RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:      13 October 2005
      DOCKET NUMBER:  AR20040009187


      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. Stephanie Thompkins           |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Ted S. Kanamine               |     |Chairperson          |
|     |Mr. Patrick H. McGann, Jr.        |     |Member               |
|     |Ms. Carol A. 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.  The applicant requests, in effect, a medical discharge and a change to
the narrative reason for separation to read "Medically Discharged" in lieu
of "Disability Existed Prior to Service" (EPTS).

2.  The applicant states that the narrative reason for separation is pure
speculation.  No medical evidence exists to indicate that the condition
existed prior to service.  She was in her barracks when she started feeling
progressively weak and numbness on her left side and requested her roommate
call 911.  She was transferred to the Darnell Army Community Hospital
Emergency Room.  She also states that she was left unattended in a critical
condition in the emergency room, which caused her to fall and resulted in
an additional head injury, a hematoma on the left forehead.  The emergency
resulted in immediate Aero Evacuation to Brooke Army Medical Center for
brain surgery.  There was no line of duty ever initiated for this injury.

3.  The applicant provides copies of her outpatient medical records.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel provides no statement or documentation on behalf of the applicant.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show she completed a medical
examination on 28 May 1999 and was found qualified for enlistment.  Item 74
(Summary of Effects and Diagnoses) is blank of any information.

2.  She enlisted in the United States Army Reserve, as a private first
class, pay grade E-3, effective 28 May 1999, for 8 years.  She completed
basic and advanced training as a food specialist in military occupational
specialty 92G.

3.  She entered on active duty in the Regular Army effective 4 January
2000.  She was promoted to pay grade E-4 effective 3 November 2002.

4.  On 2 December 2002, she requested medical retention on active duty.
She completed an Army of the United States Affidavit acknowledging that if
she elected to be separated from active duty as scheduled, she would not
after such separation or retirement be eligible for separation or
retirement for physical disability.
5.  On 5 December 2002, her request for retention on active duty for
medical reasons was approved beyond her original ETS (expiration term of
service), 3 January 2003 until 2 July 2003.  The affidavit was filed in her
military personnel records jacket.  She was placed in a medical hold status
on 5 June 2002.

6.  The applicant's outpatient medical records for the Winn Army Community
Hospital, Fort Stewart, Georgia, show she first complained of having
dizziness, weakness, and tingling on the right side of her face in 2002.
She stated she had several emergency room visits to a neurologist for the
same symptoms.  The applicant also stated that she had an atrioventricular
malformation (AVM) rupture on 19 April 2002.  She was seen on several
visits in 2003 for allergies, headaches, and other conditions.  She was
seen on 7 May 2004 for a referral to neurology for cerebral hemorrhaging.
She was seen on 17 May 2004 for a referral to a Physical Evaluation Board
(PEB).  She was seen on 7 June 2004, for a headache/pressure, dizziness,
and overheating.  She was seen on 12 July 2004 for severe stomach cramps.
She was seen on 1 September 2004, for a fall with subsequent swelling and
pain to her left ankle.  The medical records also contain several
hematology and urinalysis reports.

7.  On 18 June 2004, the applicant, with counsel, appeared before a PEB.
The PEB considered the applicant's condition of intracranial bleeding due
to (AVM), post operative with residual left hemi paresis and partial
complex seizures.  The PEB reevaluated all available medical records and
sworn testimony by the applicant.  The applicant's Medical Evaluation Board
(MEB) decision was provided to the PEB.  The PEB found the applicant's
medical and physical impairment prevented reasonable performance of duties
required by her grade and military specialty.  The PEB noted that there was
compelling evidence to support a finding that the current condition EPTS
and was not permanently aggravated beyond natural progression by such
service.  The PEB also noted that the applicant's AVM was a congenital
condition and her present symptoms are the results of the hemorrhage and
its treatment.  The PEB did not award the applicant a disability rating.

8.  The applicant did not concur with the findings and recommendations made
by the PEB.  In her rebuttal to the PEB, dated 25 June 2004, she stated
that she believes it was unjust not to receive any compensation from the US
Army for the disability she was presently suffering from.  She also stated
she did not understand how one would only speculate that she had an AVM
when there was no medical documentation to prove that it EPTS.  An AVM does
not often give any indication that it is present in most people and is hard
to detect.  This is also in compliance with being accepted into the
military in good physical shape without any detection of illnesses.  She
was advised by counsel that the PEB could only have rated her medical
condition based on an 8 year ruling of active service, because it was
believed to be pre-existant.  She does not understand how an 8 year ruling
of serving in the military should predict if a Soldier's condition is
aggravated by such service on those terms; therefore, being able to receive
compensation.

