RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        26 September 2006
      DOCKET NUMBER:  AR20050017688


      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:

|     |Ms. Marla J. Troup                |     |Chairperson          |
|     |Mr. Chester A. Damian             |     |Member               |
|     |Mr. Edward E. Montgomery          |     |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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the applicant’s placement on the
Temporary Disability Retired List (TDRL) and his subsequent removal from
the TDRL be voided; that he be granted constructive active duty credit for
the period                6 November 2002 to 17 January 2005; that he be
granted an active duty retirement effective 1 February 2005 in the rank of
Sergeant First Class (SFC), E-7; and that he be granted all due back active
duty pay and allowances and back retired pay as a result of this
correction.  In the alternative, he requests that the applicant’s records
be corrected to show he was removed from the TDRL and permanently medically
retired effective 23 November 2004 with a 40 percent disability rating (10
percent for chronic back pain and 30 percent for prostrating migraines).

2.  Counsel states that the applicant was denied administrative due process
when he was not informed during his Medical Evaluation Board (MEB) and
informal Physical Evaluation Board (PEB) processing that he could seek
continuation on active duty (COAD) given his lengthy active duty service.
Alternatively, the formal PEB on 23 September 2004 misapplied the rules
governing disability ratings when it reduced the applicant’s disability
rating for migraines from 30 percent to 10 percent.  He should have been
awarded          30 percent for migraines and 10 percent for chronic back
pain.

3.  Counsel states that at no time did the PEBLO (PEB Liaison Officer)
advise the applicant that COAD was an option.  The informal PEB practically
begged someone to suggest COAD.  The President of the PEB even sent a
memorandum to the medical treatment facility asking essentially why the
applicant was not fit for duty.  Ultimately, the PEB determined the
applicant to be unfit for duty and placed him on the TDRL.

4.  Counsel states that a TDRL informal MEB Narrative Summary concluded
that the applicant had no change in either his chronic low back pain or
migraines; nonetheless, an informal TDRL PEB eliminated entirely the
disability rating for migraines.  The applicant nonconcurred, and a formal
PEB raised the disability rating for migraines from zero percent to 10
percent, but that still resulted in the applicant’s removal from the TDRL
and discharge with severance pay.  The formal PEB’s principal reason for
reducing the applicant’s rating for migraines was that he was using Imitrex
“sporadic[ly].”  In fact, Imitrex had been stopped long before the TDRL PEB
and a substitute was prescribed.  Nothing about the severity or frequency
of the migraines had changed.  The formal PEB simply misinterpreted the
facts.  A disability rating of 30 percent was then and is now proper.

5.  Counsel provides Tabs A through U:

      A.  a DA Form 3947 (Medical Evaluation Board Proceedings) dated
    4 February 2002;

      B.  the original MEB Narrative Summary with two addendums;

      C.  a DA Form 3349 (Physical Profile) dated 4 October 2001;

      D.  the commander’s evaluation, dated 22 October 2001, with related
statement;

      E.  five line of duty determination memorandums;

      F.  three noncommissioned officer evaluation reports (NCOERs), for
the periods ending August 2001 (unsigned), September 2000, and December
1999;

      G.  the applicant’s Enlisted Record Brief and DA Form 2-1 (Personnel
Qualification Record);

      H.  the PEB’s request for further evidence of unfitness for duty;

      I.  the commander’s further evaluation;

      J.  an informal PEB dated 12 September 2002;

      K.  TDRL orders dated 8 October 2002;

      L.  TDRL physical examination letter orders dated 24 November 2003;

      M.  a TDRL MEB Narrative Summary;

      N.  an informal PEB dated 22 July 2004;

      O.  a U. S. Army Physical Evaluation Board letter dated 22 July 2004;

      P.  a U. S. Army Physical Evaluation Board letter dated 18 August
2004;

      Q.  a TDRL formal PEB dated 23 September 2004;
      R.  removal from TDRL orders;

      S.  a Defense Finance and Accounting Service, Retired and Annuity
Pay, letter (date partially illegible);

      T.  a 15 September 2004 letter from Barquist Army Health Clinic, Fort
Detrick, MD and a Medical Profile printout; and

      U.  an undated statement from the applicant stating, “I was never
informed about or given the option to continue on active duty.  At no time
was the Disability Evaluation System Process explained by any PEBLO.  The
guidance and advice was limited to a phone call by Mr R___ (PEBLO) saying I
was awarded 30% disability and could retire with full benefits.  More time
and effort was put into tracking down lost paper work, redoing forms and
repeating physicals.”

