RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          1 September 2005
      DOCKET NUMBER:  AR20050001839


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Stanley Kelley                |     |Chairperson          |
|     |Ms. Barbara J. Ellis              |     |Member               |
|     |Mr. Richard T. Dunbar             |     |Member               |

      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, through a court remand, reconsideration of his
June 2001 request to increase his disability rating to 50 percent and his
March 2004 request to further increase his disability rating an additional
30 percent due to his being diagnosed with diabetes.

2.  The U. S. Court of Federal Claims noted, in part, the government argued
that the applicant waived any objection to his disability rating when he
failed to contest the findings and recommendation of the Physical
Evaluation Board (PEB) in 1998.  The Court noted that the applicant's
counterargument was that he was mentally disabled at the time of his
discharge and therefore failed to fully appreciate or understand the import
of failing to object to his disability rating.  The Court found that where
a serviceperson suffers from a mental disability and contends that he
failed to fully appreciate the import of his actions due to his mental
disability, he should not be deemed to have "waived" his objections to his
rating because he waived his right to an administrative hearing.
Accordingly, the government's motion to dismiss the applicant's complaint
on the basis of "waiver" was denied.

3.  The Court also noted, in part, that the applicant claimed that the 30
percent mental disability rating he received was not supported by the
record and he should have received a 50 percent rating.  The Court noted
that Army Regulation 635-40 provides for a 50 percent disability rating
when (a) the member is mentally competent to handle financial affairs and
to participate in PEB proceedings; (b) the member requires intermittent
hospitalization; (c) the member overtly displays some signs or symptoms of
mental illness, such as …delusions…; (3) the member requires constant
medications or psychotherapy; (3) the member exhibits extreme job
instability; and (f) the member exhibits significant social maladjustment.

4.  The Court also noted that Army Regulation 635-40 provides for a 30
percent disability rating when (a) the member does not require
hospitalization; (b) the member displays some signs or symptoms of mental
illness on examination; (c), the member usually requires medication and
psychotherapy; (d) the member usually exhibits job instability; and (e) the
member exhibits borderline social adjustment.

5.  The Court agreed that the applicant met the criteria for a 50 percent
disability rating under the regulation.  The applicant had been
hospitalized for psychiatric reasons in 1996 and 2001.  The applicant
overtly displayed delusional and
paranoid behavior on multiple occasions and he was overtly delusional when
his condition was first identified.  The Court noted that, by contrast, the
criteria for a  30 percent rating indicate that symptoms are identifiable
only upon examination.  The Court noted that the Army had indicated the
applicant had "considerable" social and industrial impairment.

6.  The Court found that the Army Board for Correction of Military Records
(ABCMR) failed to properly evaluate the evidence of record in light of the
criteria set forth in Army Regulation 635-40.  The record established that
the applicant met the criteria for a 50 percent disability rating and that
his 30 percent rating was not consistent with the regulations.  In such
circumstances, the decision of the ABCMR not to amend his disability rating
was arbitrary and capricious.

7.  The Court also found, however, that the ABCMR's decision regarding the
applicant's diabetes was supported by the record and that the applicant
failed to meet his burden of proof regarding his diabetes claim.  He never
submitted medical evidence to show that he was in fact suffering from
diabetes at the time he was discharged; he simply submitted tests that
established that he could have had diabetes at that time.  He also failed
to submit medical evidence to show that his noninsulin-dependent diabetes
was sufficiently severe in 1998 to have rendered him unfit for service and
therefore entitled to a disability rating.

8.  The Court found that, based on the record presented, the ABCMR's
refusal to amend the applicant's disability rating to account for his
diabetes was not arbitrary or capricious.

