RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        9 JUNE 2005
      DOCKET NUMBER:  AR20040005762


      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. Kenneth H. Aucock             |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Melvin Meyer                  |     |Chairperson          |
|     |Mr. Lester Echols                 |     |Member               |
|     |Mr. Carol Kornhoff                |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  In effect, the applicant requests physical disability retirement.  He
requests that he be reinstated on active duty for the purpose of medical
retirement.

2.  The applicant states he is a veteran of the Gulf War.  He left active
duty upon the completion of his tour of service in November 1994 and became
a member of the Reserve Component, both in the Hawaii Army National Guard
and later in the Army Reserve.  His outprocessing physical at that time
found symptoms suggestive of Gulf War Syndrome.  Following his time spent
in Gulf War, he was plagued with an almost unending string of colds and
congestion, and his condition was diagnosed as upper respiratory
infections.  Nonetheless, his career as an active duty Soldier was
successful.  However, on two occasions in 1997 he failed the APFT (Army
Physical Fitness Test), which were recorded on his NCOERs (Noncommissioned
Officer Evaluation Reports).  Eventually, a physician determined that he
had asthma; consequently he was able to obtain a proper physical profile
that allowed him to take alternate events for the APFT, and he was given
medications that resolved the worst part of his symptoms.  However, the
APFT failures were recorded on three of his NCOERs, and he received a
Department of the Army (DA) imposed bar to reenlistment under the
Qualitative Management Program (QMP).  He appealed, but was unsuccessful.

      a.  He went to his doctor, who agreed he should have been placed
before a Medical Evaluation Board (MEB) for his asthma.  On 3 October 2002
the MEB found that his asthma and also his fibromyalgia warranted review by
the PEB.  On 12 November 2002 the PEB only made a determination regarding
his asthma, and stated that he was fit for duty.  Nothing was said about
his fibromyalgia.  His rheumatologist, Dr. “M,” examined him and submitted
a new profile, dated 3 December 2002, indicating that the fibromyalgia was
significantly worse than his initial impression.  Consequently, the MEB
decided to restart the process so as to include the new information.

      b.  While this was going on, he was appealing to the Army Board for
Correction of Military Records (ABCMR) the QMP results, because he wanted
to remain on active duty.  The ABCMR denied his request.

      c.  On 10 April 2003 the PEB found that he was unfit for service with
a       10 percent disability rating because of fibromyalgia.  He
nonconcurred.  He saw his rheumatologist who told him that he thought the
findings were incorrect, and decided to be more specific in his narrative
summary.  Based on this, the PEB on 3 June 2003, determined that his
fibromyalgia was 40 percent disabling, but would not rate his asthma as it
did not affect his fitness for service.  He accepted the findings, in part
because he was told that if he requested a hearing the amount of disability
could be reduced.  There was no regulatory basis for revoking the 40
percent retirement except by a new medical examination.

      d.  According to Army Regulation 635-40 the process then should have
ended.  However, he was advised by the Physical Disability Agency (USAPDA)
on 8 August 2003, that his career was ended administratively by the bar to
reenlistment under the QMP, not by medical impairment.  The matter was
returned to the PEB for “reconsideration” although the findings left
nothing for the PEB to reconsider.  It supported the finding with a
narrative timeline that indicated there was evidence that he had
manipulated the medical board process to evade being released under the
QMP.  There was no evidence, only conjecture and speculation.  As a
specific rebuttal to the timeline, he attaches Exhibit A.  Ironically,
while the USAPDA stated that he should be discharged as a result of the
QMP, they failed to comment that the basis for the QMP was three APFT
failures caused by a physical disability.  Even though the findings of the
PEB were based on explicit medical narratives, the USAPDA dismissed the
physician’s findings, substituting their own non-medical conclusions.

      e.  He requested a hearing from the PEB.  On 8 September 2003 his
request was denied.  The PEB stated that the provisions of the Department
of Defense Instruction did not allow members determined fit an entitlement
to a formal PEB.  With the assistance of the Fort Gordon legal assistance
office he submitted a response.  On 1 October 2003 the PEB affirmed their
18 August 2003 decision.  He submitted additional matters to the USAPDA.
On 27 October 2003 the USAPDA reaffirmed their decision that he was fit for
duty and should be separated pursuant to the QMP.  He was discharged on 12
February 2004.  His 15 years of active duty towards retirement have been
lost.

      f.  The applicant comments on his medical conditions, and stated that
 according to the Department of Veterans Affairs Schedule for Rating
Disabilities (VASRD), his disability rating for asthma should be 30
percent; and for fibromyalgia, 40 percent.

      g.  The applicant takes exception to the actions of the USAPDA and
the PEB, stating that there was no authority for the USAPDA to intervene.
He was refused the right to a hearing, and was incorrectly cited a DOD
Instruction that stated he was not entitled to a formal board.  A formal
board is permitted under the pertinent regulation.  According to the
regulation, the action by the USAPDA can only be acted on by the APDAB when
the Soldier nonconcurs.

      h.  The USAPDA has no authority to reverse the finding of unfit for
duty by the PEB.   When he asked why the USAPDA got involved he was told
that it was the result of a random quality assurance review.

      i.  He states that the denial of his request for a formal hearing is
contrary to the provisions of Army Regulation 635-40, in that regulation
states, “a Soldier is entitled to a formal hearing if requested after
informal consideration by a PEB.”  He states that under the DOD
Instruction, the service member does not have the right to a formal
hearing; however, the Secretary of the Army, in the exercise of his own
discretion, may allow a formal hearing in any case following an informal
hearing.  The failure to allow a formal hearing leaves findings not based
on evidence, but on the prejudices, whims, and imaginations of the USAPDA.


      j.  After the PEB informally awarded him a 40 percent disability
rating, he concurred with the finding, and waived his right to a hearing.
There was no regulatory indication anywhere that such a finding would ever
by subject to attack by the USAPDA.  In the original MEB he sought to
insert relevant medical evidence into the proceedings but was refused.  He
went to the scheduled formal hearing with those same records, but when the
PEB awarded him a 40 percent disability rating, he concurred in the
results, obviating the need to present additional evidence.