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 16 January 1985.  He was
promoted to SFC, E-7 on 1 October 1999 in military occupational specialty
(MOS) 31P (Microwave Systems Operator-Maintainer).

2.  The applicant’s NCOER for the period ending December 1999 shows that
he performed duties as the noncommissioned officer in charge (NCOIC) of
Terrestrial Transmission Media, duty MOS 31P44; that he passed his Army
Physical Fitness Test (APFT) in September 1999; that he was rated
“excellence” in two of the five categories of NCO responsibilities and
“success” in the other three categories; and that his overall potential for
promotion and or service in positions of greater responsibility was rated
as “among the best.”  Senior rater comments included, “has the potential to
perform in positions of increased responsibility.”

3.  The applicant’s NCOER for the period ending September 2000 shows that
he performed duties as the NCOIC of Terrestrial Transmission Media, duty
MOS 31P44; that he passed his APFT in June 2000; that he was rated
“excellence” in three of the five categories of NCO responsibilities and
“success” in the other two categories; and that his overall potential for
promotion and or service in positions of greater responsibility was rated
as “among the best.”  Senior rater comments included, “Unlimited potential;
his advice often sought by both officers and enlisted members of this
command.”

4.  The applicant was assigned to the 1111th Signal Battalion, Fort
Detrick, MD on or about 26 September 2000.

5.  The applicant’s NCOER for the period ending September 2001 was signed
by the applicant on 23 October 2001.  It shows that he performed duties as
the Network System NCOIC, duty MOS 31P44; that he passed his APFT in
September 2001; that he was rated “excellence” in three of the five
categories of NCO responsibilities and “success” in the other two
categories; and that his overall potential for promotion and or service in
positions of greater responsibility was rated as “among the best.”  Rater
comments included, “pitched for the Battalion and Commander Cup softball
team” and “Placed first in two separate events at Battalion Organization
Day.”  Senior rater comments included, “assign to positions of maximum
responsibility, always exceeds highest expectations for performance in any
task.”

6.  A DA Form 3349 dated 4 October 2001 shows the applicant was given a
permanent L3 (lower extremities) profile (113111) for low back pain,
herniated nucleus pulposus with radiculopathy; right hip degenerative joint
disease (DJD), post traumatic cervical DJD, and T-spine DJD.  Assignment
limitations included no push-ups, no situps, and remaining physical
training at own pace and tolerance.

7.  In a 22 October 2001 memorandum to the U. S. Army Physical Evaluation
Board, the applicant’s commander noted that the applicant had performed
excellently as the NCOIC of 101 Soldiers and civilians.  He was “certainly
top among his six E-7 31P peers.”  His performance was categorized as
exemplary.  The commander stated, however, that the applicant’s profile
disqualified him from performing in his MOS.  He could adequately perform
most duties normally expected of an E-7 31P; however, he could not perform
them in all instances.  His ability to be a leader, following the “Whole
Person” concept, in his current condition was hindered.

8.  On 4 February 2002, an MEB referred the applicant to a PEB for
         14 diagnoses:  (1) low back pain secondary to herniated nucleus
pulposus L5-S1 with left S1 radiculopathy; (2) atypical face pain/facial
nerve entrapment; (3) migraine headaches; (4) rebound headaches; (5) right
hip DJD; (6) cervical spine DJD; (7) thoracic spine DJD; (8) tinnitus of
left ear; (9) left shoulder impingement syndrome; (10) left ankle post-
traumatic DJD; (11) right ankle mild DJD; (12) left elbow mild to moderate
DJD; (13) acne keloidalis nuchae; and (14) Lyme disease, currently
asymptomatic (medically acceptable).