9.  The applicant provides, in addition to the Court remand decision, his
18 March 2004 ABCMR application and a letter dated 14 January 2005 (with
pages          16 through 19 of a Lab Result printout dated 22 November
2004 indicating he tested high for glucose levels as of 8 September 1998;
page 38 of a Progress Note printout dated 22 November 2004 indicating he
was prescribed an oral diabetes medication; an extract from his service
medical records dated 14 July 1988 indicating he was treated for a tick
bite; and a DA Form 2173 (Statement of Medical Examination and Duty Status)
dated 18 June 1994 indicating he was bitten by a tick during training.

10.  The applicant also provides a letter dated 13 April 2005 (with the
same page 19 of a Lab Result printout dated 22 November 2004 plus page 23
of the printout indicating he was first given the A1c test (a test used to
monitor the glucose control of diabetics over time) on 6 November 2001; a
handwritten note dated    16 March 2005 from his doctor; and a 1 April 2005
letter from another doctor
noting the applicant probably did have problems with low energy level and
loss of vigor from 1998 on and that possibly some of that was contributed
to by his diabetes).

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were
summarized in the previous consideration of the applicant's case by the
ABCMR in Docket Number AR2001062089 on 14 March 2002 (in part, to increase
his disability rating to 50 percent) and by the ABCMR in Docket Number
AR2004105956 dated 4 January 2005 (to award him an additional 30 percent
disability rating for his diabetes).

2.  While in the Army National Guard and on an Active Guard Reserve tour as
a captain, the applicant's battalion commander referred him to the
Community Mental Health Activity for a mental status evaluation.  The
reason for the referral was the applicant's isolating himself in the office
and often getting very defensive, spending several nights in his office
rather than going home, and continuously thinking that people were out to
get him.  On several occasions, the applicant had complained that his
office, car, and home were bugged.

3.  On 12 January 1996, the applicant was hospitalized with an admitting
diagnosis of depression.  He was later diagnosed as suffering from a
delusional disorder.  On 1 July 1996, an MEB determined he was suffering
from a delusional disorder, persecutory type, and referred him to a PEB.

4.  On 21 August 1996, an informal PEB determined the applicant was unfit
for duty because of his delusional disorder (code 9208 (paranoid disorders)
under the Veterans Administration Schedule for Rating Disabilities (VASRD))
and placed him on the Temporary Disability Retired List (TDRL) with a 30
percent disability rating.  He was placed on the TDRL on 1 November 1996,
at which time he was paid at the 50 percent rate.

5.  On 14 September 1998, during a TDRL re-examination, a PEB determined
that the 30 percent disability rating for the applicant's delusional
disorder accurately reflected the degree of severity of his condition and
considered that his condition had stabilized sufficiently for rating
purposes.  The PEB recommended permanent disability retirement with a 30
percent disability rating.  On 6 October 1998, he was removed from the TDRL
and placed on the Permanent Disability Retired List.

6.  In his 14 January and 13 April 2005 letters, the applicant once again
raised the issue of his being diagnosed with high glucose levels on 8
September 1998, prior to his permanent physical disability retirement.  He
also raised a new issue, that he was bitten by a tick in 1988 and in 1994.
He contends that he was never tested for diabetes or Lyme Disease before
the TDRL PEB, both of which can cause loss of vigor and low energy levels.

7.  Army Regulation 635-40 governs the evaluation of physical fitness of
Soldiers who may be unfit to perform their military duties because of
physical disability.  It states that there is no legal requirement in
arriving at the rated degree of incapacity to rate a physical condition
which is not in itself considered disqualifying for military service when a
Soldier is found unfit because of another condition that is disqualifying.
Only the unfitting conditions or defects and those which contribute to
unfitness will be considered in arriving at the rated degree of incapacity
warranting retirement or separation for disability.

8.  Department of Defense Instruction (DODI) 1332.38 (Physical Disability
Evaluation), paragraph E3.P6.2.4 states that conditions newly diagnosed
during TDRL periodic physical examinations shall be compensable when the
condition is unfitting and the condition was caused by the condition for
which the member was placed on the TDRL or the evidence of record
establishes that the condition was incurred while entitled to basic pay or
as the proximate result of performing duty and was an unfitting disability
at the time the member was placed on the TDRL.