      k.  The initial MEB/PEB indicated a diagnosis of asthma.  In spite of
the regulations, the USAPDA failed to reflect on the fact that asthma
renders a Soldier unfit.  In the confusion between the two different MEBs
and PEBs this diagnosis was omitted.  The asthma has not resolved itself.

      l.  The thrust of the USAPDA memorandum is that he used the PEB
process to evade the consequences of a QMP.  Had he been given the
opportunity, he would have shown that the suggestion that he was trying to
evade the consequences of the QMP was grossly unfair and not factual.

      m.  The USAPDA apparently takes the position regarding his fitness
for duty from Army Regulation 635-40, which states in effect that when a
Soldier is processed for separation for reasons other than physical
disability (such as QMP) there is a rebuttal presumption that he is fit for
duty.  All the Soldier has to do to rebut this presumption is to show that
he cannot perform his duties.  The USAPDA did acknowledge that the
“Soldier’s supervisor indicates by letter that the Soldier can no longer
recruit because of neck and back pain, and exercised-induced asthma.”  The
USAPDA ignored this evidence.

      n.  The matter should have been referred to the APDAB (Army Physical
Disability Appeals Board) for review in accordance with the regulation, not
sent back to the PEB.  He nonconcurred, and while the format that the
USAPDA used to communication their revision was superficially a “return for
consideration,” it was far from that – communicating a conclusion on the
part of the USAPDA.   The PEB rubber stamped the conclusion of the USAPDA.

      o.  The single greatest error is the failure of any portion of the
Physical Disability Evaluation System process to apply the provisions of a
policy letter considering disability disposition of Soldiers associated
with Gulf War illness.  If a Soldier who claims impairment is associated
with service in the Gulf War, then the PEB cannot take action except to
refer the matter to the MEB for referral to the Comprehensive Clinical
Evaluation Program (CCEP).  Both asthma and fibromyalgia have been linked
to Gulf War syndrome.  He has never been referred to the CCEP.

3.  The applicant provides:

      a.  Continuation sheet for item 9 of his DD Form 149, and the
timeline he provides in response to a timeline narrative found in the
USAPDA’s 8 August 2003 memorandum.

      b.  Copy of his personnel qualification record.

      c.  Copies of reports of medical examination and reports of medical
history, dated 31 May 2002, 19 April 1997, and 25 September 1991.

      d.  Emergency Care and Treatment document dated 13 March 1996;
Screening Note of Acute Medial Care, dated 1 November 1991; and
Chronological Record of Medical Care, dated 6 February 1997.

      e.  Copies of NCOERs for the periods 9605 through 9610; 9711 through
9801; and 9501 through 9510.

      f.  MEB proceedings dated 3 October 2002 and page 1 of PEB
proceedings dated 12 November 2002.

      g.  Physical Profile (DA Form 3349), dated 3 December 2002.

      h.  Medication profile.

      i.  MEB proceedings dated 3 October 2002 (as above).
      j.  PEB proceedings dated 12 November 2002 (as above).

      k.  Physical profile dated 3 December 2002 (as above).

      l.  Copy of 26 June 2003 ABCMR letter informing applicant that his
application had been denied.

      m.  PEB proceedings dated 10 April 2003.

      n.  PEB proceedings dated 3 June 2003.

      o.  USAPDA Memorandum dated 8 August 2003 to the President of the
PEB.
      p.  PEB Memorandum dated 8 September 2003 to the applicant.

      q.  PEB Memorandum dated 1 October 2003 to the applicant.

      r.  Memorandum, dated 18 October 2003 from the applicant to the
Deputy Commander, USAPDA.

      s.  USAPDA Memorandum dated 27 October 2003 to a legal assistance
officer, Office of the Staff Judge Advocate, Fort Gordon, Georgia.

      t.  Copy of flow volume tests, dated 3 November 2003.

4.  The applicant provided additional documents that were received on 10
March 2005, and which consists of his above-mentioned narrative statements,
and a copy of an 11 January 2005 VA rating decision.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Army Reserve Delayed Entry Program (DEP)
for 6 years on 22 November 1983.  He was discharged from the DEP upon his
enlistment in the Regular Army for 4 years on 16 February 1984.  He was
trained as a construction equipment repairer and completed parachute
training.  He extended his enlistment on 3 December 1986 and reenlisted for
3 years on        28 November 1989.  He was promoted to staff sergeant on 1
May 1991.  On        1 September 1992 he reenlisted in the Army for 4
years.  The applicant was honorably discharged at Fort Shafter, Hawaii on 1
November 1994 because of parenthood.  The applicant’s service included
tours of duty in Korea, Italy, German, Saudi Arabia, and Hawaii.

2.  A 25 September 1991 report of medical examination indicates that he was
fit for retention with a physical profile serial of 1 1 1 1 1 1.

3.  The applicant enlisted in the Hawaii Army National Guard for 3 years on
         31 January 1995.  On 1 May 1995 he was assigned to the Military
Academy, Hawaii Army National Guard (state Officer Candidate School).  On
31 July 1995 he was discharged from the Army National Guard and assigned to
the Army Reserve Control Group (Reinforcement).

4.  The applicant’s NCOER for the period January 1995 to October 1995
indicates that he did not take the APFT during the rating period.  It did
indicate that he needed improvement in the area of physical fitness and
military bearing.  He was considered a fully capable NCO.

5.  On 13 March 1996 the applicant was treated for testicular pain, lower
back pain, neck pain, throat pain, headache, and right knee arthritis.

6.  On 23 May 1996 the applicant was reassigned from the Army Reserve
Control Group (Reinforcement) to the 277th Engineer Company, a Reserve TPU
(Troop Program Unit) in San Antonio.

