MEMORANDUM OF CONSIDERATION


                  IN THE CASE OF:
        


                  BOARD DATE: 4 November 2003
                  DOCKET NUMBER: AR2003088400

         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
Mrs. Nancy L. Amos		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Ms. Gail J. Wire		Member
Mr. Antonio Uribe		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: Through counsel, that he be recalled to active duty for the purpose of conducting a medical evaluation board (MEB); that he be awarded back pay and allowances less civilian earnings as appropriate; that his subsequent retirement upon attaining 20 years service be void; that he be determined to be unfit by reason of disability and medically retired; that his effective retirement date be the date the Board acts favorably upon this petition; and that any and all other relief be awarded as the Board may deem appropriate.

APPLICANT STATES: The applicant defers to counsel.

COUNSEL CONTENDS: That the applicant suffered an injury while on active duty pursuant to his active duty/special work (ADSW) orders that should have resulted in his being processed through the physical evaluation board (PEB) system. On 16 February 1996, the medical command servicing his Reserve unit found that he was not physically qualified for worldwide deployment and recommended he be evaluated for a referral to an MEB. However, there is no indication in the record to show that this recommendation was ever acted upon by his parent command. Although the applicant's injury was initially characterized as a mild stroke, the applicant was later seen by a civilian neurologist who had been treating him for a previous history of migraine headaches. That civilian neurologist diagnosed the applicant with multiple sclerosis (MS) and provided the nexus between his injuries in August 1994 and the subsequent diagnosis in a letter to the applicant's command dated 2 November 1995.

As supporting evidence, counsel provides a letter from the 309th Combat Support Hospital dated 16 February 1996; active duty orders; 15 pages of pay records; extracts from the applicant's service medical records; portions of the applicant's civilian medical records; and a letter dated 2 November 1995 from Doctor L___.

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

The applicant was born on 4 December 1947. After having prior enlisted service, he was commissioned in the U. S. Army Reserve (USAR) as a Military Intelligence officer and entered active duty on 25 September 1970. He was released from active duty on 21 January 1981. He was promoted to lieutenant colonel in the USAR on 23 September 1989 as a Military Intelligence officer.

The applicant underwent an MRI (magnetic resonance imaging) on 10 September 1991 (apparently as a follow-up to a CT scan performed for a complaint of increasing headaches while he was on active duty in August 1991). The MRI led to the impression of multiple non-specific T2 bright white matter foci which could represent foci of gliosis, ischemic disease, or demyelination.

The applicant's notification of eligibility to receive retired pay at age 60 (his 20-year letter) is dated 9 November 1991.

On or about 6 June 1994, the applicant was ordered to active duty for training (ADT) for about 33 days. His ADT orders were later amended to read for a period of about 68 days, later amended again to read for a period of about 117 days, later amended again to read for a period of about 139 days, and amended later still for a final time to read for a period of about 171 days.

On 4 August 1994, the applicant was admitted to Dewitt Army Community Hospital, Fort Belvoir, VA after presenting symptoms of a mild stroke (relatively acute onset of mild weakness and numbness in the left arm and leg). He was discharged on 8 August 1994 with a diagnosis of stroke with a history of migraine headaches.

The applicant received follow-up screening at Walter Reed Army Medical Center as a recent stroke syndrome suspect. An MRI was performed on 10 September 1994. The findings of the MRI were suggestive of vessel-related abnormalities; however, white matter infarct had to be considered in the differential diagnosis.

The applicant had a further follow-up visit with his civilian physician, Doctor L___, on 11 January 1995. In his office notes for this visit, Doctor L___ indicated his impression was that the applicant probably had MS.

Per request of the Physical Exam Section, 309th Field Hospital, Doctor L___ provided his evaluation of the applicant's physical fitness for military duty in a letter dated 2 November 1995. Doctor L___ stated that since the applicant's initial attack in August 1994 he had suffered no further attacks. He retained virtually full neurologic function. He held down a full-time job as a computer systems design engineer, putting in about 40 to 50 hours per week and was performing at peak levels. His only recurring MS symptoms were mild fatigue and decreased tolerance of physical labor particularly during hot or humid weather. He believed the applicant was fully capable of performing his duties as an Army military intelligence officer as long as he was not required to perform strenuous physical activities or manual labor.

By memorandum for the Command Surgeon, 94th Regional Support Command dated 16 February 1996, the Chief of Professional Services, 309th Combat Support Hospital recommended the applicant be referred to an MEB. The memorandum cited Doctor L___'s assessment of the applicant's capacity to perform his military duties but also noted that the applicant was apparently scheduled for a Bosnia mission during which he might be subject to physical stress. In addition, it was noted that the new Army Regulation 40-501 stated that MS independent of the current functional capacity of the soldier was a cause for referral to an MEB.
The response of the Command Surgeon. 94th Regional Support Command to the 16 February 1996 memorandum is not available.

The applicant's Retirement Points History Statement shows that he earned 187 retirement points during retirement year ending (RYE) 7 April 1995, 15 (membership) points during RYE 7 April 1996, 52 points during RYE 7 April 1997, 83 retirement points for RYE 7 April 1998, 15 (membership) points for RYE 7 April 1999, and he was apparently separated from the active Reserve on 8 July 1999.