9.  An addendum to the Narrative Summary from the Neurology Clinic noted
that, in Neurology’s original addendum, it was stated that the applicant
got 2 to    3 headaches weekly which were frontal, throbbing in nature, and
associated with nausea, emesis, photophobia, and phonophobia.  The original
addendum also stated that the applicant typically must lie down when he got
one of his headaches.  The physician stated that what he meant by that
statement was that the applicant’s headaches were actually prostrating,
debilitating, and incapacitating.  The applicant often had to seek medical
attention because of the headaches, which typically occurred all day long.

10.  The addendum noted that the applicant was referred for evaluation of
headaches since he was hit by a crane in 1995 which caused him to be
knocked off an 18-wheeler tractor.  Since that time, he had left facial
pain and some numbness over the preoral region of his face.  The pain was
described as sharp, shooting, and stabbing in nature as well as retro- and
preauricular in location which could last a couple of minutes at a time and
happened 5 to 15 times per day.

11.  Item 15 of the DA Form 3947 (Medical Evaluation Board Proceedings)
indicated that the applicant did not desire to continue on active duty.  He
signed the DA Form 3947 on 12 February 2002.

12.  On 19 February 2002, the PEB returned the applicant’s case for
additional actions and/or information.  The PEB requested a rationale for
the serial profile given to the applicant.  The PEB noted the applicant
passed his APFT every year of his career and participated in numerous
athletic events as recently as September 2001 (referring to his latest
NCOER).  The PEB requested information on why the applicant could not take
the APFT or if there was no aerobic APFT event he could perform.  The PEB
requested the applicant’s commander explain what MOS tasks, in his current
unit, he could not perform.  The PEB noted that the serial profiles on the
DA Form 3349 and on several line of duty findings reflected that only the
conditions affecting the lower extremities could be cause for finding the
applicant unfit.  All other conditions (headaches, shoulder impingement,
and Lyme disease), had not resulted in a lower serial profile rating.

13.  By a memorandum dated 5 April 2002, the applicant’s commander
responded to the PEB by stating that the applicant could adequately perform
most duties normally expected of an SFC 31P; however, he could not
[perform] in all instances.  He needed to take significant medicine for
pain control.  That medicine could hamper his ability to work under the
Personnel Reliability Program (PRP) and make his reliability unpredictable.
 The applicant adapted to his pain and knew his limits, which allowed him
to perform at a high level even to the point of playing some sports at a
moderate level.  However, he was obviously riding a fine line between
putting the Army first and working just below his pain threshold and
risking further injury.

14.  By memorandum dated 11 April 2002, Barquist Army Health Clinic
responded to the PEB.  The memorandum noted that, per the applicant’s
commander, the applicant had not taken an APFT in more than two years.  His
participation in various intramural athletic events was at his own
tolerance, and he was unable to complete APFT events.  The applicant was
unable to continue in his MOS.

15.  The applicant’s commander expanded his 5 April 2002 statement with a
memorandum dated 26 April 2002.  The commander stated that the PRP required
exposure to highly classified National security items and information,
which could lead to high levels of stress.  The applicant’s job often
required heavy lifting and climbing towers as well as working in a very
noisy area, which sometimes triggered headaches.  The applicant pitched
softball (but apparently he had a designated hitter).  He was unable to
bend over for more than a few moments.  His constant referrals and medical
appointments kept him away from the office almost one week out of every
month.

16.  A DA Form 3349 dated 7 May 2002 shows the applicant was given a
permanent P3, U3, and L3 (overall physical, upper extremities, and lower
extremities) profile (333111) for low back pain, herniated nucleus pulposus
with radiculopathy; right hip DJD, post traumatic cervical DJD, T-spine
DJD, facial pain, and migraine headaches.  Assignment limitations did not
change from the previous profile.