9.  In her rebuttal, she also stated she strongly believed that the
following stressors in her military career such as: basic training,
advanced individual training, and the hard labor of a food service
specialist, along with the three rotations in 1 year, had been a
contributing factor(s) of aggravating her medical condition beyond natural
progression.  For the 2 years she spent in the military, leading to the
intracranial hemorrhaging on 19 April 2002, it was evident that she had
accomplished a lot in a short period of time, by the awards she received.
Other than infantry, military police, and medical Soldiers, a food service
career in the Army is often overlooked and underestimated to be one of the
most demanding and stressful military occupational specialties.  As a
result of the neurological damage from the brain hemorrhage that nearly
killed her, it was evident that she continues to suffer from left side hemi
paresis and partial seizure complex.  Her present condition was further
aggravated by the medical retention on active duty for 1 1/2 years after
treatment.

10.  In her rebuttal, she further stated that she returned to active duty
on 3 October 2002, approximately 6 months after the brain surgery and
intense occupational and physical therapy.  Since October 2002, she has
worked in high stimulus environments, helping mobilized thousands of
Reservists and National Guard Soldiers, due to the Global War on Terrorism.
 Her physical therapist discontinued treatment because they felt as though
she would take a long time to heal.  Her MEB had been held up longer than
what it should have.  It normally takes 30-60 days.  She could not get
another consult from her physician because they wanted to finalize her MEB
and get her out of the Army.  In conclusion, she thinks that if a Soldier
was accepted into the military in good physical shape with no detectable
illnesses and served past the required basic and AIT training, they should
receive a fair chance of rating, especially if there was no way to prove
that there was a condition that existed prior to entering the service.
Therefore, she requested further intervention and reevaluation of her case,
which would be beneficial enough for her to receive compensation for her
present conditions.

11.  The PEB reviewed the applicant's rebuttal on 25 June 2004.  After
careful consideration, the PEB found that no change to the original
findings was warranted.  The PEB considered the fact that the applicant's
rebuttal contained no objective medical information which would warrant any
change to her PEB rating.  The PEB's rebuttal stated that an AVM is a
developmental (congenital) abnormality.  Any residual effect from the AVM
or its treatment is not ratable.  In accordance with Department of Defense
Instructions (DoDI) 1332.38, paragraphs E3, P4, 5, and 6 generally
recognized risks consistent with treatments for conditions EPTS are not
considered service aggravated; therefore, are not compensable.  The PEB
forwarded the applicant's case to the US Army Physical Disability Agency
(USAPDA) for final processing.

12.  On 8 July 2004, the Chief, Operations Division, USAPDA, advised the
applicant that after review of her entire case, the Agency concluded that
her case was properly adjudicated by the PEB.  The Chief stated that the
PEB correctly applied the rules that govern the Physical Disability
Evaluation System (PDES) in making its determination.  The findings and
recommendations of the PEB were supported by substantial evidence;
therefore, they were affirmed.  The Chief advised the applicant that she
may be eligible for medical care through the Department of Veterans Affairs
(DVA), if they determine that her illness or injury was service-connected.
Furthermore, she may apply for a disability rating through the DVA for any
of those service-connected illnesses or injuries.  The DOD PDES; however,
operating under a different set of laws than the DVA, may only compensate
Soldiers for any service-connected or permanently aggravated condition that
caused their separation and only for the degree of impairment at the time
of their separation.

13.  She was discharged from active duty effective 13 October 2004, in pay
grade E-4, under the provisions of Army Regulation 635-40, paragraph 4-
24B(4), Disability, EPTS, PEB.  She was assigned separation code JFM.

14.  Army Regulation 635-40 sets forth the basic authority for the
evaluation of physical fitness of Soldiers who may be unfit to perform
their military duties because of physical disability.  Paragraph 4-24b (4)
provides for separation for physical disability without severance pay.

