RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        21 September 2006
      DOCKET NUMBER:  AR20050012799


      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. Joyce A. Wright               |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. William F. Crain              |     |Chairperson          |
|     |Mr. Jeffrey C. Redmann            |     |Member               |
|     |Mr. David W. Tucker               |     |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 he be promoted to master
sergeant (MSG/E-8), with back pay and allowances, due to disparate
treatment in the Physical Disability Evaluation System (PDES) that kept him
on active duty (AD) from August 1999 to November 2004.  He also requests an
increase in his 70 percent disability rating due to the disparate treatment
in the PDES.

2.  The applicant states, in effect, that the Blanchfield Army Community
Hospital (BACH) Commander initiated a 15-6 investigation [an investigation
under the provisions of Army Regulation 15-6] into his claims of disparate
treatment in the disability evaluation system.  The investigating officer
(IO) found that all boards from 1999 to 2004 did not adhere to regulations
about listing all diagnoses for fair compensation for illnesses and
injuries.  He was kept on AD during this time because the commander said
they would try other measures.  The final physical evaluation board (PEB)
adjudicated his case before release of the 15-6 results.

3.  The applicant provides an additional statement in support of his
request.  He states, in effect, that the first injustice occurred when the
Brook Army Medical Center (BAMC), PEB, at Fort Sam Houston, Texas, and the
United States Army Physical Disability Agency (USAPDA) failed to follow
Department of Defense (DOD), Army Regulations (AR), and the United States
law in the adjudication of multiple medical evaluation boards (MEB)
conducted from 1999 to 2004.  The unlawful acts of all these agencies
resulted in his being retained on AD for 6 years without the ability to be
promoted with his peers and subordinates when this process began in 1998.
All his peers and subordinates attained the rank of sergeant first class
(SFC/E-7) or Master Sergeant (MSG/E-8) by the time of his discharge.

4.  The applicant states, in effect, that he would not ask for this
promotion if he did not actually contribute to the readiness of the units
he was assigned to.  In Headquarters and Headquarters Company (HHC), 8th
Battalion, 101st Aviation Regiment, he worked in the S-3 Section, in
several positions, all while it was determined that he was no longer fit
for service in the Army.  After being assigned to the medical holding
company on 13 March 2001, he served in several medical holding company key
positions.  He sought out greater responsibility as a good NCO
(Noncommissioned Officer) should.  It is not fair that others doing the
same work could achieve promotion for their efforts while he could not
obtain promotion due to being flagged for physical disability evaluation
for such an extended period of time, from 1998 to 2004. 


5.  He states, in effect, the second injustice was also related to his
physical disability processing through the PDES.  In their haste to process
him out of the military, all three agencies failed to properly adjudicate
his case resulting in a lower percentage in compensation for the injuries
and illness he sustained while on active duty.  The USAPDA could have
pressured BACH to give them the results of the 15-6 investigation.  He does
not believe they even asked for the results because, as the evidence shows,
the 15-6 legal sufficiency was completed on 4 October 2004.

6.  The applicant elaborates on several documents that detail the sequence
of events that will be discussed in the evidence of record and attached for
review.

7.  The applicant provides a copy of the 15-6 investigation results,
several copies of NCO evaluation reports (NCOER), several copies of
letters of recommendation, a copy of his disability rating, and a large
number of other documents, in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he entered AD on 14 November
1984, as an aircraft powerplant repairer (15B).  He served in Saudi Arabia
from 8 September 1990 to 6 April 1991.  He was promoted to sergeant (SGT/E-
5) effective 1 March 1992.

2.  On 28 March 1992, the applicant was involved in a motor vehicle
accident at 1100 hours.  He was admitted to BACH, Fort Campbell, Kentucky,
at 1900 hours.
The nature and extent of his injuries were multiple contusions and
abrasions.  Medical authority opined that his injury was not likely to
result in a claim against the Government for future medical care and was
incurred in the line of duty (LOD).

3.  The applicant reenlisted on 13 January 1995, for 4 years, with an
established expiration of term of service (ETS) of 12 January 1999. 

4.  The applicant provided a copy of HA (Health Affairs) Policy 96-026
prepared by a physician in the Office of the Assistant Secretary of Defense
(SECDEF), Health Affairs, dated 31 January 1996, Subject:  Policy for
Disability Evaluation System and its Interface with the Comprehensive
Clinical Evaluation Program (CCEP).  The author stated that in response to
concerns by veterans about
potential health effects from service during Operation Desert Storm/Shield,
the DOD initiated the CCEP to evaluate service members with physical
complaints.
The PEB in reviewing disability cases had found that findings from the CCEP
were often not included in MEBs so that these findings could not be used in
adjudicating cases.

5.  The HA policy memorandum, stated that "individuals identified as not
meeting medical retention standards shall have a MEB completed and
forwarded to the Service PEB for the condition which does not meet
retention standards.  CCEP participants who are diagnosed with conditions
which do not meet medical retention standards shall receive a MEB and enter
the PEB process.  Referrals of a CCEP participant can occur at any point
during the CCEP process if a diagnosis with impairment which does not meet
medical retention standards has been identified.  However, CCEP
participants who have undiagnosed medical complaints and impairments should
not be referred to the MEB/PEB until they have completed Phase II of the
CCEP clinical protocol.  This guidance does not change the previously
established criteria that referral for Phase II evaluation was based on the
clinical judgment of the CCEP clinician."

6.  The policy memorandum directed that all disability cases that involve
service members who had undergone any part of the CCEP should include: (a)
a medical board report, or addendum to an original medical board report,
with a summary of the CCEP findings; and (b) copies of all CCEP
documentation, e.g., test results, consultation reports, et al.  Failure to
include the foregoing information in any case referred to the PEB for
adjudication shall result in its return to the convening authority. 

7.  HA Policy 96-026, concluded by directing that cases shall be
adjudicated in accordance with Service regulations.  Only those diagnoses
determined to be unfitting will be rated.  Those diagnoses found unfitting
shall be rated according to the VASRD (Veterans Administration Schedule for
Rating Disabilities) section for that diagnosis.  The member would be
afforded all appeal rights.

8.  On 5 June 1996, the applicant reinjured his right knee playing
basketball.  Further treatment included temporary profiles for activity, as
tolerated.  He continued to have problems with his right knee.  He had an
MRI (Magnetic Resonance Imaging) scan of his right knee on 15 September
1996 and this was suspicious for a medial meniscal tear.  He had surgery on
1 July 1997 and a medial meniscal tear was repaired.