7.  On 11 August 1996 the Commandant of the NCO Academy at Fort McCoy,
Wisconsin notified the applicant’s commanding officer that he denied the
applicant’s enrollment in the academy for failing to meet the minimum
standards of the APFT.

8.  His report for the period May 1996 to October 1996 shows that he failed
the APFT taken in September 1996, that he scored 45 points on the 2-mile
run but was making gradual progress.  He was considered a fully capable
NCO.

9.  On 6 February 1997 the applicant was treated for sinusitis.

10.  On 18 May 1997 the 5501st Army Hospital notified the applicant that he
had been identified as having a physical profile with a 3 or 4 in one or
more PULHES factors, and would have to appear before a locally constituted
Medical Review Board (MRB) on 20 July 1997 to determine his ability to
physically perform in a worldwide environment.

11.  On 15 July 1997 the applicant’s commanding officer recommended to the
Medical Board that the applicant be retained in the Army Reserve, stating
that he had performed his duties up to standards.  Attached to that request
was a copy of a report of medical examination, dated 19 April 1997, which
indicated that the applicant was not qualified for retention, that he had
Gulf War illness (40 percent VA disability), sleep apnea (surgery
scheduled), and lipoma-like small sub-cutaneous lesions on abdomen/back.
His physical profile serial was 3 1 1 1 1 1.

12.  The applicant’s NCOER for the period November 1996 to October 1997
while assigned as a senior equipment repairer with the 277th Engineer
Company in San Antonio shows that he failed the APFT taken in October 1997,
but did indicate that he participated in a regular exercise program.  That
report also indicated that he failed the 2-mile event with a score of 20
points, but was making progress.  His rating officials considered him a
fully capable NCO.

13.  The applicant’s APFT scorecard shows that he failed the test on 3
November 1996 and again on 18 October 1997.

14.  On 14 November 1997 he received a temporary profile for neck and lower
back pain.

15.  The applicant’s NCOER for the period November 1997 to January 1998
shows that he failed the APFT taken in October 1997, that he failed the run
portion of the APFT, and because of his lack of progress he was transferred
to the IRR (Individual Ready Reserve).

16.  On 30 March 1998 the 94th Regional Support Command published orders
discharging him from the Army Reserve.

17.  An 11 May 1998 report of medical examination indicated that the
applicant was medically qualified for enlistment.  It did make mention of a
40 percent disability rating – 20 percent for back problems (neck) and 20
percent for a condition to his right second toe.  It indicated he had a
normal cervical spine MRI in January 1998.  It showed that he was 34 pounds
overweight.

18.  On 8 June 1998 the applicant enlisted in the Hawaii Army National
Guard for  2 years.  On 22 May 1999 the applicant passed the APFT.

19.  On 29 July 1999 the applicant enlisted in the Army Reserve for four
years.  On 26 January 2000 he was ordered to active duty in an Active Guard
Reserve (AGR) status with temporary duty at Fort Jackson, South Carolina,
to attend the Army Recruiter Course, and thereafter with assignment to the
Army Recruiting Battalion Miami, with a reporting date of 3 April 2000.

20.  On 31 October 2000 the Army Recruiting Command notified the applicant
that his application for appointment in the Medical Service Corps had been
favorably considered and that he had been selected for appointment in the
Army Reserve without concurrent call to active duty in the grade of second
lieutenant.

21.  On 18 December 2000 the VA indicated that the applicant was receiving
care as an outpatient at the VA Miami Medical Center and could not
participate in physical training until further evaluation.  On 17 January
2001 the VA indicated that the applicant could not participate in strenuous
exercise until his exercise induced asthma had stabilized.  The restriction
included no APFT, but the alternate APFT was “OK.”

22.  On 27 March 2001 the applicant passed the alternate APFT.  On 17
October 2001 the applicant passed the alternate APFT.

23.  E-mail correspondence between the applicant and members of the
Recruiting Command in April 2001 show that the applicant was trying to
obtain an AGR position concurrent with his appointment as a second
lieutenant.

24.  On 6 June 2001 the Army Reserve Personnel Command notified the
applicant that he was denied continued service under the Department of the
Army United States Army Reserve Active Guard Reserve QMP.  The basis for
his bar to reenlistment was NCOERs for the periods 9711-9801, 9611-9710,
9605-9610, and 9501-9510.

25.  On 14 August 2001 he submitted an appeal, requesting that he be
retained on active duty.  In so doing, he had the unqualified support of
the Operations Officer, Operations NCO, and Operations NCOIC, Recruiting
Battalion Miami; the commanding officer of the South Dade Recruiting
Company; the Professor of Military Science, First Region (ROTC) Cadet
Command at Florida International University; a retired lieutenant colonel,
the Recruiting Operations Officer at Florida International  University; the
senior instructor at that university; the commanding officer, Recruiting
Battalion Miami; the commanding officer 2nd Recruiting Brigade; and the
Director of Personnel, United States Army Recruiting Command.  He was
portrayed as an outstanding Soldier; a top-notch recruiter; a Soldier with
a positive attitude and high level of energy; a recruiter who achieved 142
percent of assigned mission and accomplished 190 percent of quality mission
production; a Soldier who worked long, arduous hours; the most productive
AGR recruiter in the battalion; and so on.  The Commanding Officer, 2nd
Recruiting Brigade stated that he was on profile and successfully passed an
alternate APFT on 27 March 2001, and that his physical abilities did not
interfere with his professional duties.

26.  On 18 June 2001 the applicant completed the oath of office, accepting
an appointment as a second lieutenant in the Army Reserve.

27.  On 5 September 2001 the Army Recruiting Command notified the applicant
that they were unable to complete the direct commissioning process because
of the QMP action against him.  He was given a six-month extension, until
27 April 2002, to accept his commission, contingent upon a favorable
outcome of his QMP appeal.

28.  On 14 December 2001 the Total Army Personnel Command at St. Louis
notified the Director, Full Time Support Management Directorate that the
applicant’s appeal was disapproved.