17.  By memorandum dated 9 July 2002, the applicant’s commander responded
again to the PEB by stating that the applicant was unable to participate in
required training such as the APFT, NBC (nuclear, biological, and chemical)
training, and was non-deployable due to his condition since being assigned
to the unit.  The commander stated the applicant’s duties required him to
lift communications equipment, weighing from 25 to 125 pounds, from storage
racks, which would break his profile.  Other duties included tracing the
route of fiber optic wire running in overhead ducts and under floor tiles,
which would require him to operate in confined spaces and have extreme
flexibility, which he did not have due to his injuries.  The facility that
he worked in also had two locations (first and third floors), which
required him to climb three flights of stairs (the elevator being
frequently out of service), which would hinder him due to his physical
condition, and also would prevent him from carrying any equipment up or
down said stairs.

18.  By memorandum dated 4 September 2002, Barquist Army Health Clinic
again responded to the PEB by stating that the applicant’s diagnoses,
treatments, medications, symptoms, limitations, and prognoses were reviewed
and confirmed by his multiple medical specialists and had NOT (emphasis in
the original) changed since the original MEB narrative submitted by Doctor
H___ (orthopedic surgeon).

19.  On 12 September 2002, an informal PEB found the applicant to be unfit
due to migraine headaches which were prostrating and debilitating with
atypical face pain/facial nerve entrapment (30 percent); and to low back
pain with radiographic evidence of herniated nucleus pulposus (L5 – S1 with
displacement of the S1 nerve root), with no focal neurological deficit, and
with pain on bending              (10 percent) for a combined rating of 40
percent.  All other diagnoses were found to be not unfitting and not rated.
 The PEB recommended he be placed on the TDRL.  On 17 September 2002, the
applicant concurred with the findings of the informal PEB and waived a
formal hearing of his case.

20.  On 17 September 2002, the applicant signed a DA Form 5893-R (PEBLO
Counseling Checklist/Statement) acknowledged that his PEBLO counseled him
on the criteria and procedures for requesting continuance on active duty.

21.  On 6 November 2002, the applicant was released from active duty after
completing 17 years, 9 months, and 21 days of creditable active service.
He was placed on the TDRL the following day.

22.  A TDRL (neurology) evaluation evaluated the applicant for migraine
headaches.  The evaluation noted the applicant had paroxysms of facial pain
lasting several minutes and happening 5 to 15 times a day.  He was on
Tegretol and Neurontin in the past, which were discontinued either due to
side effects or lack of efficacy.  He was seen in the pain clinic without
success.  An MRI (magnetic resonance imaging) was normal.  He was placed on
Depakote, which did not help, and was switched back to Neurontin.  He was
also switched from Imitrex to Amerge with a decrease in the chest
tightness, but he was switched back for unclear reasons.  Vioxx was given
to prevent analgesic rebound headaches.  The evaluation noted that the
applicant had not had significant improvement of his headaches since his
initial disposition.  His headaches were significant and prostrating, and
he was currently disabled from them.

23.  A TDRL (orthopedic) evaluation evaluated the applicant and found that
he was still not capable of performing his previous MOS duties.  He
presented with no improvement in any of his orthopedic problems and a
worsening of his low back pain and hip pain.

24.  On 22 July 2004, a TDRL informal PEB found the applicant to be unfit
due to chronic back pain with a history of a herniated L5/S1 disc, a
physical examination noting tenderness at the L4 level with essentially
full ranges of motion               (10 percent); and a history of migraine
headaches that he reported occurred about twice a month; he worked from
home recruiting for a consulting firm; no evidence that the headaches
prevented him from working; a physical examination within normal limits;
and very sporadic use of Imitrex (zero percent).

25.  The informal PEB recommended the applicant be removed from the TDRL
and separated with severance pay with a 10 percent disability rating.