9.  DODI 1332.39 (Application of the Veterans Administration Schedule for
Rating Disabilities) notes that the VASRD percentage ratings represent, as
far as can practicably be determined, the average impairment in civilian
occupational earning capacity resulting from certain diseases and injuries.
 However, not all the general policy provisions of the VASRD are applicable
to the Military Departments.  Many of the policies were written primarily
for VA rating boards and are intended to provide guidance under laws and
policies applicable only to the VA.  This Instruction replaces some
sections of the VASRD.

10.  DODI 1332.39 states that the rating criteria for VASRD codes 9200
through 9511 are essentially the same as the Court noted were outlined in
Army Regulation 635-40.  One minor but notable exception for the 50 percent
rating is, whereas Army Regulation 635-40 states that the member requires
intermittent hospitalization, DODI 1332.39 states that the member may
demonstrate a significant requirement for hospitalization.

DISCUSSION AND CONCLUSIONS:

1.  The U. S. Court of Federal Claims found that the ABCMR failed to
properly evaluate the evidence of record concerning the disability rating
awarded the applicant in light of the criteria set forth in Army Regulation
635-40.  The Court noted that the record established that the applicant met
the criteria for a 50 percent disability rating for his mental disorder and
that his 30 percent rating was not consistent with the regulations.

2.  While the Board notes that the applicant did not meet all of the
criteria listed for award of a 50 percent disability rating (there is no
available evidence to show what medications he might have been taking or
what psychotherapy he was undergoing), there is sufficient evidence to show
he met more of the criteria to warrant a 50 percent rating than he did for
a 30 percent rating.

3.  The applicant still contends that he should be awarded an additional
         30 percent disability rating because he was diagnosed with a high
glucose level on 8 September 1998 and because he had been bitten by ticks,
which can cause Lyme Disease.  He contends that both diabetes and Lyme
Disease can cause loss of vigor and low energy levels.

4.  The year 1998 is not the key year to consider.  DODI 1332.38 states
that conditions newly diagnosed during TDRL periodic physical examinations
shall be compensable when the condition is unfitting and the condition was
caused by the condition for which the member was placed on the TDRL or the
evidence of record establishes that the condition was incurred while
entitled to basic pay or as the proximate result of performing duty and was
an unfitting disability at the time the member was placed on the TDRL.

5.  The applicant was first diagnosed with a high glucose level in
September 1998, before he was permanently retired for disability in October
1998; however, he was placed on the TDRL in November 1996.  In addition, as
noted by the Court, the applicant never submitted medical evidence to show
that he was in fact suffering from diabetes at the time he was discharged
in 1998, much less in 1996.  He also failed to submit medical evidence to
show that his noninsulin-dependent diabetes was sufficiently severe in 1998
to have rendered him unfit for service and therefore entitled to a
disability rating.

6.  As regards the applicant's being bitten by a tick and possibly having
Lyme Disease, he provides no evidence to show he had Lyme Disease at the
time of his placement on the TDRL in November 1996 or that a "loss of
vigor" or low energy levels rendered him unfit for service at that time.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

__sk____  __bje___  __rtd___  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant partial amendment of the ABCMR’s decision in Docket Number
AR2001062089 dated 14 March 2002.  As a result, the Board recommends that
all Department of the Army records of the individual concerned be corrected
by showing that he was awarded a 50 percent disability rating when he was
permanently retired for disability in October 1998.

2.  The Board determined that the evidence presented is insufficient to
warrant amendment of the ABCMR’s decision in Docket Number AR2004105956
dated   4 January 2005.

3.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the applicant's newly-requested
relief.  As a result, the Board recommends denial of so much of the
application that pertains to increasing his disability rating based on his
being bitten by a tick which he contends resulted in loss of vigor and low
energy levels.




            __Stanley Kelley______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050001839                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050901                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |108.02                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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