9.  On 22 September 1997, he reinjured his right knee during field
training.  He continued to have pain in his knees.  He had surgery on his
right knee on 2 July 1998 and it was found that the chondromalacia had
progressed. 

10.  On 28 September 1998, he extended his enlistment for 11 months to his
RCP (Retention Control Point).  A new ETS of 12 December 1999 was
established for him.

11.  The applicant was issued a permanent profile of 114111, on 1 September
1999, due to right knee (CMP [cap pain]) (Arthritis) and left knee CMP
(PFPS [Patella Femoral Pain Syndrome]).  His assignment limitations were to
"Avoid repetitive squatting and jumping.  No activity which increased knee
pain."  Other limitations were "Standing and sitting as tolerated.  No
backpack over 20 pounds."

12.  On 21 October 1999, the applicant requested that he be retained beyond
his RCP of 13 November 1999 for completion of medical treatment,
hospitalization, and/or physical disability processing.  His request was
approved until 13 May 2000.

13.  On 17 November 1999, the applicant's case was considered by an MEB.
The MEB diagnosed the applicant as having right knee chondromalacia
secondary to anterior cruciate ligament tear and medial meniscal cruciate
ligament reconstruction and medial meniscal repair; left knee
patellofemoral pain syndrome; and obstructive sleep apnea (OSA).  All
theses diagnoses were medically unacceptable in accordance with AR 40-
501.  His ailments were ruled to have been incurred in the LOD, while he
was entitled to base pay, and none existed prior to service (EPTS).  The
findings and recommendations were approved on 25 November 1999.  The MEB
recommended that the applicant be referred to a PEB.

14.  The applicant appeared, with counsel, before a formal PEB on
12 January 2000, at Fort Sam Houston, Texas.

15.  The PEB considered the member's condition described in records and
determined that he was physically disabled based on a diagnoses of
bilateral knee pain with right chondromalacia secondary to ACL tear and
medial meniscal tear status post surgical repair; left patellofemoral
pain syndrome; and obstructive sleep apnea.  Based on these diagnoses,
the PEB found the applicant's medical and physical impairments prevented
reasonable performance of duties required
by grade and MOS (military occupational specialty).  The PEB recommended
a combined disability percentage rating of 10 percent and that he be
separated with severance pay, if otherwise qualified.  The PEB indicated
that his separation was not based on a disability from injury or disease
received in the LOD as a direct result of armed conflict or caused by an
instrumentality of war and incurring in the
LOD during a period of war as defined by law.  The PEB also indicated
that the applicant's disability did not result from a combat related
injury.  The Board adjourned on the same day.

16.  On 20 January 2000, the applicant requested a profile for his sleep
apnea condition be issued and forwarded to his MEB.  After several
discussions with his treating physician, it was determined that the
applicant had mild sleep apnea, which was treatable with his current
therapy, and did not interfere with his ability to perform his duty or
restrict his deployabilty.  It was determined that a profile was not
warranted.

17.  On 7 February 2000, the Commander, Headquarters, US Army Medical
Department Activity (MEDDAC), Fort Campbell, prepared a memorandum for the
President, PEB, Fort Sam Houston, Texas, Subject:  Medical Statement [for
the applicant].  In the memorandum, the commander stated that he met with
the hospital IG (Inspector General) and the applicant, and had subsequently
reviewed the applicant's records.  He provided a summary which would assist
the PEB and in his opinion, may prove to be helpful.  He stated that the
applicant had been seen at their facility and by civilian providers on
multiple occasions for the evaluation and treatment of sleep apnea. 
Efforts to treat this conservatively had been made by use of a CPAP
(continuous positive airway pressure) machine. 

18.  On 9 November 1999, he sought consultation on his own from a local
Otolaryngologist who assigned considerable severity and disability to the
illness.  As a result of the failure to improve with the CPAP machine,
the applicant was being considered by the oral surgery staff for surgical
procedures which would constitute a major reconstruction of the bony and
soft tissue framework of his oral and nasopharynx.  The commander stated
he was told that the applicant's respiratory disturbance index was 31
percent which fell under the moderate sleep apnea rating.  His own
inexpert perusal of DODI 1332.29 Code 6847 would place the applicant in
the category of "Definite Industrial Impairment for Sleep Apnea
Syndromes."

19.  On 7 February 2000, the Acting IG (Inspector General) prepared a
memorandum for record, Subject:  Complaint of Medical Treatment, pertaining
to the applicant.  The IG described his situation as a Soldier with OSA who
was
diagnosed with this condition in May 1999.  He currently uses a CPAP
machine, which give him constant problems.  The applicant, after thoroughly
researching, had stated that his attending physician should have
automatically profiled him as T-3 and referred him to an MEB in accordance
with Army Regulation 40-501.  His chief complaint was his current medical
treatment from the Chief, Otolaryngology
Head and Neck Surgery Service.  The applicant stated that the attending
physician was not following Army Regulation 40-501 and DODI concerning his
condition.

20.  The physician, in his reply to the Acting IG, stated, in effect, that
the applicant's condition did not warrant a board because he did not meet
all the criteria for a referral to the MEB.  He stated that he spoke with
the applicant on several occasions and saw him once about his condition.
The physician stated that the applicant's condition was mild.  The
physician wrote an addendum to the board about his sleep apnea and stated
to him that it was very clear and concise. The physician also stated that
he did this as a favor for the applicant because there were individuals on
AD with sleep apnea and they were deployable.  The physician also stated
that he spoke with the PEBLO (PEB Liaison Officer) at BACH about the
applicant's case and was informed by the MEB coordinator that what he wrote
in his addendum was sufficient for the PEB.

21.  The PEBLO, at BACH, stated to the IG that they could not influence a
physician to write a current diagnosis or change a medical statement.  The
PEBLO only makes sure that each doctor follows regulatory guidelines.
Frustrated with the medical care system at BACH, the applicant went to a
civilian physician and paid out of pocket fees to get a current diagnosis
for his condition.  He was informed by the IG that the final approving
authority for submitting any medical diagnosis rests with the Deputy
Commander for Clinical Services (DCCS).  The applicant replied that he
would like for the attending physician and the MEB coordinator to answer
several questions: 

      (a)  Why is the attending physician not following DOD instruction?

      (b)  Why is the attending physician refusing to state current
treatment and diagnosis in the addendum?

      (c)  After the applicant went to the PEB, he informed the MEB
coordinator what was missing from his medical records.  In accordance with
Army Regulation 635-40, appendix C, why did the MEB coordinator not inform
the physician of the
necessity of this requirement to obtain sufficient documentation (medical
and non-medical)?