26.  On 9 August 2004, the applicant did not concur with the findings of
the informal PEB and demanded a formal hearing.

27.  The applicant provided a 15 September 2004 letter from Barquist Army
Health Clinic.  The physician from that Clinic noted that the applicant had
multiple trial medications per multiple providers issued in an attempt to
manage his chronic daily symptoms of pain, disequilibrium, tinnitus,
neuropathic impingement and/or permanent compromise, and headache.  He was
as compliant with each medication trial as possible given his functional
occupational requirements for intense focus, alertness, and attention.
There were also several episodes of approved medication discontinuances due
to medication interactions resulting in extreme fatigue, disequilibrium and
gastrointestinal distress.  The physician noted that the applicant
established a personally acceptable level of daily pain and symptoms with
minimal medications so that he could perform at a level required for his
employment.  His present level of medications use as well as nonuse of
previously issued prescriptions should IN NO MANNER (emphasis in the
original) not be misunderstood as intentional medical noncompliance.

28.  On 23 September 2004, a formal PEB found the applicant to be unfit due
to chronic back pain with a history of a herniated L5/S1 disc; physical
examination noting tenderness at the L4 level; with essentially full ranges
of motion             (10 percent); and a history of migraine headaches
that he reported occurred about twice a month; he worked from home
recruiting for a consulting firm; no evidence that the headaches prevented
him from working; a physical examination within normal limits; and very
sporadic use of Imitrex (10 percent).

29.  The formal PEB recommended the applicant be removed from the TDRL and
separated with severance pay with a 20 percent disability rating.

30.  On 2 November 2004, the applicant did not concur with the findings of
the formal PEB.  He indicated, “Rebuttal Info Mr W___ already has.”

31.  Effective 23 November 2004, the applicant was removed from the TDRL
and discharged with a 20 percent disability rating.

32.  In the processing of this case, an advisory opinion was obtained from
the   U. S. Army Physical Disability Agency (USAPDA).  That agency noted
that item 15 of the DA Form 3947 dated 4 February 2002 indicated the
applicant expressed a desire not “to continue on active duty under AR 635-
40.”  That Agency also noted that, on 17 September 2002, the applicant
signed a DA Form 5893-R, which indicated in item 1 that the PEBLO had
“[I]informed the Soldier of criteria and procedures for requesting
continuation on active duty or the active reserve.”  That Agency noted
that, in his application to the Board, the applicant stated that in his
opinion the “IPEB practically begged someone to suggest COAD.”  That Agency
noted that it appeared that the PEB did not believe he was really unfit and
made several requests for the command to provide specifics as to what
exactly the applicant could not do regarding his performance of duty.  The
Agency noted that, since that could also be interpreted by some to mean
that had the applicant ever applied for COAD, it might have been approved.


33.  The advisory opinion also noted that, at the time the applicant was
placed on the TDRL, the USAPDA did not review his case.  Had the USAPDA
done so, it would not have approved the 30 percent rating as the
applicant’s headaches were not properly established as prostrating in
accordance with Department of Defense Instruction (DODI) 1332.39, “the
Service member must stop what he or she is doing and seek medical
attention.”  The applicant’s headaches started in 1995.  His main complaint
at the MEB concerned his assorted pains and a 1999 accident that aggravated
his spine and neck.  His headaches were not listed as a major area of
complaint that significantly affected his duties in an adverse way.  His
October 2001 profile did not mention headaches as limiting his duties and
the command never indicated that the applicant’s headaches were causing any
significant disruption of his duties (until the commander’s 26 April 2002
memorandum).

34.  The advisory opinion went on to note that the 15 October 2001
Neurology Addendum stated the applicant informed the physician that he got
two or three headaches weekly and that he had to lie down.  The headaches
had been going on for years and apparently did not interfere with his
duties since 1995 as his NCOERs were all excellent and he was promoted
during that time.  The applicant subsequently returned to the Neurology
Clinic on 2 November 2001 and specifically asked the physician to change
comments in his first report to indicate that, as far as the applicant was
concerned, the headaches were “actually prostrating, they are debilitating,
and they are incapacitating.”  The new addendum did not state that the
headaches were so bad that the applicant had to stop what he was doing and
seek medical care/treatment from any health care provider.  Therefore, the
Agency opined that his headaches were clearly not prostrating in accordance
with the required standard and the applicant should not have been rated at
30 percent.
35.  The advisory opinion noted that the TDRL re-evaluation indicated that
the applicant’s headaches would dissipate with Imitrex, a dark room, and
immobility over several hours.  The headaches were still claimed to be
“disabling” but they appeared no worse than since 1995 and he was able to
function in the past.  There was still no claim by the applicant that his
headaches required him to seek immediate medical care.  The formal TDRL PEB
increased his rating for his headaches to 10 percent even though it was not
supported by any new evidence or rationale by the PEB.