29.  On 1 March 2002 the applicant appealed the NCOERs for the period
9611- 9710, 9711-9801, and 9501-9510.  On 18 April 2002 the Army Reserve
Personnel Command returned his correspondence concerning the appeal of the
first two above- mentioned reports without action because of insufficient
evidence.  It failed to comment on the report for the period 9501-9510.

30.  On 28 March 2002 orders were published by the Army Reserve Personnel
Command at St. Louis reattaching the applicant to the transition point at
Fort Stewart, Georgia for separation processing with a reporting date of 29
May 2002. Those orders were eventually amended to show a reporting date of
30 May 2003.

31.  On 13 May 2002 the applicant appealed the NCOER for the period
9605-9610.  There is no evidence of any action taken on that appeal.

32.  On 14 May 2002 the applicant applied to this Board, requesting that
the QMP action taken against him on 25 June 2001 be revoked and that he be
retained on active duty.  He also requested that his acceptance of a
commission in the Medical Service Corps, dated 18 June 2001, be made
effective.  In his appeal, he stated that exercise-induced asthma was the
single reason he failed two APFTs that were reflected in four evaluations,
and at the time of his APFT failures his exercise-induced asthma was
undiagnosed.  The MEB narrative reports cited herein are reports that were
included in his 14 May 2002 application to this Board.

33.  A 31 May 2002 report of medical examination indicates that the
applicant was not qualified for service because of chronic back/neck pain
and asthma, with a physical profile serial of 3 1 3 1 1 1.  In the report
of medical history he furnished for the examination, the applicant listed
numerous medical conditions, to include a diagnosis of exercise-induced
asthma in 2001 and referred to an MEB; a diagnosis of chronic sinusitis in
2000 at the Veterans Hospital in Miami; and a diagnosis of arthritis in the
neck, thoracic spine and lower lumbar spine.

34.  On 14 August 2002 he received a permanent profile of 3 1 1 1 1 1 1
because of exercise-induced asthma.  The profile limited him from
participating in the      2-mile run, however, he could take the other
portions of the APFT, and could do aerobic exercise at his own pace and
duration.  The profile report indicated that an MEB was initiated secondary
to the applicant’s inability to meet APFT standards for the 2-mile run
secondary to the diagnosis of exercise-induced asthma.

35.  A 3 October 2002 narrative summary based upon a physical examination
performed on 16 April 2002 and 31 May 2002 indicates that the applicant’s
condition was diagnosed as asthma, mild and intermittent with predominately
exercise-induced symptoms with the applicant unable to pass the 2-mile run
in the Army physical test.  That summary indicated that the applicant
stated that he had been having problems breathing since approximately March
2000 and had similar less severe symptoms since at least 1991.  He stated
that he came back on active duty as a recruiter in March of 2000 and while
in school started having dyspnea on exertion with wheezing.  He eventually
changed stations to Miami and the symptoms started to progress.  He was put
on metered dose inhalers and other allergy medications.  The symptoms
improved with medications but if he stopped, then they slowly returned.
Pulmonary function tests performed on   31 August 2001 and 21 November 2001
were within normal limits.  Diffusion capacity of the lungs was within
normal limits.  He underwent exercise pulmonary function tests, exercised
for 9 minutes at 5 ½ miles per hour and was stooped secondary to dyspnea
and chest tightness.  Symptoms were resolved with bronchodilator and rest.
He was recommended to continue on his Flovent inhaler and Albuterol pre-
exercise.  On follow-up on 18 April 2002, the applicant was still having
difficulty running and was unable to pass the 2-mile run.  His medications
were changed to include an addition of Serevent Discus.

36.  On 3 October 2002 an MEB recommended that he be referred to a PEB
because of his exercise-induced asthma.  The applicant indicated that he
did not desire to continue on active duty.  He also stated that he did not
agree with the board’s findings and recommendation.  The approving
authority directed that the diagnosis of fibromyalgia syndrome be added to
the MEB proceedings, and affirmed the findings and recommendation of the
MEB.

37.  On 12 November 2002 a PEB determined that the applicant was fit for
duty within the limits of his profile, and stated that the applicant had
continued to carry out his assigned duties despite his medical problem, and
that he was symptomatic only with running.  His symptoms resolved in
minutes with rest.  The PEB stated that his physical profile was not unduly
restrictive, permitting functional activities and an alternate APFT.  The
PEB noted that he passed the 2.5 mile walk on 17 October 2001.  The PEB
noted that the applicant had requested retention beyond his ETS (expiration
of term of service) to complete MEB and PEB processing.

38.  On 3 December 2002 the applicant received a permanent physical profile
of  3 3 3 1 1 1 because of fibromyalgia (chronic diffuse joint pain),
chronic neck and low back pain, and exercise-induced asthma.  The company
commander’s portion of that profile form was not completed.  On 18 March
2003 he again received the same permanent profile.  The company commander’s
portion of that form was also not completed.

39.  On 18 December 2002 the USAPDA approved the findings of the
   12 November 2002 PEB, iterating that the applicant had been found
physically fit for duty.

