RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        15 NOVEMBER 2005
      DOCKET NUMBER:  AR20050001690


      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. Stanley Kelley                |     |Chairperson          |
|     |Mr. John Meixell                  |     |Member               |
|     |Mr. Robert Duecaster              |     |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 records be corrected to
show that he was retired by reason of disability in 1998 rather than being
placed on the Temporary Disability Retired List (TDRL).

2.  The applicant states that the Army's assumption that they acted
correctly in characterizing his disability rating as temporary did not
apply in his particular case.  He maintains that the TDRL was not fully
undertaken and he may have been unfairly denied an increased level or
rating.

3.  The applicant notes that he was placed on the TDRL for a period of 5
years and as such should have remained on the TDRL until November 2003.  He
states, however, that he was removed from the TDRL in October 2002.  He
states that he was originally scheduled for a TDRL examination in May 2000,
but that examination was not realized.  He states that an examination in
December 2001 proved to be his first and only TDRL examination.

4.  The applicant states that in May and July 2002 physicians recommended
that he be retained on the TDRL.  He also notes that there is an unresolved
question on his Medical Evaluation Boards (MEB) which failed to discuss a
1997 positive Lyme disease test, and a 1988 remark in his health records
concerning a rash all over his body.  He also states that in April 2003 a
radiological examination noted abnormalities in his lumbar spine which he
maintains may have been an oversight during his initial disability
processing which could have resulted in his permanent retirement at that
time, rather than being placed on the TDRL.

5.  The applicant provides a statement, extracts from his service medical
records, limited documents associated with his disability processing, and
copies of radiologic examinations completed in 2003.

CONSIDERATION OF EVIDENCE:

1.  Records available to the Board indicate the applicant entered active
duty on
5 December 1984 and served continuously through a series of reenlistment
actions.

2.  An extract from his service medical records notes that in June 1988 the
applicant complained of a rash to medical personnel.  He was prescribed
Benadryl for the rash.  There was no diagnosis of Lyme disease on the 1988
medical treatment document.
3.  The applicant's performance evaluation reports indicated he
consistently passed the Army's annual physical fitness test until March
1997 when a physical profile precluded him from taking the fitness test.

4.  The applicant's complete disability process documentation was not in
records available to the Board, but was limited to the following documents,
or portions of documents provided by the applicant as part of his
application to this Board.

5.  A March 1997 physical profile noted the applicant suffered from
spondylolisthesis (stress fracture of a vertebra which weakens the bone so
much that it is unable to maintain its proper position and the vertebra can
start to shift out of place) and neurogenic claudication (pain in the legs
that occurs with exercise and may be relieved with rest) and chronic
fatigue syndrome.  His P-3 profile precluded heavy lifting, running, and
riding in tactical vehicles.

6.  On 12 March 1997 the applicant underwent a medical evaluation as part
of a MEB.  The evaluating physician noted the applicant was 30 years old
and had a history of several years of intermittent low back pain which
became more constant in the last 1 to 2 years.  The applicant also reported
intermittent bilateral buttock and posterior leg paresthesias, which
typically occurred when standing erect for greater than 15 minutes.  He
denied focal weakness in his lower extremities, no decrease in bowel or
bladder function, and denied persistent numbness in his lower extremities.
The applicant also complained of intermittent episodes of vertigo, and
headaches consistent with migraine headaches.  However, on follow-up the
applicant noted the headaches only lasted 20 to 30 minutes, were relieved
with Motrin, and that he had not missed any work due to the headaches.  He
also reported complaints of intermittent twitches or jerks of his muscles
in multiple regions of his body, which were not associated with any pain or
triggered by any particular activity.