36.  A copy of the advisory opinion was provided to the applicant for
comment or rebuttal.  Counsel for the applicant responded by stating that
there exists a marked difference between a checked block and what a service
member actually was told.  Counsel for the applicant stated that the
advisory opinion wants one to believe that those check marks should prevail
over the applicant’s statement and over the common sense notion that the
applicant would not knowingly risk retirement.  Counsel asks the Board
members if they really believe that the applicant would knowingly turn down
an opportunity to get to full retirement by asserting COAD.  Counsel stated
he has never seen a high-year[s of service] PEB case where COAD was not
requested.  Counsel states that a competent PEBLO would have assured that
COAD was requested as nothing would be lost by requesting it.  Counsel
states the advisory opinion focuses on the applicant’s headaches, and his
back is hardly mentioned.  Counsel and the applicant stand on their prior
assertions.

37.  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.  The unfitness is of such a degree that a Soldier is
unable to perform the duties of his office, grade, rank or rating in such a
way as to reasonably fulfill the purpose of his employment on active duty.
The regulation states that, although the ability of a Soldier to reasonably
perform his or her duties in all geographic locations under all conditions
is a key to maintaining an effective and fit force, this criterion (world-
wide deployability) will not serve as the sole basis for a finding of
unfitness.

38.  Army Regulation 635-40 states that to be considered for continuance on
active duty, a Soldier must be (a) found unfit by a PEB because of a
disability that was in the line of duty; (b) capable of maintaining one's
self in a normal military environment without adversely affecting one's
health and the health of others and without undue loss of time from duty
for medical treatment; (c) physically capable of performing useful duty in
an MOS for which he or she is currently qualified or potentially trainable;
and (d) eligible due to (1) having        15 years but less than 20 years
of total service; or (2) qualified in a critical skill or shortage MOS; or
(3) disability is the result of combat.
39.  Army Regulation 635-40 states a Soldier on active duty being evaluated
for possible unfitness because of physical disability may submit an
application through the medical treatment facility for COAD.  The applicant
must be submitted when the Soldier is being evaluated by the MEB or during
counseling by the PEBLO after the informal PEB.  The PEBLO uses the DA Form
5893-R to document counseling.  The PEBLO will mark each item completed.
The member signs in Section IV (Acknowledgment), subsection IVA,
acknowledging that he or she was counseled on the above marked items as
they pertained to his or her disability evaluation.

40.  The Veterans Administration Affairs Schedule for Rating Disabilities
(VASRD) is the standard under which percentage rating decisions are to be
made for disabled military personnel.  The VASRD is primarily used as a
guide for evaluating disabilities resulting from all types of diseases and
injuries encountered as a result of, or incident to, military service.
Once a Soldier is determined to be physically unfit for further military
service, percentage ratings are applied to the unfitting conditions from
the VASRD.  These percentages are applied based on the severity of the
condition.

41.  VASRD code 8100, migraine, awards a 30 percent disability rating for
migraine with characteristic prostrating attacks occurring on an average of
once a month over the last several months.

42.  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.

43.  DODI 1332.39 states, for VASRD code 8100, migraine, that "prostrating"
means the Service member must stop what he or she is doing and seek medical
attention.  The number of prostrating attacks per time period (day, week,
month) should be recorded by a neurologist for diagnostic confirmation.
Estimation of the social and industrial impairment due to migraine attacks
should be made.

44.  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.

DISCUSSION AND CONCLUSIONS:

1.  Counsel contended that the applicant was not informed during his MEB
and informal PEB processing that he could seek COAD.  Although the
applicant provided a current statement indicating he “was never informed
about or given the option to continue on active duty,” the preponderance of
the evidence shows he was given the option to request COAD.