40.  The applicant provided a list of the medications that he was taken,
dating from April 2002 through 11 March 2003.

41.  A 28 March 2003 narrative summary prepared by the applicant’s
rheumatologist at the Dwight D. Eisenhower Medical Center, Fort Gordon,
indicated that the applicant reported having chronic low back pain and
significant arthralgias since about 1991 and that he reported being in good
health until serving in Saudi Arabia, and that after the Gulf War he began
having progressively worsening arthralgias.  He reported that over the past
12 years his pain has worsened and he has continued to have very poor
sleep.  He stated that he hurts “all over.”  He stated that his pain had
been so severe that he was not currently working as a recruiter and had
been extremely depressed and stressed because of his work situation and MEB
proceedings.  The doctor indicated that he was well-developed and in no
acute distress.  He had 18/18 possible tender points of fibromyalgia.
Radiological studies, which included an MRI of the cervical spine, were
entirely normal.  X-ray of the cervical spine done in August 2002 with
flexion and extension view was completely normal.  An MRI of his lumbar
spine in July 2002 showed a left L4 nerve impingement and foramen narrowing
due to a disc bulge.  A chest X-ray in July 2002 was normal.  The doctor
stated that the applicant had a 12-year history of chronic arthralgias and
appeared to have severe fibromyalgia syndrome by both history and exam
findings that were refractory to therapy.  He continued to have severe pain
that did not respond adequately to multiple therapeutic options.  He was
recently boarded for exercise-induced asthma that found him fit for duty,
but did not adequately address the diagnosis of fibromyalgia.  He has been
assigned to work in the patient representative office at the Eisenhower
Medical Center, has not missed any work there and has been highly
successful in the position; however, it appeared that he was unable to
perform well in a more traditional Soldier role.  His prognosis was
guarded.

42.  In a 20 March 2003 narrative summary, an addendum to the original MEB
 dictation dated 29 July 2002, a pulmonary doctor at the Eisenhower Army
Medical Center indicated that the applicant was seen on 4 February 2003 for
a follow-up on his exercise-induced bronchospasms.  The doctor assessed his
condition as continued mild exercise-induced bronchospasms which was stable
on medications, and that it was actually felt that much of the applicant’s
exercise symptoms were most likely due to his underlying history of
fibromyalgia and also due to deconditioning.

43.  On 28 March 2003 an MEB diagnosed the applicant’s condition as
fibromyalgia, dating from1990; exercise-induced asthma (found fit for duty
November 2002 stable), dating from 1991; and depressive disorder, not
otherwise specified, manifested by decreased concentration, and sleep
disturbance for nearly two years secondary to ongoing frustration regarding
his unit and medical care.  Precipitating stressors were moderate,
fibromyalgia, exercise-induced asthma, and threatened separation from
active duty.

44.  On 10 April 2003 a PEB determined that the applicant was physically
unfit because of his fibromyalgia with 18/18 tender points, and which
necessitated continuous medication for control, and with depressive
features.  The PEB considered the MEB diagnoses, narrative summary
(rheumatology addendum), and the commander’s letter in making its
determination.  The MEB diagnosis, exercise-induced asthma was determined
to be not unfitting and not rated.   The PEB recommended that the applicant
be separated with severance pay with a   10 percent disability rating.  The
applicant did not concur and demanded a formal hearing.

45.  On 3 June 2003 a PEB informally reconsidered his case and determined
that he was physically unfit for duty because of fibromyalgia, with diffuse
pain, irritable bowel syndrome, chronic headaches and fatigue, with 18/18
tender points; and that his symptoms were constant and refractory to
therapy.  The PEB recommended that he be placed on the temporary disability
retired list (TDRL) with a 40 percent disability rating.  The applicant
concurred and waived a formal hearing of his case.

46.  On 8 August 2003 the USAPDA returned the PEB proceedings to the board
president, stating that the preponderance of evidence supported a finding
that the applicant’s career was ended administratively by the QMP, not by a
medical impairment.  The USAPDA stated that his medical impairment all too
conveniently became problematic after he was denied continued service by
the QMP on 6 June 2001.  His appeal was disapproved on 14 December 2001,
and since that time it appeared that the applicant’s primary goal was to
convince the Army that he was medically unfit and should received a
disability retirement instead of administrative separation under the QMP.
The USAPDA cited items that were relevant.  The USAPDA cited pertinent
items as indicated in its paraphrased statements herewith:

      a.  April 2001.  The applicant’s annual NCOER reflects the highest
rating by the Senior Rater.  Part IVc specifically indicates the
applicant’s profile does not hinder duty performance.

      b.  14 December 2001.  Letter to applicant denying his QMP appeal.

      c.  5 June 2002.  Applicant’s supervisor indicates by letter that
applicant can no longer recruit because of neck and low back pain, and
exercised-induced asthma.


      d.  26 August 2002.  A rheumatology note indicates that the applicant
complained of a 12-year history of chronic arthralgias which the applicant
attributed to duty in the Persian Gulf.

      e.  12 September 2002.  An orthopedic evaluation indicated that the
applicant did not fail retention standards for neck/back pain of 12 years
duration.

      f.  9 October 2002.  The applicant had an MEB primarily for asthma.
He was referred to the PEB.  The diagnosis of fibromyalgia, apparently
discovered during the MEB workup process was added.

      g.  17 October 2002.  Applicant passed the 2-mile walk alternate APFT
event. On 22 October 2002 he was issued a P-3 profile with no limits other
than the 2-mile run.  On 17 November 2002 the PEB found him fit for duty.
He was scheduled to leave the Army on 28 February 2003.  On 30 December
2002 the applicant requested an extension to complete another MEB for
fibromyalgia, a condition for which he had already been found fit.  The
request was approved by PERSCOM, with a new separation date of April 2003.

      h.  21 February 2003.  A psychiatric note indicated that an MEB was
being resubmitted to include the additional diagnosis of fibromyalgia.
There was nothing new about it.  The note indicated that the applicant was
angry and depressed because he was being railroaded off active duty.  On 7
March 2003 another profile was issued that was essentially unchanged from
the 3 December 2002 profile.  On 28 March 2003 an MEB narrative summary was
prepared by rheumatology, indicating that the applicant weighed 246 pounds.
 The narrative summary was based on an evaluation done on 31 January 2003,
two months after the applicant was found fit.  In an apparent
misunderstanding of the PEB’s fit finding, the rheumatologist indicated
that the PEB found the applicant fit for duty in November 2002 only for
asthma, failing to note that he was found fit for both asthma and
fibromyalgia.  The narrative summary provided no substantive changes from
the data provided to the PEB in the October 2002 MEB.

      i.  10 April 2003.  The PEB found the applicant unfit for
fibromyalgia at            10 percent.  The applicant nonconcurred and
requested a formal hearing.

      j.  3 June 2003.  The same rheumatologist who prepared the second
narrative summary authored a four-page addendum, which was based on an
examination done on 16 April 2003, six days after the applicant was found
unfit at 10 percent.  The addendum indicated that the applicant was now
suffering from severe pain from fibromyalgia.  The document had the
appearance of one prepared as the result of a Soldier revisiting the
attending physician, after receiving a PEB finding with which he did not
like, in an effort to impress the physician with how much he was suffering,
and indicating that he needed a medical report that would support an
appeal.  The addendum noted that it was unlikely that the applicant would
significantly improve in the next three to five years, failing to note that
the symptoms only became intrusive after the QMP and again after the PEB
finding of 10 percent.  On 3 June 2003, upon receipt of the addendum, the
PEB awarded the applicant 40 percent for fibromyalgia.

