RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         04 JANUARY 2005
      DOCKET NUMBER:  AR2004105956


      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:

|     |Ms. Karen Heinz                   |     |Chairperson          |
|     |Mr. Robert Duecaster              |     |Member               |
|     |Mr. James Gunlicks                |     |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 a 30 percent disability rating for diabetes.

2.  The applicant states that the Physical Evaluation Board (PEB) did not
rate him for diabetes, incurred while he was on the TDRL (temporary
disability retired list). Laboratory results for fasting glucose was 207 on
8 September 1998 and on
10 December 1998, 176.  He is currently rated as 30 percent disabled
because of a mental disorder.  Army Regulation 635-40 requires a medical
appraisal of all defects incurred or discovered while on the TDRL.  The
narrative summary for the TDRL re-evaluation states that he had another
blood disorder.  He was not given a blood test, nor rated for diabetes.
Glucose results confirm that he had diabetes prior to the PEB.

3.  The applicant provides a copy of "Lab Results," a copy of a
psychological report, a copy of a 14 September 1998 letter to him from the
PEB, a copy of the PEB proceedings, a copy of the narrative summary for the
TDRL re-evaluation, a copy of orders placing him on the TDRL, and a copy of
orders removing him from the TDRL and permanently retiring him because of
his disability.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 7 October 1998.  The application submitted in this case
is dated     18 March 2004.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitation if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant was a captain with the Virginia Army National Guard on an
Active Guard/Reserve (AGR) tour of duty.  On 31 December 1996 he was placed
on the TDRL with a 30 percent disability rating.

4.  In an 11 June 1998 narrative summary for a TDRL re-evaluation, the
examining physician diagnosed the applicant's condition as delusional
disorder, persecutory type by history, hypercholesterolemia and
hypertension, and moderate psychosocial stressors.  He stated that the
applicant was medically unacceptable for military duty and recommended that
he be retired from the National Guard.  In the summary, the physician
indicated that the applicant stated that he had another blood problem but
was not sure of the diagnosis.  The report was signed by the examining
physician, approved by the medical officer commanding, and concurred in by
the applicant.

5.  On 14 September 1998 a PEB found the applicant physically unfit because
of his medical condition, delusional disorder, and recommended that he be
permanently retired with a disability rating of 30 percent.  The applicant
concurred.  He was removed from the TDRL on 6 October 1998 and permanently
retired with a 30 percent disability rating the following day.

6.  On 11 November 2002 and 19 November 2002 the applicant was examined by
a psychologist in Lexington, Virginia.  The examination was at his own
request, in order to get a 50 percent disability rating from the Army.  In
the report of that examination, the psychologist indicated that the
applicant was taking various medications, to include medication for
diabetes.  In that report, he referred to a discharge summary dated 20
March 2001 from a veterans hospital in Salem, Virginia, which offered a
diagnosis of delusional disorder, hypertension, hyperlipidemia, noninsulin-
dependent diabetes mellitus, and chronic disabling mental illness.  The
psychologist stated that he supported the applicant's claim for a 50
percent disability rating [because of his mental condition], indicating
that the 30 percent rating in September 1998 was perhaps an oversight.

7.  The "Lab Result" submitted by the applicant is dated 24 February 2004
and shows the glucose results and the dates of those results as indicated
by the applicant.

8.  Army Regulation 635-40 provides that an individual may be placed in a
TDRL status for a maximum period of 5 years when it is determined that the
individual is qualified for disability retirement under Title 10, United
States Code, section 1201, but for the fact that his or her disability is
not stable and the individual may recover and be fit for duty, or the
degree of severity may increase or decrease so as to warrant a change in
the disability rating.  A Soldier on the TDRL must undergo a period medical
examination and PEB evaluation at least once every 18 months to decide
whether a change has occurred in the disability for which the Soldier was
temporarily retired.  Medical examiners 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 an new disabilities while the Soldier has been on the TDRL.
Medical examiners will recommend removal of the Soldier’s name from the
TDRL as soon as the Soldier’s condition permits.

9.  The medical examination must be objective and complete.  One or more
physicians will conduct the examination.  Proceedings of previous PEB
actions and all medical records will be made available to the examiner.
Diagnostic, laboratory, and radiological procedures, including photographs,
should be used to the extent needed to establish and describe the Soldier's
current physically condition accurately.

DISCUSSION AND CONCLUSIONS:

1.  Notwithstanding the applicant's contentions and the documents that he
submits with his request, he has provided no evidence that he was diabetic
at the time of his physical disability retirement in 1998.  Nonetheless,
even if he did have a newly diagnosed condition, such as diabetes, while on
the TDRL, the condition is compensable only when unfitting and caused by
the condition for which he was placed on the TDRL, or directly related to
its treatment; or the evidence establishes that the condition was either
incurred while entitled to basic pay or as the proximate result of
performing duty, and was an unfitting condition when placed on the TDRL.
Otherwise, the condition shall be determined unfitting due to the natural
progression of the condition and noncompensable.  Absent evidence to the
contrary, competent medical authorities had access to all his medical
records, to include laboratory tests.  Those authorities recommended that
he be retired because of his mental condition.  He concurred and at that
time, six years ago, did not raise the issue of diabetes.

2.  The applicant has provided no probative evidence or a convincing
argument to support his request.  Therefore, his request for a 30 percent
disability rating for diabetes is not granted.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 7 October 1998; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on           6 October 2001.  However, the applicant did
not file within the 3-year statute of limitations and has not provided a
compelling explanation or evidence to show that it would be in the interest
of justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___KH __  ___RD __  ___JG  __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                  _______Karen Heinz_________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR2004105956                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050104                                |
|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.       |107.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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