7.  The evaluating physician noted that the applicant's past medical
history was notable for evaluations of multiple systemic complaints
including noncardiac chest pain, chronic fatigue, and tobacco abuse.  The
physician concluded that the applicant was limited in his standing
tolerance due to low back pain and development of bilateral lower extremity
paresthesias secondary to his spondylolisthesis and degenerative disc
changes, but that he had not suffered any permanent loss of strength of
sensory function in his lower extremities.  The physician noted the
applicant was enrolled in physical therapy for spine stabilization and that
spine stabilization may effectively control the applicant's symptoms and
progression.  If the symptoms did not respond to conservative spine care,
then spine stabilization with either bracing or neurosurgical intervention
could be necessary.
8.  The evaluating physician concluded the applicant suffered from (med
diag 1) degenerative disc disease of the lumbosacral spine, (med diag 2)
degenerative joint disease of the lumbosacral spine with grade 1
spondylolisthesis, (med diag 3) neurogenic claudication secondary to med
diag 1 and 2, (med diag 4) intermittent benign muscle jerks; (med diag 5)
benign positional vertigo, and (med diag 6) mixed headache syndrome with
both migrainous and tension type headaches, historically not
incapacitating.  The evaluating physician recommended referral to a
Physical Evaluation Board (PEB).

9.  On 9 April 1997 an addendum was added to the applicant's original MEB
evaluation.  The addendum noted the applicant's chief complaint as fatigue.
 The evaluating physician stated the applicant reported no longer being
able to perform his duties adequately and that in general his fatigue
reduced his daily activities by over 50 percent and his energy was not
restored by sleep.  The physician noted the applicant had undergone an
extensive evaluation for secondary causes of chronic fatigue to include a
normal physical exam, chest
x-ray, EKG, and multiple laboratory studies all of which were unremarkable.
 The copy of the MEB, provided by the applicant, contains a hand written
notation, which appears to have originally made on a "sticky note" which
indicates "Lyme Titer?" and "see tab 1, but see p2 of MEB."  The source of
that information is not identified.  However, attached to the April 1997
addendum is a specimen test noting positive results for Lyme disease and a
March 1997 treatment document which notes the applicant's "history is not
consistent with Lyme of CMV infection so I am not sure what to make of
these [positive] test results."

10.  A second addendum to the original MEB evaluation was completed on
14 April 1997.  The evaluating physician, a psychiatrist, noted the
applicant was referred from the neurology department for multiple physical
complaints, some with objective evidence of disease, others without
objective evidence of disease and behaviors and responses on neurologic
exam that support nonphysiologic complaints and responses.  The
inconsistency of subjective response on a single exam raises concern for
embellishment.  The psychiatrist noted the applicant reported his physical
problems started in 1993 and that he was extremely concerned and
preoccupied with his poor health.  He noted the applicant reported a
variety of complaints and that he tried physical therapy for approximately
one week and then self-discontinued, claiming that it was not helping him.
The psychiatrist rendered a diagnosis of:

      undifferentiated somatoform disorder, as manifested by multiple
      physical complaints unsupported by objective findings, not
      intentionally produced, causing significant impairment, more than six
      months in duration; external precipitating stress, minimal, routine
      military duty, degree of
      predisposition, none known; degree of psychiatric impairment for
      military duty, moderate; degree of psychiatric impairment for social
      and industrial adaptability, definite; untreated and unimproved.

11.  In early May 1997 the applicant complained of a headache, fatigue,
weakness in his arm and leg muscles, a cold, stuffy nose, and coughing
since the AM.

12.  On 13 May 1997 the MEB proceedings referred the applicant to a PEB.
The proceeding included the 6 medical diagnoses reflected on the March 1997
MEB medical evaluation summary.  The reverse side of the MEB proceedings,
which would have indicated if the applicant concurred or nonconcurred with
the proceedings was not included with the documents provided by the
applicant to the Board.  He provided only the front of the MEB proceedings.

13.  On 29 May 1997 the applicant was again seen by medical personnel, at
his request, for a follow up examination and second opinion.  The notations
on the examination document are extensive but conclude with a plan for the
applicant to have follow-up care with his primary care physician with
general stretches and non-impact aerobic activity starting at 10 minutes,
and gradually increasing.

14.  On 18 June 1997 the applicant's PEB was discontinued citing the
disorganized MEB, an illegible consult for EMG/NCV, and the numerous
addenda which all addressed the same problems.


15.  On 29 July 1997 the applicant was referred to physical therapy for
lower back pain and chronic fatigue syndrome.  He was instructed in
stretching exercises, low impact exercise, and establishing an exercise
program.  A similar consult sheet was issued on 25 September 1997.