47.  The USAPDA, in returning the PEB proceedings, stated that the PEB was
encouraged to find the applicant fit for duty within the limits of his
profile.

48.  On 17 June 2003 the Army Board for Correction of Military Records
denied the applicant’s request to revoke the QMP action, retain him on
active duty, and to effect his commission in the Medical Service Corps.

49.  In reference to his nonconcurrence and request for a formal board, on
         8 September 2003 the PEB informed the applicant that the DODI did
not allow members determined fit an entitlement to a formal PEB since a
finding of fit did not cause involuntary separation for physical
disability.  On 1 October 2003 the PEB informed the applicant that it had
found that no change to the original findings was warranted, and that he
had provided no new objective medical or performance evidence that would
result in a change to his 18 August 2003 PEB findings and recommendations.
He was informed that his case was forwarded to the USAPDA for a legal
opinion.  The 18 August 2003 PEB findings and recommendations are not
available to this Board.

50.  In an 18 October 2003 memorandum to the Deputy Commander, USAPDA, the
applicant stated that he had requested a formal hearing through his
civilian legal counsel, who was assured by the Texas PEB that he would
grant a formal hearing; however, on 8 September 2003 he was informed
otherwise, with the PEB President stating that the DODI did not allow a
formal hearing.  He stated that he was found to be 40 percent disabled, but
based upon an ordered reconsideration by the USAPDA, he was found fit for
duty based upon the same medical evidence.  He stated that he understood
that the PEB President had the discretion to grant a formal hearing,
notwithstanding the DODI.  He stated that the PEB President promised his
attorney that he would be granted a formal hearing.  He stated that he was
requesting an exception to policy and that he be granted a formal hearing.

51.  In a 27 October 2003 memorandum, the USAPDA responded to the rebuttal
to the 18 August 2003 PEB findings, submitted by the applicant’s counsel.
The USAPDA stated that there was no basis to warrant any change to the
findings. In response to the claim that the USAPDA had no authority to
review the PEB findings, and that the USAPDA had changed the PEB’s 3 June
2003 findings, the USAPDA stated it had a quality review program mandated
by the Department of Defense, that the 8 August 2003 return of the case to
the PEB was not a change of the PEB findings, but only a return for the PEB
to consider additional factors, and that the PEB was free to reach any
decision they thought appropriate.  The USAPDA stated that since there was
no change to the PEB findings there was no right to any review by the
APDAB.  The USAPDA continued by saying that the CCEP was reflective of past
policy when the program was in effect, and that there was no present CCEP
program and it was always related to those cases where the Soldier would be
found unfit for duty.  There was no requirement to refer the applicant’s
case to a CCEP program.  Counsel was informed that the PEB President knew
that he had the discretion to grant a formal hearing; however, he correctly
stated that the applicant was not entitled to one and that the PEB had
sufficient information to support their findings.  A formal hearing would
have added no significant material evidence.  The USAPDA stated that the
applicant’s case had been properly considered and that there were no
material errors.  There was no compelling reason for the USAPDA to direct
that a formal hearing be held.  The case was considered complete and was
forwarded for final administrative action.

52.  Included with his request is a copy of a pulmonary flow test, dated 3
November 2003.

53.  The applicant was discharged at Fort Stewart, Georgia on 12 February
2004 under the provisions of Army Regulation 635-200, paragraph 19-12,
involuntary discharge because of a denied QMP appeal.  He had almost 15
years of active service.

54.  Based on the applicant’s new claim for benefits that was received by
the VA on 25 February 2004, on 11 January 2005 the VA granted the applicant
a            50 percent service connected disability rating for sleep apnea
and asthma and a 50 percent rating for major depressive disorder effective
on 13 February 2004.  It increased his 20 percent disability rating for
lumbosacral strain to 40 percent; granted a 20 percent service connected
disability rating for fibromyalgia with headaches and diffuse joint pain;
increased his 10 percent rating for cervical strain to 20 percent;
continued his 20 percent rating for status post arthroplasty right second
toe, status post fracture right third metatarsal, and pes planus, plantar
warts; granted a 10 percent rating for right knee osteoarthritis; granted a
10 percent rating for sinusitis; increased his 0 percent rating for plantar
warts, pes planus, left foot to 10 percent; increased his 0 percent rating
for lipoma, back and abdomen, to 10 percent; granted a 0 percent rating for
residuals of left epididymectomy; and continued 0 percent ratings for
laceration, left wrist, tinea cruris of the groin, and pseudofolliculitis
barbae.  His overall rating was            100 percent.

55.  Fibromyalgia syndrome (FMS) is defined as a widespread musculoskeletal
pain and fatigue disorder for which the cause is unknown.  Fibromyalgia
means pain in the muscles, ligaments, and tendons – the soft fibrous
tissues in the body.  Most patients with FMS say that they ache all over.
Their muscles may feel like they have been pulled or overworked.  Sometimes
the muscles twitch and at other times they burn.

56.  Department of Defense Instruction 1332.38 makes reference to Gulf War
cases and states in pertinent part that Comprehensive Clinical Evaluation
Program (CCEP) participants who are diagnosed with conditions that are
cause for referral into the disability evaluation system shall receive a
MEB to determine if the case is to be referred to the PEB.