      (d)  Is it the MEB coordinator's responsibility to give guidance to
the physicians on following DOD instructions? and

      (e)  Is it the MEB coordinator's duty to assist Soldiers with
obtaining information and documentation for MEBs and PEBs?
22.  The IG concluded that the applicant, a Soldier in the US Army, was
his own advocate.  He had thoroughly researched and gone through great
lengths to get his current condition properly annotated so that the PEB
could make a final decision on his disability rating.  It was clear to the
IG that there were discrepancies in what the attending physician stated
and what he actually wrote.  Stating that he did the Soldier a favor was
not appropriate.  He also stated that the applicant was trying to get
money for his condition.  That was for the PEB to decide, not the MEDDAC.
Whether a Soldier is before the board for his knees or any other condition
does not give the physician the right to dismiss any current condition the
Soldier may have.  The IG stated that the PEBLO should assist all Soldiers
to the fullest extent by supplying any information that will be helpful to
the Soldiers.  If the Soldiers have questions, the PEBLO should make it
clear to the Soldiers what regulation or DODI they are basing their
answers on.

23.  On 11 February 2000, the President of the PEB, Fort Sam Houston,
prepared a memorandum for the Commander, US Army MEDDAC, Fort Campbell,
Subject: Discontinuance of PEB Proceedings pertaining to the applicant.
The President of the PEB indicated that the PEB proceedings pertaining to
the applicant were discontinued.  He continued that, "Your memorandum,
dated 7 February 2000, indicated that [the applicant's] sleep apnea
condition might result in greater impairment than evaluated by the PEB due
to his inability to tolerate the CPAP machine.  Additionally, you
indicated that [the applicant] would undergo further evaluation to
determine if surgery was indicated to resolve his condition.  Once it
is determined that [the applicant] has, in fact, received all indicated
treatment for optimal medical improvement, please provide an addendum
detailing his residual impairment caused by the diagnosed sleep apnea
condition.  If the information or documentation was not provided to the
PEB within 60 days, per PDA (Physical Disability Agency) policy, the case
would be terminated."

24.  On 28 March 2000, the applicant submitted another request for
extension of his ETS of 18 May 2000.  The Chief, Patient Administration
Division endorsed his request and indicated that he was being evaluated for
medical board processing and it was undetermined how long this process
would take.  His request was approved until 12 November 2000. 

25.  On 27 September 2000, the applicant submitted another request for
extension of his ETS for medical reasons.  His request was approved until
11 May 2001.

26.  On 19 October 2000, the applicant's attending physician, at BACH,
sent an email to the Commander, Medical Company, Medical Holding Company
and Student Detachment, MEDDAC, regarding the applicant.  The physician
stated that the applicant had a hand-written referral turned in to them by
another physician.  The attending physician stated he had discussed the
applicant's case with the other physician in detail, since he had dictated
his MEB addendum and was very familiar with him.  His referral to them was
unnecessary.  The applicant's sleep apnea was a side issue; his MEB was
for arthritis for which there was no objective supporting evidence and he
did not receive any disability from the MEB, but was recommended for
separation from the Army.  Since he did not receive any disability for his
arthritis he has been very aggressive pursuing the sleep apnea.

27.  The applicant's attending physician stated that he had submitted IG
complaints because he would not amend his MEB addendum dictation to
dramatize his symptoms in addition to his Patient Representative
complaints.  He absolutely would not operate on him and neither would the
other physician.  His OSA was easily treated with a CPAP machine and was
not in any way caused by his military service but by his craniofacial
development.  The physician stated that he was found not fit for military
service because of his subjective DJD (Degenerative Joint Disease) (in his
knees he thought).  He recommended that the applicant pursue additional
evaluation and treatment through the VA (Veterans Affairs) rather than
retaining him on AD because he could not stay on AD anyway even if the OSA
was corrected.  Technically, he needed a follow-up sleep study
6 months after his oral surgery to document the presence/absence of
continued OSA and its severity if still present before another surgery.

28.  The physician concluded that the applicant was found not fit for duty
due to his Orthopedic problems, and the OSA was a side issue that should
not continue him on AD since he still would not be fit for duty whether the
OSA was corrected or not, and he did not think that he needed a UPPP
(Uvulopalatopharyngoplasty), followed by another 6 months on AD in Medical
Hold only to wait for the follow-up sleep study.

29.  On 30 October 2000, the Commander, Medical Company, Medical Holding
Company and Student Detachment, MEDDAC, sent the email, dated 19 October
2000, to the applicant.

30.  On 10 April 2001, the applicant submitted another request for
extension of his ETS for the completion of medical treatment,
hospitalization and/or physical disability processing.  The diagnosis
included in the memorandum of transmittal was Arthritis bilateral knee. 
His request was approved until 10 November 2001.

31.  On 2 October 2001, the applicant submitted another request for
extension of his ETS.  His request was approved until 9 May 2002.

32.  On 27 March 2002, the applicant submitted another request for
retention on active duty beyond extension of his ETS to receive medical
treatment.  The diagnoses included in the memorandum of transmittal were
Arthritis Knees.  His request was approved until 8 November 2002.

33.  On 19 February 2003, a physician from the Sleep Disorders Center,
Pulmonary and Critical Care Medicine, WRAMC (Walter Reed Army Medial
Center), prepared a recommendation titled:  Chief Complaint: Subject: OSA
for the applicant's consideration by the PEB for obstructive sleep apnea.
The physician diagnosed the applicant as having:  (a) Mild OSA; (b)
Intolerance to current medical therapeutic option (continuous positive
airway pressure using a face or nasal mask); and (c) Unsuccessful attempt
at surgical corrections of the said disorder (mild OSA).  The physician
recommended:  (a) Additional surgery evaluation for UPPP or tracheostomy.
The physician noted the applicant did not wish to undergo further surgical
intervention at this time; (b) Revocation of driving privileges.  The
physician had faxed a request to the Tennessee Department of Motor Vehicles
and instructed the applicant that he was not to drive from this point on
until he was medically treated and asymptomatic; and (c) the applicant was
referred to the PEB and it should be noted that this Soldier did not meet
the medical retention standards of Army Regulation 40-501, paragraph 3-41c.

34.  On 5 March 2003, the applicant's case was reconsidered by a MEB.  The
MEB diagnosed the applicant with the same diagnosis as on his MEB dated
17 November 1999.  The finding and recommendations were approved on
17 March 2003.  The section of the DA Form 3947, Action by Patient, is
incomplete.  The applicant did not indicate that he agreed or disagreed
with the MEB's recommendations.  This portion of the form is unsigned.