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

Army Regulation 635-40, paragraph 3-1 states that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the soldier reasonably may be expected to perform because of his or her office, grade, or rank. It states that although the ability of a soldier to reasonably perform his duties in all geographic locations under all conceivable circumstances is a key to maintaining an effective and fit force, this criterion will not serve as the sole basis for a finding of unfitness.

Army Regulation 635-40, paragraph 3-2 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. 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 a soldier is fit. Application of the rule does not mandate a finding of fit. The presumption is rebuttable and is overcome when the preponderance of evidence establishes the soldier was physically unable to perform adequately the duties of his or her office, grade or rank.

Army Regulation 635-40, paragraph 4-7 states that commanders of medical treatment facilities who are treating soldiers may initiate action to evaluate the soldier's physical ability to perform the duties of his or her grade or rank. Paragraph 4-9 states that the medical treatment facility commander having primary medical care responsibility will conduct an examination of a soldier referred for evaluation. The commander will advise the soldier's commanding officer of the results of the evaluation and the proposed disposition. If it appears the soldier is not medically qualified to perform duty, the medical treatment facility commander will refer the soldier to an MEB.

Army Regulation 635-40, paragraph 4-10 states that MEBs 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 qualification for retention based on the criteria of 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.

Army Regulation 635-40, paragraph 4-11 states that the Narrative Summary to the MEB is the heart of the disability evaluation system. In describing a soldier's conditions, a medical diagnosis alone is not sufficient to establish that the individual is unfit for further military service. A correlation must be established between the soldier's medical defects and physical capabilities. The date of onset of a medical impairment may be questionable because of the nature of the impairment.

Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, appointment, retention, and separation, including retirement. Chapter 3 gives the various medical conditions and physical defects which may render a soldier unfit for further military service. Paragraph 3-3 states that soldiers with conditions listed in this chapter who do not meet the required medical standards will be evaluated by an MEB and will be referred to a PEB with certain caveats including: Reserve component soldiers not on active duty, whose medical condition was not incurred or aggravated during an active duty period, will be processed in accordance with chapter 9 of this regulation and will not be referred to a PEB and soldiers will not be referred to an MEB or PEB because of impairments which were known to exist at the time of acceptance in the Army and which have remained essentially the same in degree of severity and have not interfered with successful performance of duty.

Army Regulation 40-501, paragraph 3-30e states that MS, optic neuritis, transverse myelitis, and similar demyelinating disorders are causes for referral to an MEB. Paragraph 3-30f states that stroke, including both the effects of ischemia and hemorrhage, when residuals affect performance of duty, is a cause for referral to an MEB.

Army Regulation 40-501, paragraph 9-13 states that, normally, Reservists who do not meet the fitness standards set by chapter 3 will be transferred to the Retired Reserve or discharged.

The National Institutes of Health internet site medlineplus.gov revealed that demyelination is the term used for a loss of myelin, a substance in the white matter that insulates nerve endings. When nerve endings lose this substance they cannot function properly, leading to patches of scarring, or ‘sclerosis’, occurring where nerve endings have lost myelin. It is these areas of scarring that give multiple sclerosis its name. There are no laboratory tests, symptoms, or physical findings that can, themselves, determine if a person has MS. Furthermore, there are many symptoms of MS that can also be caused by other diseases. The long-established criteria for diagnosing MS are: (1) there must be objective evidence of two attacks (i.e., two episodes of demyelination in the central nervous system; (2) the two attacks must be separated in time (at least one month apart) and space (inflammation and/or damage in different areas of the central nervous system); and (3) there must be no other explanation for these attacks or the symptoms the person is experiencing. Some reports suggest that people with MS have an increased incidence of certain types of headache. One report noted that migraine headaches were more than twice as common in a group of MS patients than in a matched group of people without MS. Vascular or migraine type headaches have even been reported as the first symptom of MS.

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

1. It is acknowledged that the applicant had a medical "incident" while he was on active duty in August 1994. At that time, it was believed he had suffered a mild stroke. As he was left with no residuals from the "stroke" that affected the performance of his duty, it appears he was properly not referred to an MEB at that time.

2. In January 1995, the applicant's civilian doctor indicated that his impression was the applicant probably had MS. There is some evidence of record to show that the applicant may have had MS or symptoms of MS as early as September 1991.

3. Although MS is a cause for referral to an MEB, there is no evidence to show the applicant or his unit made an effort to refer him to an MEB for this condition until February 1996, when it appears he was scheduled for deployment to Bosnia. There is no record of the response to the request for an MEB by the Command Surgeon of the 94th Regional Support Command. The applicant never appeared before an MEB. In accordance with Army Regulation 635-40, the ability of a soldier to reasonably perform his duties in all geographic locations under all conceivable circumstances will not serve as the sole basis for a finding of unfitness.

5. The applicant provides no convincing evidence that a PEB would have found him to be unfit for duty. He subsequently successfully completed two additional years of qualifying service in the USAR before stopping his active participation sometime after RYE 7 April 1998. He is still eligible for retired pay at age 60. He has failed to demonstrate how the failure to appear before an MEB has worked to his detriment. There is an insufficient basis on which to grant the relief he requests.

6. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__fne___ __gjw___ __au____ DENY APPLICATION

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

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INDEX

CASE ID	AR2003088400
SUFFIX
RECON
DATE BOARDED	20031104
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY	Mr. Chun
ISSUES 1.	108.00
2.
3.
4.
5.
6.