RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         23 SEPTEMBER 2004
      DOCKET NUMBER:  AR2004101508


      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             |
|     |Ms. Deborah L. Brantley           |     |Senior Analyst       |


      The following members, a quorum, were present:

|     |Mr. Raymond Wagner                |     |Chairperson          |
|     |Mr. Roger Able                    |     |Member               |
|     |Ms. Eloise Prendergast            |     |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.  The applicant requests, in effect, that his Army disability retirement
information be corrected to include HIV (Human Immunodeficiency Virus)
infection as one of his medically disqualifying conditions.

2.  The applicant states, that he believes that he was “contaminated with
the HIV 1 virus” when he underwent surgery in May 1996 at the Portsmouth
Naval Hospital where he received “3-6 units of blood.”  He maintains that
he had no other risk factors, other than receipt of the blood units.

3.  He states that during his 2 weeks of recovery following surgery, he
“sweated profusely” and that his physician “checked for infection at the
two surgical sites, [his] hip and [his] throat” but no infection was found
and “the matter was given no further consideration” since an HIV test was
performed 1½ months prior to surgery.

4.  He states that in July 2002 he was determined to be HIV positive.  His
health care providers have expressed the opinion that the virus has been
present in him for several years although “for legal basis” his lead
physician can only word his statement/opinion as “results are pretty much
consistent with an infection that has been established for quite some time,
certainly more than a year and likely for several years.”

5.  The applicant states that a physician from the research arm of
Infectious Disease Consultants told him “that his professional opinion is
that the virus had been established for a minimum of 5 years, at the time
of discovery in July 2002.”

6.  The applicant states that he was married for nine “faithful” years,
separated from his spouse in June 2001, and was divorced in December 2002.
He states that his only sexual contact was with his spouse who is HIV
negative.  He states that their three children are also HIV negative.

7.  The applicant does state that he did have one additional sexual
encounter with a former girlfriend, but that encounter occurred 1½ months
prior to his HIV diagnosis and that she is also HIV negative and in a
committed relationship.

8.  The applicant states that at the time of his disability processing in
1996 the PEB (Physical Evaluation Board) did not have any post surgical
records to determine his status and that no HIV test was performed
following his surgery or while he was on the TDRL (Temporary Disability
Retired List).  He argues that the Army “had a responsibility to perform a
complete medical evaluation on [him] including HIV detection.”

9.  The applicant provides extracts from his service medical records noting
his negative HIV results 1½ months prior to his surgery, a statement from
his physician regarding how long the HIV infection has been present, HIV
lab results, and an e-mail from a former Naval officer whose family
suffered similar circumstances 8 years prior at the same military hospital.
 Under separate correspondence, the applicant provided results of HIV
testing for his former spouse, which was accomplished approximately 1 week
after the applicant tested positive for HIV.

CONSIDERATION OF EVIDENCE:

1.  Records available to the Board indicate that the applicant entered
active duty as an officer in 1985 following completion of OCS (Officer
Candidate School).

2.  A Report of Medical Board summary, completed in 1996 noted that the
applicant was admitted to the Neurosurgery Service, Naval Medical Center,
Portsmouth, VA for evaluation of myelopathy.  He was referred as a result
of progressive numbness, which had started in his right shin in 1988.  In
March 1996 he suffered a fall and the numbness progressed to include the
entire right leg, the right trunk and more recently numbness up to the
axilla and upper right arm.  In May 1996 he underwent a C5 corpectomy with
a C4-6 iliac crest bone graft fusion with Orion plating and had an
uneventful postoperative course.  The summary noted that the applicant had
a long history of a mildly progressive myelopathy, however his symptoms
were acutely worse after the March 1996 fall.  It was felt at that time
that the applicant contused his spinal cord.  His final diagnosis was
myelopathy and he was referred for Army disability processing.

3.  In August 1996 the applicant underwent an informal PEB which concluded
that his “myelopathy with cervical stenosis and C5 quadriparesis with
bladder urgency” prevented satisfactory performance of his duties but that
the condition had not stabilized to the point that a permanent degree of
severity could be determined and recommended that his name be placed on the
TDRL.  The applicant concurred with the findings and recommendation of the
informal PEB and waived his right to a formal hearing.

4.  The applicant was honorably discharged on 30 August 1996 and his name
placed on the TDRL the following day.

5.  The applicant underwent TDRL evaluations in 1998 and again in 1999 and
was continued on the TDRL.  In November 2000 the applicant underwent his
final TDRL PEB at which time the PEB determined that the applicant’s
condition was such that a final rating could be rendered.  On 22 January
2001 the applicant’s name was removed from the TDRL and he was permanently
retired with a combined disability rating of 40 percent attributed to left
upper and left lower extremity residual pain and weakness stemming from his
“status post anterior cervical discectomy and fusing with left
hemiparesis.”

6.  An August 2002 summary of a medical evaluation conducted by the
Infectious Disease Consultants noted that the applicant was a 42 year old
male “who was recently diagnoses with HIV infection.”  The summary noted
that the applicant had prior HIV tests in the past with negative results
and that on a routine test last month was found to have a positive HIV
test.  His past medical history was “significant for chickenpox, [and a]
history of recurrent genital herpes.”  The summary also noted that the
applicant was “disabled after an injury from the military.”  The summary
indicated that the applicant was then “currently asymptomatic and
antiretroviral therapy naïve.  He has never experienced any opportunistic
infection.  There is no significant evidence on physical exam of advanced
immunosuppression.”  The summary indicated that he would be re-evaluated in
two months.

7.  Extracts from the applicant’s service medical records do confirm that
he was periodically tested for HIV during his military service.