35.  On 26 March 2003, the applicant submitted a rebuttal to his MEB.  He
stated that he was writing his rebuttal in an effort to correct the
mistakes that were clearly evident within his MEB packet.  The information
was supposed to reflect his current medical conditions in their entirety. 
By placing his signature on his MEB, he was stating that he reviewed the
MEB and it did reflect his current health.  In his current state of his
medical condition, he could not say that this was true.  In his inexpert
opinion, the MEB was dictating what is fit or unfit by failing to consider
or list all medical conditions that he had a diagnosis for on his MEB
proceedings (DA Form 3947).  He refers to Army Regulation 40-501,
paragraph 3-4, which states possession of one or more of the conditions
listed in this chapter did not mean automatic retirement or separation
from the service.  Physicians were responsible for referring Soldiers with
medical conditions to an MEB.  It was critical that MEBs were complete and
reflect all of the Soldier's medical problems and
physical limitations.  The PEB would make the determination of fitness or
unfitness.  The PEB, under the authority of the PDA, would consider the
results of the MEB, as well as the requirements of the Soldier's MOS, in
determining fitness.

36.  The applicant stated that he was trying to determine why he had
diarrhea for the last 9 to 10 years and requested that his board
proceedings be put on hold until the cause was determined.  He reported he
had appeared before a PEB at Fort Sam Houston which gave him a clear
explanation of what was needed to adjudicate his case.  He stated he and
his DAV (Disabled American Veteran) representative had included additional
documentation to his case and yet, his case was dismissed due to lack of
medical information.  He elaborates in detail on several discrepancies that
were found in his case.  He added that in past MEBs, personnel had informed
him that all his diagnosed medical conditions would not be listed in his
MEB and that he could only be boarded for the conditions listed on his
MEB. 

37.  On 26 March 2003, the Medical Hold First Sergeant prepared a
memorandum for the commander, Subject:  Listing of Diagnoses on the DA Form
3947.  The first sergeant stated that on or about 26 March 2003, at 0945
hours, he spoke with a USAPDA staff doctor.  He asked the doctor whether or
not a Soldier who served in the Persian Gulf War and suffered from symptoms
they believed came from the Department of the Army classification of
symptoms believed to be associated with the Persian Gulf Illness should
have this listed on the DA Form 3947.  The USAPDA staff doctor answered
that the service member must have completed the examination through CCEP
and this should be annotated.  He then asked the doctor about all medical
conditions.  The USAPDA staff doctor stated that it must be a medical
diagnosis to be listed on the DA Form 3947.  If there was no diagnosis it
could not be listed on the DA Form 3947.

38.  On 26 March 2003, the applicant sought legal advice regarding his
medical proceedings.  The applicant provided counsel a document that
listed his diagnoses. His diagnoses included his Arthritis in his knees
and OSA.  However, the applicant informed counsel that he relayed this
information to his physician(s) and to him [his commander] that there
were other symptoms and conditions that needed to be included in the
diagnoses and considered in the medical evaluation process regarding his
release from the military.  Counsel noted that not all ailments were
considered or listed for his medical evaluation.  He understood that not
all of his medical difficulties were sufficient in and of themselves to
medically disqualify him from further military service.  Counsel stated,
that regulations dictate that all conditions, even those conditions that
do not suffice solely for medical disqualification, should be considered,
as a whole, when making the determination of whether or not to separate a
Soldier based on medical reasons.
39.  Counsel elaborates on several medical regulations regarding the
applicant's case which were not followed.  Army Regulation 40-400 (Patient
Administration), chapter 7, numerously stated that the boards are to use
the VA guidelines to describe the nature and degree of severity of the
member's condition.  However, if all ailments are not listed, how could the
board assess an accurate condition? In additional, paragraph 7-9 required a
listing of "all diagnoses in descending order of significance."

40.  Counsel stated that Army Regulation 40-501, paragraph 3-4, states that
it is critical that MEBs are complete and reflect all of the Soldier's
medical problems and limitations.  Without all of the pertinent information
regarding the applicant's health included in the diagnoses, how can any
report from any board be "complete" and reflect "all" of the applicant's
physical limitations.

41.  Counsel also elaborates on the MEB Physician's Checklist which was
essential for adjudication of military disability cases.  Counsel noted
that the applicant was a Gulf War Veteran and that several of his medical
limitations are symptomatic of Gulf War Syndrome; however, no notation of
his diagnoses sheet included the ailments and or its characteristics. 
Counsel concludes that the applicant's MEB Physician's checklist also asks
that the "Soldier's history, physical examination, and laboratory data are
consistent with, and support the conclusions of the MEB."  The MEB's
determination, if based on incomplete diagnoses, is not "consistent" with
the applicant's medical record, which color for the reader a more involved,
more complicated medical history that the diagnoses sheet would lead one to
believe.

42.  On 4 September 2003, the applicant reappeared before an MEB at Fort
Gordon, Georgia.  The MEB diagnosed the applicant as having right knee
pain, left knee pain, OSA, gastroesophageal reflux disease (GERD), mild
Asthma, and an adjustment disorder.  All were medically acceptable.  His
ailments were determined to have been incurred in the LOD, incurred while
entitled to base pay, did not EPTS (existed prior to service), and were not
service aggravated.  The applicant desired to continue on AD but his
continuance on AD was medically contraindicated.  The findings and
recommendations of the board were approved and he was referred to a PEB for
further adjudication.  The applicant disagreed with the MEB's findings and
recommendations. 

43.  On 15 September 2003, the applicant submitted a rebuttal to his MEB,
dated 4 September 2003.  In his rebuttal he discussed several conditions
which he had been diagnosed with that did not meet aviation standards and
were cause for referral to the PDES in accordance with regulation.  He
stated that his NCOER clearly shows that he was not working in his MOS due
to his various conditions. 
44.  The applicant informed his physician that he could not be retained in
his MOS due to his sleep problems and other issues.  He felt that the
physician needed to argue with him over this so he just let him go ahead.
His argument was how his persistent daytime hypersomnolence kept him from
performing his duties.  He informed the physician that it was a safety
issue but he supposed he chose to ignore it.