16.  On 1 April 1998 the applicant underwent a PEB.  The PEB proceeding
notes only two ratable medical diagnoses; undifferentiated somatoform
disorder manifested by multiple physical complaints unsupported by
objective findings (MEB diag 2 and psych addendum) rated at 30 percent; and
low back pain with degenerative joint and disc disease with scoliosis,
grade I spondylolisthesis, spinal stenosis and neurogenic claudication (MEB
diag 1, neuro addendum dated 5 March 1998, neuro-surg addendum dated 9
February 1998, and narrative summary dated 11 March 1997) rated at 20
percent.  A third MEB diagnosis, which was not specifically identified, was
determined not to be unfitting and therefore not rated.  The April 1998 PEB
concluded the applicant's multiple conditions prevented performance of his
duties, but his condition was not sufficiently stable for a final
adjudication.  As such, the PEB recommended
the applicant's name be placed on the TDRL with a combined disability
rating of 40 percent and a reexamination in October 1999.  The
recommendation was approved on behalf of the Secretary of the Army.


17.  As with the MEB proceedings, the applicant only provided the front
portion of the PEB proceedings, and did not include the reverse of the form
which would have indicated whether he concurred or nonconcurred with the
findings and recommendation of the PEB.  There is, however, no indication
in available documents that he nonconcurred with the findings and
recommendation of the April 1998 PEB and no indication he demanded a formal
hearing.

18.  According to documents provided by the applicant, in May 2001 he was
notified that he should undergo a periodic medical examination during or
before August 2001.  There is no indication if the applicant underwent that
physical or if he did not, and why.  A second letter, dated 3 December
2001, also informed the applicant that he was to undergo a medical
examination during or before January 2002.  The applicant, a resident of
Guam, was directed to report to Hawaii for the evaluations.

19.  In April 2002 the applicant underwent a psychiatric evaluation at a
civilian facility in Guam.  The evaluation noted the applicant was referred
to establish the presence of a continuing disability for social security
benefits due to somatoform disorder.  The evaluating physician noted the
applicant was not taking any prescription medication and used Motrin and
Tylenol as needed.  The prognosis was that the applicant was then not
interested in any psychiatric treatment and that he did not consider his
alcohol use to be a problem.  The psychiatrist concluded that little
progress could be made until denial and symptoms of avoidance were
confronted.

20.  On 8 May 2002 the applicant underwent a TDRL evaluation which noted he
reported for the evaluation for the diagnosis of "undifferentiated
somatoform disorder."  The evaluator noted that the report of a previous
TDRL evaluation was not available for review.  The evaluation noted that
the applicant reported that his lower back pain was less prominent and
occurred only when he abused his back, that intermittent joint pain
throughout his body was less frequent and could not be attributed to any
cause or circumstance, that twitches and spasms were still there but not as
worrisome, and that he gradually weaned himself from ibuprofen which he now
used once in a while.  The applicant related that all of the other symptoms
listed in the PEB had resolved over time.  He noted he slept well, had a
good appetite, and was optimistic about his future.  He states he was
otherwise in good health and not taking any prescribed medicines.  The
evaluating physician concluded that the applicant's undifferentiated
somatoform disorder had improved by not completely resolved and recommended
the applicant remain on the TDRL.

21.  The front page of a 13 August 2002 memorandum to the applicant, which
he provided with his application to this Board, notes that the PEB received
his recent periodic medical examination and other available records and
conducted an informal hearing.  The informal PEB recommended the applicant
be removed from the TDRL and the memorandum informed the applicant that he
needed to indicate if he agreed with the findings and recommendations of
the PEB and that if he wished to submit a rebuttal it must be based on
specific issues and fully justified.

22.  The applicant underwent a formal PEB on 24 September 2002 which
concluded that his undifferentiated somatoform disorder had substantially
improved without evidence of significant mood disorder, thought disorder,
or other impairments in function.  They noted that while improved, the
condition had not improved to the extent that he was fit for duty and as
such, concluded that a final rating of 10 percent was appropriate.  The PEB
noted that the TDRL examination suggested full unrestricted activity is
permitted for his back pain and concluded no disability rating for that
condition was warranted.  The PEB recommended the applicant's name be
removed from the TDRL and authorized severance pay if otherwise qualified.
The PEB proceedings noted the applicant was represented by appointed
counsel and appeared before the formal PEB.

