty); and 61 pages of bills, receipts, and cancelled checks documenting her expenses in support of this application.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant’s records show she enlisted in the Army Reserve Delayed Entry Program (DEP) on 25 May 1984.  She was discharged from the DEP and enlisted in the Regular Army on 15 August 1984.  The applicant was assigned to Fort Jackson to attend the Basic Combat Training Course as part of her initial entry training.

3.  A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 26 October 1984, shows that the applicant was running during the two-mile event portion of the Army Physical Fitness Test on 6 October 1984, when she felt pain in her right leg.  She was sent on emergency sick call, issued a physical
limitations profile, and returned to her unit.  On 7 October 1984, the applicant still felt intense pain, so she was sent on sick call again and was subsequently admitted to Moncrief Army Community Hospital with a fractured hip.

4.  The applicant's attending physician rendered a Standard Form 502 (Clinical Record - Narrative Summary) that shows the applicant was admitted to Moncrief Army Community Hospital on 7 October 1984 with an initial diagnosis of a right femoral neck fracture, non-displaced, without major artery or nerve involvement.  The physician states the applicant had complained of right hip pain for five days which was being evaluated by the Troop Medical Clinic as muscle strain and treated with anti-inflammatory medication.  The applicant, however, continued to experience pain and on the day prior to admission, while running during the two-mile event portion of the Army Physical Fitness Test, she heard a "pop" of her right hip and experienced sudden pain and inability to ambulate.  The applicant was then transferred to the emergency room and X-rays revealed a right femoral neck fracture.  On 9 October 1984, the applicant underwent a surgical procedure 
which included open reduction and internal fixation with Knowle's pins, five of 

which were placed in, with adequate stabilization of the fracture.  The physician noted that at present the applicant was doing fine.  He also noted the external wound was essentially healed; however, he opined the applicant would almost certainly have a long term prognosis of femoral neck fracture of the right hip with avascular necrosis (a disease resulting from the temporary or permanent loss of the blood supply to the bones).  The physician recommend that the applicant be presented to the MEB for evaluation and disposition under the provisions of Army Regulation 40-501 (Standards of Medical Fitness).  The physician further recom-mended that the applicant continue follow-up with a medical facility with possible removal of the pins a year from the surgical date; and a possible arthroplasty (arthroplasty is a type of hip replacement that replaces the arthritic surface of the joint but removes far less bone than the traditional total hip replacement) for avascular necrosis.  The physician opined that the applicant would have long term difficulties with this fracture with limitation of motion as well as function and possible need of arthroplasty in the near future.

5.  A DA Form 199, dated 5 November 1984, shows that on 5 November 1984, an MEB convened at Moncrief Army Community Hospital and determined that the applicant was medically unfit for duty due to her right femoral neck fracture, non-displaced, without major artery or nerve involvement.  It was determined that the injury was incurred while the applicant was entitled to base pay and did not exist prior to her service.  The MEB referred the applicant to a PEB for further evaluation and disposition.  The applicant indicated that she did not desire to continue on active duty under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) and agreed with the MEB’s findings and recommendation.

6.  A DA Form 199, dated 29 November 1984, shows that on 29 November 1984, an informal PEB convened at Fort Gordon, Georgia, and found the applicant's condition prevented her from performing her duties and determined that she was physically unfit due to a healing fracture of the right femoral neck, ORIX (open reduction and internal fixation), rated as nonunion without loose motion, which required the use of crutches.  The PEB also determined that the applicant's medical condition did not exist prior to military service.  The applicant was evaluated using the Veterans Administration (now the Department of Veterans Affairs (DVA)) Schedule for Rating Disabilities (VASRD) code 5255 (impairment of the femur) and recommended a disability rating of 60 percent.  The PEB also recommended the applicant be placed on the TDRL with reexamination during the month of July 1985.  The back page of the DA Form 199 is blank and there is no indication whether the applicant concurred or non-concurred with the PEB’s findings and recommendation.


7.  U.S. Army Military Personnel Center, Alexandria, Virginia, Orders D233-6, dated 18 December 1984, relieved the applicant from assignment and duty because of physical disability incurred while entitled to basic pay and under conditions which permit her placement on the TDRL.  The effective date of retirement was 2 January 1985 and the applicant was placed on the TDRL on 3 January 1985 in the grade of private (PV1)/pay grade E-1, with a disability rating of 60 percent.  Accordingly, the applicant's DD Form 214 shows she was separated from active duty on 2 January 1985 after having served a total of 4 months and 18 days of creditable active service.

8.  A DA Form 199, dated 24 December 1985, shows that on 24 December 1985, an informal PEB convened in Washington, D.C., as part of the applicant's periodic TDRL medical reevaluation and found her condition still prevented her from performing her duties and determined that she was physically unfit due to a healing fracture of the right femoral neck, status post open reduction and internal fixation.  The PEB also determined that the applicant's medical condition had not stabilized to the point that a permanent degree of severity could be determined.  The applicant was evaluated using the VASRD code 5255 during this evaluation.
The PEB recommended the applicant be retained on the TDRL with a follow-up
reexamination during the month of January 1987.  The back page of the DA Form 199 is blank and there is no indication whether the applicant concurred or did not concur with the PEB’s findings and recommendations.