45.  The applicant felt that his Narrative Summary and MEB were
inadequate.  It showed that the doctor did not research his MOS nor what
the retention standards were.  It looked like his previous MEBs were at
Fort Campbell.  His question was, "is someone here at Fort Campbell
advising him on what to write?"  It seemed that way.  The narrative
summary did not go into detail at all.  It basically had no input from
him as to the frequency or severity of his various illnesses.  The
applicant asks, "How can the MEB adjudicate without input from the
Soldier nor the 8latest treatments and diagnoses from his medical
records?"  If the physician had researched his MEB process he would have
seen the previous attempts were all kicked back even from the PEB due to
lack of current treatment and diagnoses.

46.  The applicant saw his physician on 20 May 2003 and had not had a
conversation with him since.  He was diagnosed with Chronic Fatigue and
Irritable Bowel Syndrome again since that time.  The physician set up an
appointment with him to see if there were any changes.  He found this quite
strange.  He was later switched to the physician's care in an effort to
expedite his MEB process.  The physician was aware that he had a
Colonoscopy shortly before he met with him at Fort Gordon.  The applicant
asks, "where is the mentioned of this within his narrative summary?"
Another thing that struck him as strange was that when he called the Fort
Gordon medical board section they had no clue that the physician had
completed his MEB or that he had received it. He was informed to go through
them and that was one of the reasons he was sent to Fort Gordon because it
seemed that the medical board section here could not complete the task by
following regulations.  He was sent to see the physician because he was
supposed to be so good at completing MEBs but it seemed that he had lost
this ability, as was evidenced by his board.

47.  The applicant felt that the most interesting thing about his case was
how the physician seemed to have a lot of errors within his dictation.  He
listed him as having 19 years of service when he did not.  He failed to
fill out his MOS title properly which would show he was in aviation.  The
narrative summary indicated that he entered the Army in 1989; however, he
entered in 1984.  His profile indicated Obstructive Sleep Apnea well
controlled with a CPAP machine; however, he had not been on CPAP therapy
for over a year.  He was using a
CPAP machine every night now since the end of July 2003.  It was still a
work in progress but he usually goes most of the night without a mask on.
It seemed to be related to whether or not he was suffering from GERD and
allergies.

48.  No mention of his belief that a lot of his symptoms came from Persian
Gulf service.  Persian Gulf Illness along with the symptoms were not listed
on his DA Form 3947 or mentioned in his narrative summary.  If the
physician had read the PDA Policy Number 10, he would know that he had not
satisfied the requirement for the MEB.  It was also listed in the
Physician's Checklist as a requirement, which he obviously had not read or
chose to ignore.  He gave the physician two packets, one from 1994 and one
from 1999.  He asks, "what more did he need?"  His previous MEB's and PEB
were supposed to be sent to the MEB section at Fort Gordon.  He asks, "did
PEBLO fail to send the material?"  He stated that he would more than gladly
provide any information the doctor needed.

49.  He stated that the way the narrative summary was written leads him
to believe that he wishes to discount all of his illnesses.  Without
supporting findings of evidence how could he find them medically
acceptable?  The conditions alone were sufficient to render him unable to
meet retention standards in aviation.  He would like to know how the
physician came to this conclusion.  Some of his medications rendered him
unable to meet retention standards.  So how did the illness meet
retention standards?  In his 18 years and 10 months time of service, he
had always found that you could find someone's true intentions in the way
that they write.  It was crystal clear what the doctor's intentions were.
 The funny thing was he could take away the supporting medical evidence.
So why even humiliate himself with this biased MEB.  He also found
interesting that there was no psychiatrist or sleep specialist present
for his MEB.  So what he was being told was that two doctors, without
specialty in either field, were so competent in their experience that
they just considered themselves experts in the field.  Had they read the
governing regulations, they would see that they were grossly wrong
without having specialists present for the MEB.

50.  The applicant felt that he could not get evaluated fairly.  He did not
understand why but he guessed he should expect that not everyone has his
beliefs in duty, honor, integrity, and selfless service.  These unethical
actions were making his medical conditions worse day-by-day.  They had a
mental evaluation that said all of this was making him worse but did anyone
care?  It seemed that no one did.  He had been on Medical Hold for almost 4
years for conditions diagnosed in 1992 and 1994, which did not make sense.

51.  On 8 October 2003, the applicant received a response from the DOD IG,
informing him that an inquiry of his complaint was being conducted.

52.  On 29 October 2003, the Chief, Department of Mental Health, Dwight
David Eisenhower Army Medical Center, Fort Gordon, Georgia, prepared a
narrative summary regarding the applicant's diagnosis of OSA.  Upon review
of testing that was performed in May 2003, and interview with the
applicant, the physician opined that there was no psychiatric basis to OSA.


53.  On 23 January 2004, the IG, Headquarters, Dwight David Eisenhower Army
Medical Center, Fort Gordon, GA, prepared a short letter in response to an
IG Action Request filed on 20 October 2003 concerning changes made to the
applicant's MEB proceedings with the documents being re-signed by the
approving authorities.  The IG reported that an inquiry was conducted into
his complaint and revealed that corrections were made to his DA Form 3947
and the form had not been re-signed.  Changes were made in the applicant's
favor and PEBLO did not interpret Army Regulation 40-400 to require
original signatures.  The IG concluded that the applicant's matter had been
presented to the proper authority.

54.  On 2 February 2004, an investigating board commenced at BACH.

55.  On 15 June 2004, the applicant's case was considered by an MEB.  The
MEB diagnosed the applicant as having right knee chondromalcia; left knee
patellofemoral pain syndrome; mild OSA; GERD; chronic fatigue syndrome
with fibromyalgia; and asthma.  He was referred to a PEB for these
ailments.  His ailments were ruled to have been incurred in the LOD,
incurred while entitled to base pay, not EPTS, and were not service
aggravated.

56.  The applicant was also diagnosed as having migrainous headaches;
an adjustment disorder; irritable bowel syndrome; chronic jaw pain; chronic
muscular back pain; allergic rhinitis/sinusitis; plantar fasciitis with pes
planus; and hyperlipidemia.  All were medically acceptable.  His MEB
indicated that he was a Gulf War Veteran and complete Phase I of CCEP.  The
applicant desired to continue on AD but continuance on AD was medically
contraindicated.  The findings and recommendations were approved and he was
referred to a PEB for further adjudication of those ailments determined to
be not acceptable.  The applicant disagreed with the MEB's findings and
recommendations.  The applicant's appeal was considered and the original
finding and recommendation were confirmed.  The applicant's case was
referred to the PEB with all records enclosed.

57.  On 23 June 2004, the applicant was issued a permanent profile of
313111 due to bilateral knee pain, sleep apnea, chronic fatigue syndrome,
fibromyalgia, acid reflux, and asthma.