2.  Despite counsel for the applicant stating that at no time did the PEBLO
advise the applicant that COAD was an option; and that the informal PEB
practically begged someone to suggest COAD; and, in his rebuttal to the
advisory opinion, that there exists a marked difference between a checked
block and what a service member actually was told, it is reasonable to
believe that ”those check marks should prevail over the applicant’s
statement and over the common sense notion that the applicant would not
knowingly risk retirement.”

3.  The two documents the applicant signed, the DA Form 5893-R and
especially the DA Form 3947, could not have more expressly indicated to the
applicant, a noncommissioned officer, that he had the option to request
continuation on active duty if he so desired.  He need not have signed
either of those two documents, especially the DA Form 3947, if he did not
understand what that statement meant or if it did not express his actual
desire regarding requesting COAD.  Counsel may not have ever seen a high-
year[s of service] PEB case where COAD was not requested; nevertheless,
that does not mean that the applicant did not know he had that option.

4.  Counsel contended that the TDRL informal MEB Narrative Summary
concluded that the applicant had no change in either his chronic low back
pain or migraines; nonetheless, an informal PEB eliminated entirely the
disability rating for migraines and a formal PEB only raised the disability
rating for migraines from zero percent to 10 percent.

5.  It appears the TDRL informal MEB Narrative Summary was correct in
concluding that the applicant had no change in his conditions.

6.  The Neurology addendum to the original MEB Narrative Summary noted that
the applicant was referred for evaluation of headaches since he was hit by
a crane in 1995.  Since that time (i.e., 1995), he had left facial pain and
some numbness in his face, the pain was described as sharp, shooting, and
stabbing in nature which could last a couple of minutes at a time and
happened 5 to 15 times per day.

7.  Since that accident in 1995, the applicant received at least three
outstanding NCOERs, in which the applicant performed duties in his primary
MOS of 31P, and in which his senior raters made comments such as “assign to
positions of maximum responsibility, always exceeds highest expectations
for performance in any task,” indicating that the applicant’s headaches
and/or other medical conditions in no way interfered with the performance
of his duties.  The applicant was promoted to SFC in 1999, again indicating
that the performance of his duties was so negligibly impacted by his
medical conditions, as indicated by his NCOERs, that a promotion board
believed he was qualified to perform duties of greater responsibility in
that MOS.

8.  Despite the comments of the applicant’s commander (that the applicant
was unable to participate in required training, could not lift
communications equipment because to do so would break his profile, or could
not perform other duties due to his injuries), there is no evidence to show
how the applicant’s condition changed from September 2001, when he received
his last outstanding NCOER, and          4 October 2001, when he was given
a profile (a profile which did not even address his headaches).  The
evidence of record showed that the applicant could perform his duties, and,
contrary to the commander’s statement, world-wide non-deployability will
not serve as the sole basis for a finding of unfitness.

9.  In addition, the 15 September 2004 letter from Barquist Army Health
Clinic noted that the applicant was “as compliant with each medication
trial as possible given his functional occupational requirements for
intense focus, alertness, and attention.”  This implies that the
applicant’s headaches were not so debilitating that he required all the
medication prescribed for him in order to function.  That statement also
appeared to conform to his commander’s 5 April 2002 statement that the
applicant was able to adapt to his pain, which allowed him to perform at a
high level.  It does not appear that the applicant met the criteria that
his headaches were so prostrating as to require him to stop what he was
doing and seek medical attention when they occurred, a condition required
under the guidance of DODI 1332.39.

10.  It is acknowledged that the advisory opinion focused on the
applicant’s headaches, and his back was hardly mentioned.  However, in all
the applicant’s dealings with the original MEB/PEB and the TDRL PEBs, there
is no evidence to show that he ever questioned the 10 percent disability
rating he was given for his back condition.

11.  It appears that the original PEB placed the applicant on the TDRL in
error.  Such an error did not require the TDRL PEB to compound that error
by also giving the applicant an inflated disability rating.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__mjt___  __cad___  __eem___  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.




                                  __Marla J. Troup______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050017688                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060926                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |108.02                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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