9.  U.S. Army Physical Evaluation Board, Walter Reed Army Medical Center, letter, dated 27 December 1985, shows the Alternate Board Recorder advised the applicant that the U.S. Army PEB had reevaluated her physical condition and recommended that she be retained on the TDRL with reexamination during the month of January 1987.  The Alternate Board Recorder further advised the applicant that this recommendation would result in her disability rating remaining unchanged and that no appeal of these proceedings was authorized.

10.  A Standard Form 502 (Medical Record - Narrative Summary (Clinical Resume)), dated 8 March 1988, restates the circumstances of the applicant's injury and her initial surgical procedure.  This form also shows the applicant underwent a subsequent surgical procedure at Walter Reed Army Medical Center in March 1985.  The examining physician noted that the applicant had improved steadily since that time and was working part-time as a computer operator at a civilian hospital.  The examining physician also noted that the applicant's condition at the time was satisfactory and she was without complaints of pain or disability except occasional right hip pain, mostly when the weather changed.  The physical examination revealed that the applicant had no acute 

distress and a normal gait.  The applicant did not walk with the assistance of a cane or crutches.  The examining physician noted that although there was a reduced amount of internal rotation, external rotation was within normal parameters and there was no grinding, pain, or tenderness with full range of motion.  The final diagnosis was status post stress fracture, right femoral neck, with an initial repair, followed by revision, now healed, with occasional ache in minimal limitation of motion.  The examining physician opined that the applicant's condition had reached a plateau and he did not expect her status to improve.  He further opined that considering the degree of the fracture and the need for revision, it would be unlikely that the applicant could participate in the rigors of active duty, and recommended she be removed from the TDRL and separated from the Army.

11.  U.S. Army Medical Department Activity, Fort George G. Meade, Maryland, memorandum, dated 26 April 1988, shows that on 5 May 1988, the applicant acknowledged being informed of the hospital's findings and recommendation in her case, concurred with them, and had no desire to appeal.

12.  A DA Form 199, dated 18 May 1988, shows that an informal PEB convened at Walter Reed Army Medical Center to reevaluate the applicant's medical condition as part of the applicant's periodic TDRL medical reevaluation.  The applicant was evaluated using VASRD code 5299-5003 (degenerative arthritis, status post stress fracture, right femoral neck, with an initial repair, followed by revision, now healed, with occasional ache, in minimal limitation of motion).  The PEB considered the applicant's condition to have improved so as to be ratable at less than 30 percent.  The PEB informed the applicant that a revised disability rating of 10 percent more accurately reflected the current degree of severity of her medical condition.  The PEB further informed the applicant that ratings of less than 30 percent for Soldiers with less than 20 years retirement service require separation with severance pay in lieu of retirement.  The PEB found the applicant's condition prevented her from performing her duties and determined that she was still physically unfit for continued service.  The PEB recommended the applicant be awarded a combined disability rating of 10 percent and that she be separated from the service with severance pay if otherwise qualified.  The back page of the DA Form 199 shows that on 29 May 1988, the applicant did not concur with the PEB’s findings and recommendations and demanded a formal hearing without her personal appearance.


13.  The applicant's record contains a handwritten statement which, in effect, shows she disagreed with the findings of the PEB based upon her understanding that if anything happened to her hip in the future, she would not be covered medically by the Army, would have to utilize a civilian hospital, and pay the medical costs.  The applicant also stated that when she was examined at Walter Reed Army Medical Center, she was informed that she would probably need to have hip replacement surgery at a future date.

14.  U.S. Army Physical Evaluation Board, Walter Reed Army Medical Center, letter, dated 9 June 1988, shows the Board Recorder informed the applicant that a formal PEB hearing of her case without her personal appearance was scheduled for 1 July 1988.  The Board Recorder also informed the applicant that regular military counsel had been appointed to advise her in the preparation of her case and provided contact information for captain (CPT) D___d C. W___e and CPT A_____y F. P____o if she desired legal assistance.

15.  DA Form 751 (Telephone or Verbal Conversation Record), dated 17 June 1988, shows the applicant contacted CPT D___d C. W___e seeking legal counsel on 17 June 1988.  This form also shows that following their conversation, the applicant agreed with the findings of her informal PEB which was held on 18 May 1988 and requested to withdraw her 29 May 1988 request for a formal PEB hearing which was subsequently scheduled to convene on 1 July 1988.

16.  U.S. Army Military Personnel Center, Alexandria, Orders D129-14, dated 7 July 1988, removed the applicant from the TDRL and discharged her from the Army because of permanent physical disability.  The effective date of discharge was 21 July 1988 and the applicant was awarded a disability rating of 10 percent.
This order also informed the applicant that she was entitled to severance pay provided she had completed over 6 months active service.