58.  On 9 July 2004, the Commander, Headquarters, US Army Medical
Department Activity, Fort Campbell, Kentucky, prepared a memorandum to
the PEBLO, Subject:  Commander's Letter of Evaluation.  The Commander
stated that the applicant was not pending any adverse action, was not
currently flagged, and had an MOS of 15B20, which required that he
possess a maximum physical profile of 222222.  He possessed a physical
profile of 313111.  His profile prevented him from performing his primary
MOS (PMOS) of 15B20.  The commander indicated that the applicant did not
have a current APFT and his last APFT was conducted in January 1997.  The
commander concluded that the applicant was unable to perform his duties
to standard as a Soldier in a worldwide environment due to his various
medical conditions.  He recommended that the applicant be processed and
separated through the Army disability system.

59.  On 22 July 2004, the applicant inquired through email to counsel, at
PDA, WRAMC, for assistance regarding his MEB.  In his email to counsel, he
said, "I have been going through the MEB process since 1999 and for some
reason have not been able to get a fair evaluation through the MEB process.
 Last week a Soldier gave him an email that was between the 1SG, CDR, PEBLO
and my physician.  The email was attached.  The email shows that my
physician was conspiring to stop me from appealing my process as is the
right of every Soldier. He also seems overly concerned about how I will be
rated for my conditions."

60.  Counsel responded on the same day.  Counsel informed the applicant
that his case had not been referred to the PDA and that they had no
jurisdiction at that time.  Counsel informed him that questions regarding
his case should be addressed to the MTF Commander. 

61.  On 22 July 2004, a psychiatrist for Headquarters, US Army Medical
Department Activity, prepared a short memorandum for the President, PEB,
Fort Sam Houston, Texas, Subject:  Medical Addendum.  The psychiatrist
indicated that neuropsychological testing had been reviewed and that the
Soldier met the retention standard, psychiatrically.  The psychiatrist
diagnosed the applicant as having an adjustment disorder with mixed
disturbance of emotions and conduct, chronic.  He was medically acceptable.


62.  On 13 September 2004, the legal assistance attorney, Office of the
Staff Judge Advocate (SJA), Fort Campbell, Kentucky, prepared a memorandum,
Subject:  MEB of [the applicant].  Counsel stated that the applicant was a
client of his who visited with him to discuss several concerns that he had
with his recent MEB.  His chief concern was that his recent
neuropsychological evaluation from the Family Wellness Center in
Clarksville, Tennessee, was deliberately not considered by the evaluating
physician in rendering the decision in the MEB.  The applicant states that
the Chief, Adult Behavioral Health Science, never saw him as a patient
until 16 August 2004, several weeks after the PEB had convened and
adjudicated his case.

63.  The legal assistance attorney who advised him stated that according to
regulation, entries would be made in a record by the health-care provider
who observes, treats, or cares for the patient.  No health care-
practitioner is permitted to complete the documentation for a medical
record on a patient unfamiliar to him.  The attorney also stated, that in
addition, the applicant stated that the diagnostic information gleaned from
a sleep study by a physician was not contained in the narrative summary of
the MEB, dated 14 June 2004.  The summary referred to a sleep study that
was pending and recognized that it would help determined if the applicant
had a component of narcolepsy, but chose to go ahead with the MEB without
waiting for these important findings.

64.  On 17 September 2004, the Chief, Adult Behavioral Health Science,
prepared a short memorandum for record, Subject: Medical statement
regarding [the applicant].  The psychiatrist states that his initial
contact with the applicant was on 16 August 2004.

65.  On 22 September 2004, the applicant appeared before a formal PEB, with
counsel.  The PEB found the applicant unfit for duty and recommended that
he be permanently retired by reason of physical disability with a combined
rating of 30 percent.  The PEB indicated that the applicant's retirement
was not based on a disability resulting from injury or disease, was not
received in line of duty as a result of armed conflict, and the disability
did not result from a combat related injury. 

66.  On 24 September 2004, the IO, a colonel appointed by BACH, completed
his findings and recommendations of the investigation launched on
2 February 2004. The IO found that there were several processes being
conducted by BACH that were not optimal for the prompt and thorough
processing of Soldiers through the PDES.

67.  The IO's report of proceedings contained the findings as follows:

      a.  The purpose of the MEB process is to identify all the medical
issues the Soldier is experiencing (using diagnoses, not symptoms) and to
attempt to resolve the diagnoses that make the Soldier unfit for duty, if
they can be resolved in a timely manner.  If an optimal level of treatment
has been achieved and the issue cannot be resolved, the Soldier's MEB
packet is referred to the PEB for a fitness determination and a disability
rating, if determined unfit for duty.

      b.  The MEBs conducted on the applicant prior to the most recent
submitted by the physician on 15 June 2004, did not record all of the
applicant's
diagnoses in their narrative summaries.  The PEBLO, who uses the narrative
summary to complete the DA Form 3947, only included those diagnoses listed.
 Thus, the PEBLO could not be held solely accountable for the problems
reported by the applicant with the DA Forms 3947.

      c.  The PEBLO should have known about the requirement to have the
CCEP and Phase number documented on the DA Form 3947.  It was finally
documented on the DA Form 3947 on 15 June 2004.

      d.  The PEBLO/MEB office did not have any direct authority over
physicians in the organization and therefore require the support of the
DCCS and the Hospital Commander to adequately implement the MEB process.

      e.  BACH's MEB system is decentralized and conducted by physicians
that may or may not be familiar with the requirements of the MEB process.
There is no centralized training/certification process for providers to
complete prior to assigning boards to them.  There are also division
providers involved in the process.  These providers are rated by the
division surgeon, not the hospital commander or the DCCS.  This can make
the enforcement of standards more difficult.

      f.  The Chief of Patient Administration and the DCCS do not have a
good system for maintaining accountability of Soldiers in the MEB process.
MEB Soldier appointments may not be expedited (in accordance with the
regulation), boards may be sent forward without all the appropriate
information, and/or physicians may not complete the required documentation
properly in a timely manner.

      g.  The applicant is a complex case with multiple problems, which is
the exception rather than the rule in the MEB process.  The MEB for these
individuals must be managed by a physician well-versed in MEB regulations
and the Department of Veterans Affairs (DVA) disability.

      h.  The administrative requirements for processing MEBs are more
complex than normal exams.  Templates that account for both the clinical
and administrative aspects of MEBs must be developed and standardized
throughout the organization.

      i.  There is no evidence of disparate treatment outside of the MEB
system (reenlistment and promotions).