23.  On 21 October 2002 the applicant was provided copies of the documents
removing him from the TDRL and informing him that he would no longer
receive retirement payments from the Defense Finance and Accounting Service
after the effective date of his removal from the TDRL.  He was also asked
to return his military identification card.

24.  The actual date the applicant's name was removed from the TDRL is
unknown, although the applicant stated in his application that his name was
removed on 21 October 2002.

25.  According to a June 2003 radiologic report, the applicant showed
spondylolysis with trace spondylolisthesis present at L5.  By March 2004
his radiologic report noted large broad based disc bulge at L5/S1 which may
mechanically impact exiting nerve roots lateral to the foramina,
bilaterally.  It also noted spondylolysis of pars interarticularis at L5,
bilaterally, with no evidence of spondylolisthesis or hypertrophic
sclerotic bone changes.


26.  Army Regulation 635-40, which establishes the policies and provisions
for physical evaluation for retention, retirement, or separation of Army
Soldiers, provides that an individual may be placed on the TDRL (for the
maximum period of 5 years which is allowed by Title 10, United States Code,
section 1210) when it is determined that the individual's physical
disability is not stable and he or she may recover and be fit for duty, or
the individual's disability is not stable and the degree of severity may
change within the next 5 years so as to change the disability rating.
Following reevaluation, and once it has been determined that the
individual’s medical condition has stabilized, the individual could
ultimately be found fit, permanently retired providing his final disability
rating was at 30 percent or higher, or, in cases where the final disability
rating was less than 30 percent, entitled to disability severance pay.
Only individuals whose final disability rating is 30 percent or higher are
considered permanently retired by reason of physical disability.

27.  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.

28.  Title 10, United States Code, section 1201, provides for the physical
disability retirement of a member who has at least 20 years of service or a
disability rated at least 30 percent.

29.  Army Regulation 635-40 states that the mere presence of an impairment
does not, in 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.  To ensure all Soldiers are
physically qualified to perform their duties in a reasonable manner,
medical retention qualification standards have been established in Army
Regulation 40-501.  These retention standards and guidelines should not be
interpreted to mean that possessing one or more of the listed conditions or
physical defects signifies automatic disability retirement or separation
from the Army.

30.  According to information from the Center for Disease Control (CDC)
Lyme disease is caused by bacterium and is transmitted to humans by the
bite of infected blacklegged ticks.  Typical symptoms include fever,
headache, fatigue, and a characteristic skin rash called erythema migrans.
If left untreated, infection can spread to joints, the heart, and the
nervous system.  Lyme disease is diagnosed based on symptoms, physical
findings (e.g., rash), and the possibility of exposure to infected ticks;
laboratory testing is helpful in the later stages of this disease.  Most
cases of Lyme disease can be treated successfully with a few weeks of
antibiotics.

31.  Army Regulation 40-501, indicates that migraine, tension and cluster
headaches when manifested by frequent incapacitating attacks may be cause
for referral to an MEB.  There were no specific disqualifiers for Lyme
disease, rashes, fever, or fatigue, although chronic fatigue was a
disqualifier for aviation duty.

32.  Army Regulation 635-40 further states that the combined percentage
rating approved at the time the Soldier was placed on the TDRL cannot be
changed by the PEB throughout the period the Soldier is on the TDRL.
Adjustment will be made at the time of removal from the TDRL to reflect the
degree of severity of those conditions rated at the time of placement on
the TDRL and any ratable conditions identified since placement on the TDRL.

33.  Additionally, Department of Defense Instruction Number 1332.38, which
implements policy, assigns responsibilities, and prescribes procedures for
the separation or retirement for physical disability notes that in addition
to the above the TDRL periodic examinations should also address the
etiology of all medical impairments diagnosed since the member was placed
on the TDRL, to include:

      a.  where the new diagnosis was caused either by the condition for
which the member was placed on the TDRL or the treatment received for such
a condition.

      b.  if not caused by the condition for which the member was placed on
the TDRL, whether the member’s medical records document incurrence or
aggravation of the condition while the member was in a military duty
status; and if so, whether the condition was cause for referral into the
Disability Evaluation System at the time the member was placed on the TDRL.