17.  Walter Reed Army Medical Center, Walter Reed Health Care System, letter, dated 14 May 2001, shows the Supervisor of the Special Actions Branch Medical Records Administration Division, informed the applicant that her medical records had been retired to a centralized federal record storage facility and provided her the mailing address and telephone number so she could contact the facility regarding her medical information.  The address and telephone number for the record storage facility have changed since the date of this letter and will be provided below.


18.  Clinical/Hospital inpatient records for military personnel while on active duty are compiled when Soldiers are actually hospitalized while in the service.  An overnight stay or admission generally makes a patient an inpatient.  The resulting records from hospital care are called either clinical or inpatient records.  Clinical (inpatient) records are filed at the National Personnel Records Center (NPRC), 
Military Personnel Records, 9700 Page Avenue, St. Louis, MO 63132-5100, by the name of the hospital in which the member was treated.  Therefore, NPRC needs the name of the hospital, month, and year of treatment, as well as the Veteran's name and social security or service number to locate a clinical record.  The telephone number for record inquiries is 314-801-0800.

19.  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 Army Regulation 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.

20.  Paragraph 4-20 of Army Regulation 635-40 states, in pertinent part, that if a Soldier nonconcurs with the findings and recommendation with a statement of rebuttal and demands a formal hearing, the PEB may reconsider their findings and recommendation in light of the Soldier’s statement of rebuttal.  Should the PEB agree with the Soldier and modify their findings and recommendation, the PEB will initiate a new DA Form 199 informing the Soldier of the results.  If the Soldier then concurs, the case will be processed; otherwise, the case will be scheduled for a formal hearing.

21.  Paragraph 4-21 of Army Regulation 635-40 states, in pertinent part that a Soldier is entitled to a formal hearing if requested after informal consideration by a PEB.  The Soldier may waive this right by concurring with the findings and recommendation of the informal board.  If the Soldier demands a formal hearing, 
he or she is entitled to counsel.  An Army attorney will be appointed as counsel to represent Soldiers at formal PEB hearings.  The attorney will not be a voting member of the PEB or an advisor to the PEB, but will represent the Soldier as required when the Soldier requests a formal hearing.  The attorney will counsel the Soldier until formal disability proceedings are completed.


22.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rating at less than 30 percent.  

23.  Department of Defense Instruction 1332.39, dated 14 November 1996, in pertinent part, provides that each major joint (or grouping of minor joints) with objective limitation of motion plus radiographic evidence of degenerative arthritis is rated at 10 percent.

24.  The VASRD is the standard under which percentage rating decisions are to be made for disabled military personnel.  The VASRD is primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  The VASRD gives code 5003 (degenerative arthritis) a 10 percent disability rating with X-ray evidence and limitation of motion objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her records should be corrected to show she was medically retired instead of honorably discharged for physical disability; that she should be paid retroactive retirement pay and reimbursement for the medical and legal expenses she has incurred as a result of the injury she sustained while serving on active duty back in 1984; and that she should be provided copies of her medical records documenting the treatment she received at the Moncrief Army Community Hospital and the Walter Reed Army Medical Center.

2.  The evidence of record shows that the applicant suffered from a medical condition that rendered her unable to satisfactorily perform the duties of her grade and specialty.  Consequently, her records were evaluated by an MEB that referred her to a PEB.  The applicant concurred with the MEB's findings and recommendation and indicated that she did not desire to continue on active duty.

3.  The applicant's medical condition was evaluated by a PEB that found her medically unfit, rated her disabling condition at 60 percent, and recommended she be placed on the TDRL by reason of physical disability with the understanding that her medical condition would be reevaluated on a periodic basis in order to determine a permanent disposition in her case.  

4.  The record shows that following her second surgery, the applicant's medical condition steadily improved to a point that she regained the vast majority of her motion in her hip, walked with a normal gait, and only experienced pain on an occasional basis.  The applicant's final PEB determined that although her medical condition still rendered her unfit for continued military service, it had improved to a point that a disability rating of 10 percent was more appropriate for her present situation.  Although the applicant initially did not concur with the findings and recommendation of the final PEB, the record shows she changed her mind, concurred with the findings, and requested withdrawal of her request for a formal PEB.

5.  The VASRD is used by the DVA and the Army primarily as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  Unlike the DVA, the Army must first determine whether a Soldier is fit to reasonably perform the duties of his or her office, grade, rank, or rating.  The medical evidence of record supports the determination that the applicant's unfitting condition was properly diagnosed and that her disability was properly rated in accordance with the VASRD.  Her separation for disability was in compliance with law and regulation.

6.  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 this requirement.

7.  In view of the foregoing, the applicant is not entitled to retroactive retirement pay or reimbursement for the medical and legal expenses she has incurred over the years.

8.  The applicant should request copies of the clinical records documenting the treatment she received while hospitalized at the Moncrief Army Community Hospital and the Walter Reed Army Medical Center from NPRC by accessing 
their Internet website at http://www.archives.gov/st-louis/; by writing them at National Personnel Records Center, Military Personnel Records, 9700 Page Avenue, St. Louis, MO 63132-5100; or by calling 314-801-0800.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x_____  __x_____  ___x____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      ___________x____________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080018014



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ABCMR Record of Proceedings (cont)                                         AR20080018014



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