68.  In view of the findings, the IO recommended various methods to improve
these procedures.  The recommendations were as follows:

      a.  BACH should implement an MEB training/certification course for
all providers involved in the MEB process.  Once informed of the standards,
providers need to the held accountable to them by the DCCS.  The MEB
section needs to provide immediate feedback to the DCCS if the providers
are not meeting the standards.

      b.  Every MEB should begin by 1) conducting a thorough review of the
Soldier's medical record back to the initial enlistment exam and
documenting all diagnoses, 2) conduct a comprehensive examination of the
Soldier and verify diagnoses identified, and 3) develop a treatment plan
that identifies all the evaluations/treatments that need to be conducted
for the Soldier.  Once the treatment plan has been completed, complete the
narrative and initiate the actual MEB proceedings;

      c.  The Chief, Patient Administration Division and the DCCS should
determine management control metrics for Soldiers undergoing the MEB
process and monitor them on a monthly basis.

      d.  Recommend hiring a full time civilian physician and a full time
nurse care coordinator to help manage the MEB process.  The physician
should be trained as the organization's subject matter expert for
processing MEBs.  The nurse care coordinator should be responsible for
tracking Soldier compliance and status in the MEB process.

      e.  Conduct a legal review of the process and standards employed by
the organization.

      f.  BACH needs to address MEB requirements in the MOU/MOA with the
Division Surgeon, so that division providers can also be held accountable
to the same standards as the BACH providers.

      g.  Consider having the Outcomes Management Division conduct quality
reviews of the MEBs that have been completed.
      h.  Recommend the use of the physician checklist, MEB guide, and the
VA C&P examination worksheet.

      i.  Ensure the PEBLO is counseled on the proper procedures for
changing information on government documents.

69.  On 30 September 2004, the applicant nonconcurred with the PEB
recommendations.  He stated that in light of the improper procedures,
failure to follow regulations, and fraudulent diagnoses involved with the
MEB process the BACH could come to no other decision than the one
adjudicated   He could not concur with the final adjudication because of
the Chronic Adjustment Disorder diagnosis.  He requested that this be
changed to a separate diagnosis of depression and anxiety that were
medically accepted or removed altogether. He indicated that he was being
further evaluated by civilian medical care.

70.  On 1 October 2004, the President, PEB, Fort Sam Houston, prepared a
memorandum for the PEBLO, BACH, Fort Campbell, Subject:  Rebuttal of PEB
Findings.  In this memorandum, the President, PEB, stated that the PEB had
reviewed the applicant's rebuttal, dated 30 September 2004, to the formal
finding and after careful consideration, the PEB found that no change to
the original findings was warranted.  The applicant's rebuttal contained no
objective medical information which would warrant any change in his
disability rating.  His case was forwarded to the PDA for final processing
as established by Army Regulation 635-40. 

71.  On 4 October 2004, the Administrative Law Attorney, SJA, Fort
Campbell, prepared a memorandum for the Commander, BACH, Subject:
 Legal Review of Investigation Completed Pursuant to AR 15-6, dated
24 September 2005, Allegation of Disparate Treatment in MEB.  Counsel
indicated that the investigation completed by the IO was found to be
legally sufficient.  Counsel also stated that the investigation met the
legal requirements of AR 15-6.  The IO addressed the specific questions
put to him in the appointing memorandum.  Further, his recommendations
were consistent with the findings, and the findings were consistent
with the facts.  The IO found that MEBs prior to 15 June 2004 did not
record all of the applicant's diagnoses; however, the applicant’s was a
complex case because he had multiple medical problems.  The IO's
recommendation that BACH implement an MEB training/certification course
and hiring a civilian physician and nurse care coordinator to help
manage the MEB process was consistent with his findings.

72.  On 26 October 2004, the Chief, Operations Division, PDA, prepared a
memorandum thru BACH for the applicant, Subject:  Nonconcurrence/Rebuttal
to PEB Findings.  The PDA noted that the applicant disagreed with the
findings of his PEB and reviewed his entire case.  The PDA's conclusion
was that his case was properly adjudicated by the PEB which correctly
applied the rules that govern the PDES in making its determination.  The
findings and recommendations of the PEB were supported by substantial
evidence and were therefore affirmed.  The applicant was advised his case
had been forwarded to the Physical Disability Branch for final
disposition.  The PDA official informed the applicant that he may be
eligible for medical care through the DVA if they determine that his
illness or injury was service-connected. 

73.  There is no evidence in the available records, and the applicant has
provided no evidence, to show that he was ever considered or recommended
for promotion to the rank of SSG/E6 or attained standing list status.

74.  There also is no evidence to show that he was considered or selected
for promotion to the pay grade E-7 or E-8 by a DA Selection Board while
serving on AD.

75.  On 30 November 2004, the applicant was permanently retired by reason
of physical disability, under the provisions of Army Regulation 635-40,
paragraph  4-24B(1), with a combined rating of 30 percent.  He was placed
on the Retired List, effective 1 December 2004, in the rank of SGT.  He had
completed 20 years and 17 days of active Federal service.

76.  The applicant provides copies of his NCOERs which show that he was not
performing duties in his PMOS.  He also provides a copy of his retirement
award which shows that he was awarded the Army Commendation Medal, a Letter
of Recommendation, and several other letters pertaining to his diagnoses.

77.  The applicant provides a copy of his VA Rating Decision, dated
18 March 2005.  It shows that he was granted:  a 50 percent service-
connected disability for OSA (claimed as genioplasty, maxillary hypoplasis
with advancement surgery, lack of stage III and IV sleep); 30 percent for
asthma; 10 percent for hiatal hernia with GERD and esophagitis; 10 percent
for chondromalacia, right knee, post meniscal and anterior cruciate
debridement and repair; 0 percent for allergic rhinitis/sinusitis; and
0 percent for plantar wart, right foot.  He was awarded a combined rating
of 70 percent for his service-connected disabilities.

78.  Army Regulation 600-8-19 governs the enlisted promotions and
reductions function of the military personnel system.  Chapter 3 governs
the semi-centralized promotions for sergeant (SGT) and staff sergeant
(SSG).  Table 3-4, of the
regulation states, in pertinent part, that a Soldier must be promotable in
his career progression MOS (CPMOS).  He must also be fully qualified in
his PMOS, to include meeting school requirements, and be considered
physically qualified to compete for promotion.