57.  USAPDA Policy memorandum concerning disability disposition of Soldiers
with symptoms associated with Gulf War illness, dated 8 April 2002, states
that the PEB will return to the Medical Treatment Facility (MTF) cases of
Soldiers who deployed to Southwest Asia when the Soldier claims a medical
impairment associated with his service in the Gulf, has symptoms compatible
with “Gulf War Illness,” has not completed the CCEP, and nonconcurs with
the findings of the PEB.  These Soldiers will be enrolled into the DOD
Health Surveillance System or the Department of Veterans Affairs (DVA) Gulf
War Health Registry and examined under the CCEP being administered by DOD.

58.  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 states in pertinent part, that after a Soldier has been
enlisted, the Soldier will not be declared physically unfit for military
service because of disabilities known to exist at the time of the Soldier’s
acceptance for military service that have remained essentially the same in
degree since acceptance, and have not interfered with the Soldier’s
performance of effective military service.

59.  It goes on to state 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.

60.  And, 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.  The presumption of fitness may be overcome if the evidence
establishes that the Soldier was, in fact, physically unable to perform
adequately the duties of his or her office, grade, rank, or rating for a
period of time because of disability.  There must be a causative
relationship between the less than adequate duty performance and the
unfitting medical condition or conditions.

61.  Section V of the above mentioned regulation pertains to review and
confirmation of PEB action, and provides a required review by the USAPDA
for certain cases, to include informal proceedings when the Soldier
nonconcurs with the PEB findings and recommendations, waives a formal
hearing, submits a statement of rebuttal within the required time frame,
and consideration of the rebuttal by the PEB does not result in a change to
its findings and recommendations; any case previously forwarded to USAPDA
for review and approval and which has been returned to the PEB for
reconsideration or rehearing; and cases designated by the USAPDA for
review.

62.  Based on a review of the PEB proceedings, the USAPDA may take certain
actions, to include – concur with the findings and recommendations of the
PEB or make minor changes or corrections that do not affect the recommended
disposition of the Soldier or lower the combined percentage rating; return
the case to the PEB for reconsideration, clarification, further
investigation, a formal hearing, or the action when the case records show
such action is in the best interest of the Soldier or the Army.  A detailed
explanation for the reasons for return of the case will be provided to the
PEB; issue revised findings providing for a change in disposition of the
Soldier or change in the Soldier’s disability rating; refer the case to the
APDAB.

63.  That section also provides for the USAPDA to take certain actions when
modifying PEB findings and recommendations, to include forwarding the case
to the APDAB.

64.  DODI 1332.38 states in pertinent part, that active duty and Ready
Reserve members determined fit do not have an entitlement to a formal PEB
since a finding of fit does not cause involuntary separation for physical
disability.  It also states that a formal PEB may be directed by the final
reviewing authority or appropriate designated military department authority
without regard to the member’s election concerning the informal PEB’s
findings.

65.  It provides for medical evaluation boards, which are convened to
document a Soldier’s medical status and duty limitations insofar as duty is
affected by the Soldier’s status.  A decision is made as to the Soldier’s
medical qualifications for retention based on the criteria in AR 40-501,
chapter 3.  If the MEB determines the Soldier does not meet retention
standards, the board will recommend referral of the Soldier to a PEB.

66.  Physical evaluation boards are established to evaluate all cases of
physical disability equitability for the Soldier and the Army.  It is a
fact finding board to investigate the nature, cause, degree of severity,
and probable permanency of the disability of Soldiers who are referred to
the board; to evaluate the physical condition of the Soldier against the
physical requirements of the Soldier’s particular office, grade, rank or
rating; to provide a full and fair hearing for the Soldier; and to make
findings and recommendation to establish eligibility of a Soldier to be
separated or retired because of physical disability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant had over 10 years of active military service when he was
discharged for parenthood in November 1994.  Absent evidence to the
contrary he was medically fit for retention at the time of his discharge.
In January 1995 he enlisted in the Hawaii Army National Guard, was
discharged and transferred to the IRR in July of that year, and in May 1996
assigned to a troop program unit, where he remained until his discharge in
March 1998.  Notwithstanding his medical condition, as evidenced by his
April 1997 report of medical examination, the applicant continued his
service with the Army Reserve until his discharge in March 1998.  In May
1998 he was determined to be medically qualified for enlistment in the
Hawaii Army National Guard.  He enlisted in June of that year, and in May
1999 passed the APFT.

2.  The applicant’s statement that the USAPDA failed to indicate that the
basis for his QMP was three APFT failures caused by a physical disability
has no basis in fact.  The applicant’s NCOERs show that he failed the
tests; however, there is no evidence, and the applicant has not provided
any, to show that he failed the APFTs (the run portion) because he was
physically unfit.  The presumption is     that he would not have taken the
APFTs had he been physically unfit – that he would have been given a
profile (temporary or permanent), which would have prevented him from
taking the APFT.

3.  Subsequent to his enlistment in the Army Reserve, he was ordered to
active duty in an AGR status, trained as an Army recruiter, and was
selected for appointment as a second lieutenant in the Army Reserve, all
indications that he was medically qualified for military service.  He
passed the alternate APFT test in March 2001 and in October 2001.  The
applicant strived to obtain an AGR position concurrent with his commission.
 It would appear then, up until that time the applicant felt that he was
physically fit to perform his duties, and his future duties and
responsibilities as a second lieutenant in the Army Reserve.

4.  He was notified on 6 June 2001 that he was “QMP.”  Twelve days later he
accepted his Reserve commission as a second lieutenant, and in August 2001
he appealed the QMP action.  He wanted to stay on active duty, wanted to be
commissioned in the Army Reserve, and wanted an AGR tour of duty concurrent
with his commission.  He felt that he was medically fit for duty.

5.  In appealing the QMP action, he had the support of number of Recruiting
Command NCOs and officers, all who commented on his outstanding performance
of duty.

