MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 11 July 2002
         DOCKET NUMBER: AR2002069837

         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. Edmund P. Mercanti		Analyst

The following members, a quorum, were present:

Mr. Ted S. Kanamine		Chairperson
Mr. John T. Meixell		Member
Mr. Harry B. Oberg		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)

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APPLICANT REQUESTS: In effect, that his orders placing him on the temporary Disability Retired List (TDRL), his DD Form 214 (Certificate of Release or Discharge), his DA Form 199 (Physical Evaluation Board [PEB] Proceedings) and his retirement orders, all be amended to show that his disability was a direct result of armed conflict.

APPLICANT STATES: In effect, that Public Law (PL) 105-277 provided that solders who served in the Persian Gulf during the Persian Gulf War, who were disabled from conditions which cannot be diagnosed or defined, would have their disability considered to be a result of Persian Gulf War Syndrome. Since his disability fits the criteria for classification as Persian Gulf War Syndrome, his disability should have been classified as a direct result of armed conflict.

In support of his application he submits selected copies of his military health records, Department of Veterans Affairs evaluations, and Social Security Administration decisional documents as well as his DD Form 214.

EVIDENCE OF RECORD: The applicant's military records could not be located. The following information was derived from documents provided by the applicant, himself.

He enlisted in the Regular Army on 4 April 1983, was awarded the military occupational specialty of food service specialist, and was promoted to pay grade E-6. He served as a cook in Southwest Asia from 25 September 1990 to 26 March 1991.

On 18 November 1993, the applicant was the subject of a Medical Evaluation Board (MEB). The MEB determined that the applicant suffered from atopic dermatitis, moderately severe, poorly controlled (approximate date of origin 1991), and cluster variant headache (complicated migraine) (approximate date of origin 1987), and recommended that he be referred to a PEB. The applicant agreed with the MEB’s findings and recommendation.

On 26 July 1994, the applicant was the subject of a PEB, which determined that he was physically unfit due to migraine with aura (30 percent disabling) and atopic dermatitis, moderately severe, poorly controlled (10 percent disabling). The PEB also determined that the applicant’s disability did not result from a combat related injury as defined in 26 U.S.C. 104. The PEB recommended that the applicant be placed on the TDRL, rated 40 percent disabled.

That recommendation was approved and the applicant was honorably discharged on 12 October 1994 and placed on the TDRL the following day.



On 25 November 1998, the applicant had a periodic TDRL physical examination dictated. That examination determined that the applicant continued to have frequent headaches.

On 11 January 1999, the applicant had an addendum to his periodic TDRL physical examination dictated. In that examination the applicant was said to present symptoms of moderate post-traumatic stress disorder (PTSD).

On 22 March 1999, the applicant was again considered by a PEB, which determined that he was physically unfit due to migraine headaches (30 percent disabling) and xerotic eczema (Abnormal dryness of the skin or mucous membranes) (10 percent disabling). The PEB commented that “Only these conditions for which soldier was placed on the TDRL can be rated, therefore, PTSD is not a ratable condition.” The PEB recommended that the applicant be permanently retired due to physical unfitness. (The orders effecting the applicant’s discharge from the TDRL and placement on the retired list are not included in the documents provided by the applicant.)

Guidance provided to the Board from the Physical Disability Agency (PDA) specifies that a disability or injury is considered to be a “direct result of armed conflict” if the injury or disease was incurred while the soldier was engaged in armed conflict, an operation or incident, involving armed conflict or the likelihood of armed conflict, while interred as a prisoner of war or detained against their will in the custody of a hostile or belligerent force, or while escaping or attempting to escape from such prisoner of war or detained status. The disability must also be based upon a direct causal relationship between the armed conflict, operation, prisoner of war, or detained status and the injury. This is not a casual connection or just having something occur to the soldier while in an area of armed conflict or hostilities. Normally, soldiers who sustain injuries while assigned to administrative, supply, or other support duties in the rear area are not considered to be in the area of combat operations unless the injury is actually incurred during an enemy attack in the immediate area. There must be a direct cause and effect between the “armed conflict” and the disability.

Two public laws were passed to address medical conditions that cannot be diagnosed or defined in Persian Gulf War veterans. These were the Veterans Programs Enhancement Act of 1998 (Public Law 105-368) and the Persian Gulf War Veterans Act of 1998 (Public Law 105-277). Each law mandated studies similar to the study already agreed upon by the Department of Veterans Affairs. These laws detailed several comprehensive studies on veterans’ health and




specified numerous biological and chemical hazards that may potentially be associated with the health of Gulf War veterans.

Army Regulation 635-40, the regulation which governs PEB’s, provides that members who do not meet medical retention standards will be referred to a PEB for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition. For example, a noncommissioned officer who receives above average evaluation reports and passes the Army Physical Fitness Tests (which have been modified to comply with the individual’s physical profile limitations) after the individual was diagnosed, as having the medical disqualification would probably be found fit for duty.  The fact that the individual has a medically disqualifying condition does not mandate the person’s separation from the service. Fitness for duty, within the parameters of the individual’s grade and military specialty, is the determining factor in regards to separation. If the PEB determines that an individual is physically unfit, it recommends the percentage of disability to be awarded which, in turn, determines whether an individual will be discharged with severance pay or retired. Chapter 7 of this regulation provides the policy and procedures for individuals assigned to the TDRL. Paragraph 7-11 states, in effect, that disabilities incurred while an individual is assigned to the TDRL cannot be rated by a PEB considering the soldier for termination of TDRL status.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, it is concluded:

1. It would appear that the applicant is unclear on what is classified as a direct result of armed conflict. As explained by the PDA, it is not a casual connection to combat or just having something occur to the soldier while in an area of armed conflict or hostilities.

2. Therefore, while the applicant may suffer from Persian Gulf War Syndrome, that would not be considered to be a direct result of armed conflict.

3. However, whether or not Persian Gulf War Syndrome would be considered a direct result of armed conflict is a moot point. The applicant was not placed on the TDRL or retired for Persian Gulf War Syndrome. He was retired for migraine headaches, which had their inception prior to the Persian Gulf War, and xerotic eczema.






4. In view of the preceding, 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:

___jtm__ ____tsk__ ____hbo _ GRANT

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION

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

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INDEX

CASE ID	AR2002069837
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020711
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.	108.07
2.
3.
4.
5.
6.