79.  Army Regulation 40-501 provides policy on medical fitness standards
for induction, enlistment, appointment, retention, and related policies
and procedures. Chapter 3 lists the various medical conditions and
physical defects that may render a Soldier unfit for further military
service.  Paragraph 3-4 pertains to general policy.  It states that
possession of one or more of the conditions listed in this chapter does
not mean automatic retirement or separation from the service.  It also
states that physicians are responsible for referring Soldiers with
conditions listed in this chapter to an MEB.  It is crucial that MEBs are
complete and reflect all of the Soldier's medical problems and all
physical limitations the Soldier has.  Determination of fitness or
unfitness will be made by a PEB.  The PEB, under the PDA, will consider
the results of the MEB, as well as the requirements of the Soldier's MOS
in determining fitness.

80.  Paragraph 3-14, of Army Regulation 40-501, covers miscellaneous
conditions of the extremities.  Subparagraph 3-14e states that conditions
of chondromalacia or osteochondritis dissecans, severe, manifested by joint
effusion, more than moderate interference with function, or with severe
residuals from surgery, are cause for referral to an MEB.  Paragraph 3-41
covers general and miscellaneous conditions and defects.  Subparagraph 3-
41c states that a condition of sleep apnea is a cause for referral to an
MEB.

81.  Army Regulation 635-40 establishes the Army physical disability
evaluation system and sets forth policies, responsibilities, and procedures
that apply in determining whether a Soldier is unfit because of physical
disability to reasonably perform the duties of his office, grade, rank, or
rating.  It provides for medical evaluation boards, which are convened to
document a Soldier's medical status and duty limitations insofar as duty is
affected by the Soldier's status.  A decision is made as to the Soldier's
medical qualifications for retention based on the criteria in AR 40-501,
chapter 3.  If the medical evaluation board determines the Soldier does not
meet retention standards, the board will recommend referral of the Soldier
to a physical evaluation board.


82.  Physical evaluation boards are established to evaluate all cases of
physical disability equitability for the Soldier and the Army.  It is a
fact finding board to investigate the nature, cause, degree of severity,
and probable permanency of the disability of Soldiers who are referred to
the board; to evaluate the physical condition of the Soldier against the
physical requirements of the Soldier's particular office, grade, rank or
rating; to provide a full and fair hearing for the Soldier; and to make
findings and recommendation to establish eligibility of a Soldier to be
separated or retired because of physical disability.

83.  Paragraph 4-24 of Army Regulation 635-40 pertains to the disposition
of Soldiers by the Army Human Resources Command (AHRC) upon the final
decision of the Physical Disability Agency.  It states that AHRC will
dispose of the case by publishing orders or issuing proper instructions
to subordinate headquarters, or return any disability evaluation case to
the United States Army Physical Disability Agency for clarification or
reconsiderations when newly discovered evidence becomes available and is
not reflected in the findings and recommendations.  Subparagraph 4-24b(1)
applies to permanent retirement for physical disability.

84.  Army Regulation 40-400 covers patient administration.  It prescribes
policies and mandated tasks governing the management and administration
of patients.  It includes DOD and statutory policies regarding medical
care entitlements and managed care practices.  It applies to Active Army
and Reserve Components.  It also applies to medical department
activities, medical centers, dental activities, and organizations for
which the AMEDD is the executive agent.  Chapter 7 pertains to military
personnel physical disability processing.  Paragraph 7-3, states, in
pertinent part, that boards (MEB/PEB) are to use the VA Physicians' Guide
for Disability Evaluation Examinations to describe the nature and degree
of severity of the member's condition.  Paragraph 7-9 requires a listing
of all diagnoses in descending order of significance.

85.  Title 38, United States Code, section 310 and 331, permits the VA to
award compensation for disabilities which were incurred in or aggravated by
active service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant has not submitted any evidence to show that he was not
properly rated for his disabilities.


2.  The applicant successfully used the PDES appellate process to its
fullest extent prior to separation.  As a result, all of his medical
conditions were considered by a formal PEB and those which were determined
physically unfitting were rated.  There is no evidence of error or
injustice in the physical evaluation process but, an investigation into the
processing of MEBs and referral of the results to a PEB revealed a lack of
consistency on the part of those responsible for processing them.  Most of
these inconsistencies could be traced back to a lack of experience by
doctors and a lack of a centralized monitoring entity.

3.  There is no evidence to show that agencies processing his claim acted
unlawfully resulting in the applicant being retained on AD for 6 years
without the ability to be promoted with his peers and subordinates.  On the
contrary, the applicant was retained in service beyond his retention
control point to receive necessary medical treatment, follow-up pertinent
to this treatment, and he benefited in that he qualified for retirement
with over 20 years service.  Had the applicant not been retained through
the efforts of personnel operating within the confines of the medical
community, he would not have been able to satisfactorily complete 20 years
service and qualify for retirement with this length of service.

4.  After a review of evidence, there is none to show that the agencies
processing his claim failed to properly adjudicate his case resulting in a
lower disability percentage rate.  The applicant was rated fairly and he
has applied to the VA to determine if he is entitled to additional
compensation for his service-connected disabilities.

5.  The 15-6 investigation primarily identified deficiencies within the MEB
processing system in the hospital, and offered methods of correcting those
deficiencies.  As such, the fact that the results of the investigation were
not available to the formal PEB has no bearing on the applicant's case.

6.  Since the applicant was determined medically disqualified for retention
in 1999, he was not eligible for promotion.  An enlisted Soldier must be
medically qualified for retention to be considered for promotion.

7.  The applicant provided a copy of his VA Rating Decision, dated 18 March
2005, which shows that he was awarded a combined rating of 70 percent for
his service-connected disabilities.

8.  In accordance with governing laws, the VA is the Department responsible
for compensating veterans when service-related conditions cause social or
industrial impairment after a Soldier's discharge.
9.  Any rating action by the VA does not necessarily demonstrate error or
injustice on the part of the Army.  The VA, operating under its own
policies and regulation, assigns disability ratings as it sees fit.

10.  The applicant should reapply to VA for an increase in his current
disability rating of 70 percent.

11.  The applicant provided copies of NCOERS, which show that the
applicant was not performing duties in his PMOS, his retirement award
which shows that he was awarded the Army Commendation Medal, his letters
of recommendation, and the large number of other documents provided in
support of his request for promotion to MSG/E-8, with back pay and
allowances, due to disparate treatment in the PDES that kept him on AD
from August 1999 to November 2004.  However, these supporting documents
are not sufficient by themselves as a basis to grant the relief requested.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

_JCR ___  __DWT__  __WFC__  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.


                                  _____William F. Crain______
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050012799                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060921                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |20041130                                |
|DISCHARGE AUTHORITY     |AR 635-40, PARA 4-24B(1)                |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |131                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |

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