6.  In December 2001 his appeal was disapproved, and in March 2002 orders
were published transferring the applicant to a transition point for
separation processing.

7.  The applicant, however, did not give up.  He appealed the NCOERs that
caused him to be barred from reenlistment.  In April 2002 his appeal was
returned without action.

8.  He appealed to this Board on 14 May 2002, again indicating that he
wanted to be retained on active duty, and that he wanted to be commissioned
a second lieutenant in the Army Reserve.  He clearly felt that he was
physically able to perform his duties.

9.  However, beginning in the end of May 2002 his medical problems rose to
the forefront.  In June 2002, less than a month after he appealed to this
Board requesting that he be retained on active duty, his supervisor stated
(according to the applicant and to the USAPDA) that he could no longer
recruit because of his neck and back pain and because of his exercise-
induced asthma.  He received a permanent profile for asthma, whose symptoms
he stated first became paramount in 1991, but exacerbated in March 2000
upon his return to active duty.  He was also diagnosed with fibromyalgia,
and in October 2002 an MEB referred him to a PEB.   The PEB found him fit.

10.  In March 2003 a rheumatologist stated that the applicant had a 12-year
history of chronic arthralgias and appeared to have severe fibromyalgia.
He had severe pain.  He stated that he could work in an office, however,
and was highly successful in that position; however, he could not perform
well in a more traditional Soldier role.  Six months earlier, however, he
had passed the alternate APFT, and he apparently performed soldierly duties
of some sort until his discharge in February 2004.  Notwithstanding his 12
years of chronic arthralgias, the applicant capably performed his duties as
evidenced by his service in the Army National Guard and the Army Reserve,
to include over three years of active duty in an AGR status.

11.  He went before another MEB and was referred to a PEB, which gave him a
10 percent disability rating.  The applicant, not satisfied, requested a
formal board.  The PEB reconsidered, and recommended a 40 percent rating
and placement on the TDRL.  The applicant concurred.

12.  The USAPDA, however, when it received the case, noted that the
applicant’s medical problems began subsequent to the QMP, and that the
applicant appeared to be working the system – that is to obtain a medical
retirement in lieu of being discharged from the Army because of the QMP.
The USAPDA rightly     returned the case to the PEB.

13.  The PEB considered his case again in August 2003.  The results are not
available to this Board; however, he was apparently found fit for duty, as
witness the PEB response to his 3 September 2003 nonconcurrence, which is
also not available to the Board, and the USAPDA response to his 19
September 2003 rebuttal.  His rebuttal is also not available to the Board.


14.  Notwithstanding the applicant’s contention, the USAPDA has the
authority to review all PEB cases.  The applicant’s statement to the
contrary is simply not true.  This authority is contained in the same
paragraph of Army Regulation 635-40 cited by the applicant.  The USAPDA’s
action in returning the June 2003 PEB proceedings were correct and in
accordance with regulatory provisions.

15.  The PEB then determined that the applicant was physically fit.  The
USAPDA did not modify or revise the PEB findings or recommendations;
consequently, there was no requirement to submit his case to the APDAB.
Nor was the applicant entitled to a formal board.  The President of the
PEB, acting for the Secretary of the Army, determined that there was no
need for a formal board, and that the PEB had sufficient evidence to
support their findings.  The applicant has not submitted any medical
evidence that was not available to the PEB or the USAPDA.

16.  There is no evidence to show that the applicant had been referred to
the CCEP because of his illnesses supposedly linked to Gulf War syndrome;
and although the 8 April 2002 USAPDA policy letter states that the PEB will
return to the MTF cases of Soldiers who deployed to Southwest Asia who
claimed a medical impairment associated with “Gulf War illness,”  the
USAPDA in its         27 October 2003 response to his rebuttal to the PEB,
informed the applicant’s counsel that there was no CCEP program then in
existence, and that the program always related to those cases where the
Soldier would be found unfit for duty.  Whether or not the applicant’s
exercise-induced asthma or his fibromyalgia resulted from his participation
in the Gulf War, is moot.  The applicant was physically fit for duty in
1994 when he was discharged from the Army, physically fit during his Army
National Guard and Army Reserve service, and physically fit during his AGR
tour of duty.

17.  The evidence shows that the applicant was physically fit for duty, and
that he performed his duties as a Soldier until he was discharged –
notwithstanding the March 2003 statement from a rheumatologist.  From May
2002 when he first had himself inserted into the physical disability
evaluation system, until his discharge almost 21 months later in February
2004, the applicant must have performed some duties.  There is no evidence
and the applicant has not submitted any that his profile prevented him from
performing his military duties.  The Board notes, as did the USAPDA, that
the applicant’s physical problems, real or perceived, did not manifest
itself until May 2002, after his QMP appeal was denied in December 2001,
after his NCOER appeals were returned in March 2002, and after his appeal
to this Board in May 2002.

18.  Had it not been for the QMP action, the applicant would have continued
to serve as a member of the Army Reserve, and he would have been
commissioned a second lieutenant in the Army Reserve; and notwithstanding
the QMP action, had this Board granted the appeal he submitted in May 2002,
he would have continued his service in the Army Reserve.  The preponderance
of  evidence suggests that once the applicant felt that he had done all
that he could to be retained in the Army Reserve, he then attempted through
the physical disability evaluation system, to be medically retired.

19.  Nonetheless, his efforts were of no avail.  He was found physically
fit and then discharged because his QMP appeal was denied.  His discharge
and the reason thereof, were proper.  His continued performance of duty
raised a presumption of fitness which he has not overcome by evidence of
any unfitting, acute, grave illness or injury concomitant with his
separation.

20.  Consequently, the applicant’s request for physical disability
retirement – that he be reinstated on active duty for the purpose of
medical retirement, is denied.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___MM__  ___LE___  ___CK __  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.





                                  ______Melvin Meyer_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040005762                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050609                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |108.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]