34.  Title 38, United States Code, sections 1110 and 1131, permit the
Department of Veterans Affairs (VA) to award compensation for disabilities
which were incurred in or aggravated by active military service.  The VA,
which has neither the authority, nor the responsibility for determining
physical fitness for military service, awards disability ratings to
veterans for conditions that it determines were incurred during military
service and subsequently affect the individual’s civilian employability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's entire service medical records would have been
available to the physicians which evaluated the applicant as part of his
MEB evaluation.  The fact that his medical records suggested that he may
have contracted Lyme disease is not evidence that the condition rendered
him unfit for military service.  The MEB evaluation was designed to
identify medical conditions which may contribute to the Soldier's inability
to continue his service to the military, and then it becomes the
responsibility of the PEB to render decisions on the fitness or unfitness
of conditions identified by the MEB.  The MEB was never intended to become
a litany of each and every medical visit the Soldier may have had during
his military career.

2.  It is noted that during the 9 April 1997 addendum to the applicant's
initial MEB the evaluating physician did comment that the applicant's
history was not consistent with Lyme or CMV infection and questioned the
positive test result.

3.  The applicant provides no evidence or documentation with his
application to this Board, which substantiates that the Army did not
properly evaluate his medical condition at the time of his release from
active duty when his name was placed on the TDRL.  His argument that
because his back condition may have deteriorated since the PEB's final
decision in 2002, or his belief that he suffered from Lyme disease which he
maintains was not fully discussed in the 1997 proceedings is not evidence
that the initial PEB did not have the necessary facts, or that his medical
conditions were sufficiently stable in 1997 to warrant a permanent rating
high enough to result in disability retirement rather than being placed on
the TDRL.

4.  It is noted that the applicant would have been involved in his
disability processing and would have had the opportunity to raise
objections at various stages in the process.  The evidence, however,
suggests, because there is no evidence of a formal PEB in 1997, that the
applicant concurred with the findings and recommendation of an informal PEB
in 1997, thereby confirming his agreement with the finding that his
undifferentiated somatoform disorder and low back pain was not stable
enough for a permanent rating and the decision to place him on the TDRL was
the appropriate recommendation.  He has submitted no evidence that
indicates otherwise.  Had he believed that the 1997 decision was unfair or
unjust he could have requested a formal hearing.  The fact that he did not
further supports a conclusion that his condition was properly evaluated and
the rating decision appropriate.

5.  The applicant's suggestion that he should have been allowed to remain
on the TDRL for the entire 5 year period allowed by regulation and law is
unrealistic and fiscally irresponsible.  If retention on the TDRL for the
entire 5 year period were a requirement, there would be no need to schedule
periodic physical examinations and only a single evaluation would be
necessary just as the individual's 5th year on the TDRL was about to
expire.  The intent of the TDRL is to render a final
decision when medical conditions sufficiently stabilize so that final
adjudication can be accomplished.  It would be unreasonable to retain an
individual on the TDRL for years after his or her medical condition
stabilized and continue to pay him or her retirement benefits merely
because the 5 year authorized period had not expired.  Retention of such
individuals could deprive those, whose medical conditions resolved
sufficiently, from returning to an active status as quickly as possible.

6.  When the applicant underwent his physical examination in 2002 he
informed the evaluating physician that his lower back pain was less
prominent and occurred only when he abused his back.  He also related that
while his "twitches and spasms" were still there they were not as worrisome
and all of the other symptoms listed in the PEB report had resolved over
time.  Such evidence, which was provided by the applicant himself, supports
the conclusion of the 2002 final PEB.  The applicant has provided no
medical evidence which contradicts his own statement to the evaluating
physician during his 2002 TDRL evaluation.

7.  The fact that the applicant's back condition might now be
deteriorating, as evidence by subsequent radiologic reports, is not
evidence of any error or injustice in the original findings of the PEB.
The condition was documented and its progression, as it may impact the
applicant’s future employability is more appropriately addressed through
the Department of Veterans Affairs rating system.

8.  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

___SK___  __JM ___  __RD ___  DENY APPLICATION






BOARD DETERMINATION/RECOMMENDATION:

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.




                                  ______Stanley Kelley_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050001690                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051115                                |
|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.                      |                                        |


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