15.  Army Regulation 635-40, Paragraph 5-1, states that this chapter
provides for separation of an enlisted Soldier for non-service aggravated
EPTS conditions when the Soldier requests a waiver of PEB evaluation.  This
chapter is applicable to enlisted Soldiers on active duty for more than 30
days.  Separation under the authority of this chapter is not to be confused
with separation under the provisions of Army Regulation 635-200, chapter 5.
 The latter provides for involuntary separation within the first 6 months
of entry onto active duty for failure to meet procurement fitness
standards.  Paragraph 5-2 of this regulation states that in order to
separate a soldier under this chapter, the case must meet the following
conditions:

      (1) the Soldier is eligible for referral into the disability system;
 
      (2) the Soldier does not meet medical retention standards as
determined by the MEB;
 
      (3) the disqualifying defect or condition existed prior to entry on
current period of duty and has not been aggravated by such duty;
 
      (4) the Soldier is mentally competent;
 
      (5) knowledge of information about his or her medical condition would
not be harmful to the Soldier's well being;
 
      (6) further hospitalization or institutional care is not required;
 
      (7) after being advised of the right to a full and fair hearing, the
Soldier still desires to waive PEB action; and
 
      (8) the Soldier has been advised that a PEB evaluation is required
for receipt of Army disability benefits, but waiver of the PEB will not
prevent applying for VA benefits.
 
16.  Army Regulation 635-5-1 provides the policy for separation program
designator (SPD) and corresponding narrative reason for separation based on
the regulatory authority for separation or discharge.  This regulation
provides the SPD for Army Regulation 635-40, paragraph 4-24b(4) as JFM,
Disability, EPTS.

17.  Title 10, United States Code, section 1203, provides for the physical
disability separation of a member who has less than 20 years service and a
disability rated at less than 30 percent.

18.  DoDI 1332.38, implements policy, assigns responsibilities, and
prescribes procedures for retiring or separation of service members because
of physical disability, make administrative determinations for service-
incurred or service-aggravated conditions, and authorizes a fitness
determination for members of the Reserve ineligible for benefits.
Paragraph E3 (Evidentiary Standards for Determining Compensability of
Unfitting Conditions) of this instruction specifies that any medical
condition incurred or aggravated during one period of service or authorized
training that recurs or is aggravated during later service or authorized
training, regardless of the time between, should normally be considered
incurred in the line of duty (LOD) provided the condition or subsequent
aggravation was not the results of the member's misconduct or willful
negligence.  In those cases in which the service member reverts to a
civilian status after the condition is incurred, the service member must
prove by the preponderance of evidence that the medical condition was
incurred or aggravated in the LOD and was not due to intentional misconduct
or willful negligence.

19.  DoDI 1338.38, Paragraph E4 (Conditions Presumed to be Pre-Existing)
specifies that the occurrence of disease as described in paragraph E.4.a
and E.4.b., shall be presumed to have existed prior to entry into military
service. E.4.a. specifies that signs or symptoms of chronic disease
identified so soon after the day of entry on military service (usually
within 180 days) that the disease could not have been originated in that
short a period will be accepted as proof that the disease manifested prior
to entrance into active military service.  E.4.b. specifies that signs or
symptoms of communicable disease within less than the medically recognized
minimum incubation period after entry on active service will be accepted as
evidence that the disease existed prior to military service.  E.5. (Medical
Waivers) specifies that members who entered the service with medical waiver
for a pre-existing condition and who are subsequently determined unfit for
the condition shall not be entitled to disability separation or retired pay
unless military service permanently aggravated the condition or hastened
the condition's rate of natural progression.  Members granted medical
waivers shall be advised of this provision at the time the waiver is
granted.  E.6. (Treatment of Pre-Existing Conditions) specifies that
generally recognized risks associated with treating preexisting conditions
shall not be considered service aggravation.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was given a MEB and PEB and
diagnosed with AVM, a congenital condition.  She was separated with a
disability, EPTS.

2.  The applicant's MEB, medical records, and her sworn testimony were
evaluated.  As such, her medical problems resulting from hemorrhaging and
treatment lead the PEB to determine that the applicant had the condition
prior to her entry on active duty.  This can be a valid assessment even
when the soldier was never treated for the condition prior to entry on
active duty, or even when the soldier never experienced any discomfort from
the condition.  The applicant's AVM condition remained non-symptomatic
while the individual was a civilian living a sedentary lifestyle.  When the
individual entered active duty and was required to perform physical
exercise, symptoms of that condition manifested; therefore, there was no
reason to believe that her medical condition was incurred or was aggravated
by the acts of service.  Accordingly, the applicant was separated from
active duty for disability, EPTS, and is not entitled to a medical
discharge.

3.  The applicant has failed to show, through the evidence submitted with
her application, or the evidence of record, that the Narrative Reason for
Separation and SPD Code issued to her were incorrect.

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

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__TSK___  PM_____  __CAK__  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.




                                  ___  Ted S. Kanamine____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR200400009187                          |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/10/13                              |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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