8.  Included with the applicant’s petition to this Board was a copy of his
former spouse’s HIV test results from August 2002.  In submitting that
information, the applicant noted that following his 1996 surgery it took
him 5 hours to regain consciousness and that his physician told his former
spouse that he should have regained consciousness within 1½ hours following
surgery.  He noted that he “underwent night/day sweats, and chills for
several days following surgery” and that his former spouse “began to have
repeated yeast infections several months after my surgery….”  He indicated
that he has no doubt regarding the source of his infection and states that
his experiences were similar to those of the spouse of a former Naval
officer “following her transfusion with HIV infected blood, allegedly to
have occurred at the Portsmouth Naval Med[ical] Cen[ter] also.”

9.  The statement from the former Naval officer noted that his spouse
“received a very large blood transfusion and the hospital actually ran out
of blood of my wife’s type and had to get additional blood from Portsmouth
General Hospital which is very near the main gate to the Naval Hospital.”
He stated that:

      Because my wife had such a bad time at the naval Hospital we were
      advised by a doctor that further health problems could develop
      associated with her bad experience at the Naval hospital.  So before
      we even knew about the HIV we had filed a medical malpractice suit
      against the Naval Hospital.  It was about this same time frame that we
      found out about the HIV so the HIV was added to the lawsuit.  A court
      order was issued to the Naval Hospital to turn over my wife’s medical
      and surgical record.  For whatever reason, the surgical record is
      maintained separately from the main medical record.  The hospital
      conveniently lost the medical record…our attorney advised us that
      without the medical record and/or investigative results, we could not
      win.  Consequently, the lawsuit was dropped.

10.  A statement from the applicant’s physician, rendered in April 2003
noted that the applicant had been a patient in his office since August of
last year and that results of his tests were “pretty much consistent with
an infection that has been established for quite some time, certainly more
than a year and likely for several years.  These results are not consistent
with acute seroconversion or recently acquired infection.”

11.  Army Regulation 600-110 established the policies and provisions for
the identification, surveillance, and administration of personnel infected
with HIV.  That regulation notes that all Active and Reserve Component
personnel will periodically be tested and retested for evidence of HIV
infection.  It states that while assignment limitations may be warranted
for HIV infected Soldiers, disability separation is not an automatic
requirement.  It states that HIV infected officers or enlisted Soldiers who
no longer desire to remain on active duty may request separation under
appropriate separation regulation.  It also states that HIV infected
Soldiers who demonstrate progressive clinical illness or immunological
deficiency, as determined by medical authorities, do not meet medical
retention standards and may be processed for separation under polices and
procedures established for disability processing.  While clinical staging
will not serve as the criterion for determining medical fitness or a
disability rating, the clinical manifestations that determine a stage of
the disease may, in fact, contribute to determining a Soldier’s fitness for
duty.

12.  Army Regulation 635-40 states that the mere presences 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, rank, or rating.

13.  That regulation notes that any member of the PEB, the Soldier, or
counsel acting in the Soldier’s behalf may request additional document.  If
requested documents cannot be obtained a memorandum for record will be
included in the case file reflecting all efforts made to obtain the
information.

14.  Army Regulation 635-40 also states that a Soldier’s name may be placed
on the TDRL when it is determined that the soldier is qualified for
disability retirement but for the fact that his or her disability is
determined not to be a permanent nature and stable.  A Soldier on the TDRL
must undergo a period medical examination and PEB to decide whether a
change has occurred in the disability for which the Soldier was temporarily
retired.  The purpose of the TDRL periodic medical examination is to
determine the Soldier’s condition at the time of the examination, decide if
a change has occurred in the disability for which the Soldier was placed on
the TDRL, decide if the disability has become stable enough to permit
removal from the TDRL, and identify any new disabilities while the Soldier
has been on the TDRL.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s 2002 HIV diagnosis is certainly unfortunate, however,
the source of the infection cannot conclusively be attributed to the blood
transfusions that the applicant underwent during his operation in 1996,
even though the applicant maintains that he has no other risk factors.
While the applicant’s current medical officials suggest that the infection
has been present for sometime, even they cannot specify the source of that
infection.

2.  While he maintains that he had postoperative problems, including a
significant delay in regaining consciousness and profuse sweating, the
documents available to the Board indicate that the applicant’s
postoperative course was unremarkable.  Even without access to the surgical
records it would reasonably be expected that had the applicant experienced
the significant postoperative complications he notes that such conditions
would have been noted in medical records which were available to the PEB.

3.  The applicant’s contention that his situation was similar to that of
the spouse of the former Naval officer is noted.  However, the documents
available to the Board indicate that the former Naval officer’s spouse
received transfusions obtained from a civilian health facility, something
that the applicant did not.  There appears to be no correlation between the
applicant’s circumstance and those of the former Naval officer’s spouse.

4.  The applicant’s contention that the military was required to test him
for HIV infection as part of his initial PEB and in subsequent TDRL
evaluations is also without foundation.  To suggest that the military
should have tested for HIV as a routine part of their examinations would
also suggest then that the military should run tests for every conceivable
medical condition which might possibly exist.  Such a suggestion is neither
reasonable, practical, nor fiscally sound.  The applicant presented to the
PEB with complaints related to myelopathy.  There were no other medical
conditions which exhibited themselves, during the applicant’s initial PEB,
nor during his subsequent follow-up examinations, which would have
warranted testing for any further conditions.

5.  The applicant’s initial disability processing, subsequent periodic
physical examinations, and final retirement, were accomplished in
compliance with applicable laws and regulations.  The absences of surgical
records, or his subsequent HIV infection, is not evidence of any error or
injustice, nor do they warrant the relief requested by the applicant.

6.  In order to justify correction of a military record the applicant must
show, or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy that requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___RW__  __RA ___  ___EP __  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.



                                  ____ Raymond Wagner______
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR2004101508                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040923                                |
|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]