RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        13 February 2007
      DOCKET NUMBER:  AR20060008394


      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. Deyon D. Battle               |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Hubert Fry                    |     |Chairperson          |
|     |Mr. William Crain                 |     |Member               |
|     |Mr. Dale DeBruler                 |     |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 the form of a letter from his Representative
in Congress, reconsideration of his previous request that his records be
corrected to show that he was retired by reason of physical disability in
1998, rather than being placed on the Temporary Disability Retired List
(TDRL).  He further requests that his records be corrected to show that his
reason for discharge was due to chronic physical disability.

2.  The applicant defers to his Representative in Congress who states that
the applicant, while in the Army, was exposed to burning oil wells,
depleted uranium, vaccination against botulinum and anthrax in addition to
consuming pyrodostigmine bromide and anti-nerve agent pills.  She states
that there is also evidence the applicant's unit may have been exposed to
the chemical warfare agents sarin and cyclosarin.  She states that while
health factors between exposed and unexposed Soldiers appear to be fairly
equitable, this differs with respect to the incident rate of brain cancer
which appears twice the norm for the exposed Soldier and cannot be
adequately explained (Source: Department of Veterans Affairs).  The
applicant's Representative in Congress cites anomalies in the applicant's
case in the form of three United States Army Physical Evaluation Board
memorandums and a 24 December 1997 statement of proceedings returning the
applicant case to the Physical Disability Agency due to a Department of the
Army Form 3947 which omitted the applicant's diagnosis of chronic fatigue
syndrome, non-cardiac chest pain, spinal stenosis, and scoliosis. The
Representative in Congress goes on to cite the conflicts between an
evaluation completed by a psychologist and a psychiatric addendum completed
by a medical doctor regarding the diagnosis of chronic fatigue syndrome
versus the diagnosis of somatoform disorder as a basis for the applicant's
disbelief that all of his issues were addressed in a fair and impartial
manner.

3.  The applicant's Representative in Congress states that it is the
understanding of her office that requirements may not have been met by the
Medical Evaluation Board in that regardless of the fact that an addendum
was prepared by a psychiatrist, the MEB proceedings do not indicate that
the psychiatrist was a member of the MEB as required by regulation.  She
states that the President signed Public Law 107-103 and that under section
202 the definition of qualifying of chronic disability was expanded and as
such, the Department of Veteran Affairs encourages Gulf War veterans that
were previously denied service



connection before the change in law to apply for compensation benefits.
The applicant's Representative in Congress states that the applicant's
discharge should be reevaluated and in particular, whether or not the
reference to undifferentiated somatoform disorder can be corrected to cite
his chronic physical disability (joint pain, fatigue and spinal
stenosis/scoliosis) based on an apparent lack of clear and conclusive
diagnosis by the parties involved.

4.  The applicant provides, through his Representative in Congress, a
memorandum dated 24 December 1997 discontinuing his PEB proceedings; a
memorandum dated 22 April 1998 approving his request for withdrawal of his
request for a formal hearing; a memorandum from the United States Army
Physical Disability Agency (USAPDA), Bethesda, Maryland, dated 24 June
1998, returning the applicant's PEB proceedings to the President, United
States Army PEB; a memorandum dated 26 June 1998 discontinuing his PEB
proceedings; a Veterans Administration Compensation and Pension Exam
Request that was completed by a medical doctor of forensic psychiatry dated
16 August 1999; and a letter from the Office of the Secretary of Defense
dated 27 September 2005, regarding Gulf War veterans whose units might have
been exposed to very low levels of chemical warfare agents that were
released during demolition operations following the war.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were
summarized in the previous consideration of the applicant's case by the
Army Board for Correction of Military Records (ABCMR) in Docket Number
AR20050001690, on 15 November 2005.

2.  The applicant enlisted in the Army on 5 December 1984 and he remained
on active duty through a series of reenlistments.

3.  The applicant's medical records are not available for review by the
Board at this time.  However, the available records indicate that on 12
March 1997, the applicant underwent a medical evaluation as part of a MEB.
The evaluating physician concluded that the applicant suffered from
degenerative disc disease of the lumbosacral spine, degenerative joint
disease of the lumbosacral spine with grade 1 spondylolisthesis, neurogenic
claudication secondary to medical diagnosis 1 and 2, intermittent benign
muscle jerks, benign positional vertigo and mixed headache syndrome with
both migrainous and tension type headaches, historically not
incapacitating.  The evaluating physician recommended referral to a PEB.

4.  On 9 April 1997 an addendum was added to the applicant's original MEB
evaluation that noted the applicant's chief complaint as fatigue.  During
the evaluation the applicant reported that he was no longer able to perform
his duties adequately and that in general his fatigue reduced is daily
activities by over 50 percent and his energy was not restored by sleep.
The physician noted that the applicant had undergone an extensive
evaluation, tests and studies for secondary causes of chronic fatigue all
of which were unremarkable.

5.  A second addendum to the original MEB evaluation was completed on
14 April 1997.  The evaluation physician, a psychiatrist, noted the
applicant was referred from the neurology department for multiple physical
complaints, some with objective evidence of disease, others without
objective evidence of disease and behaviors and responses on neurologic
exam that support nonpsysiologic complaints and responses.  The
psychiatrist noted that the inconsistency of subjective response on a
single exam raised concern for embellishment and that the applicant
reported that he had tried physical therapy for approximately 1 week and
then self-discontinued, claiming that it was not helping him.  The
psychiatrist diagnosed the applicant with undifferentiated somatoform
disorder, as manifested by multiple physical complaints unsupported by
objective findings, not intentionally produced, causing significant
impairment, ore than 6 months in duration; external precipitating stress,
minimal, routine military duty, degree of predisposition, none known;
degree of psychiatric impairment for military duty, moderate; degree of
psychiatric impairment for social and industrial adaptability, definite;
untreated and unimproved.

6.  The applicant was referred to a PEB on 13 May 1997.  On 18 June 1997,
the applicant's PEB was discontinued and the reasons cited were a
disorganized MEB, an illegible consult for electromyography/nerve condition
velocity, and the numerous addenda which all addressed the same problems.

7.  On 24 December 1997, a second PEB was discontinued and the reasons
cited were that his PEB proceedings omitted the diagnosis of chronic
fatigue syndrome, non-cardiac chest pain, spinal stenosis, and scoliosis.
The Commander, Darnall Army Community Hospital, Fort Hood, Texas, was asked
to add these conditions as diagnoses numbers 10, 11, 12, and 13 on the
applicant's PEB proceedings and since the applicant's evaluation for
chronic fatigue syndrome was 8 months old, to provide an addendum with his
current condition.





8.  On 1 April 1998, the applicant underwent an informal PEB.  The PEB
proceeding noted only two ratable medical diagnoses; undifferentiated
somatoform disorder manifested by multiple physical complaints unsupported
by objective findings rated at 30 percent; and low back pain with
degenerative joint and disc disease with scoliosis, grade 1
spondylolisthesis, spinal stenosis and neurogenic claudication rated at 20
percent.  A third MEB diagnosis which was not specifically identified was
determined not to be unfitting and therefore, was not rated.  The PEB
concluded that the applicant's multiple conditions prevented performance of
his duties, but his condition was not sufficiently stable for a final
adjudication.  The PEB recommended that the applicant's name be placed on
the TDRL with a combined disability rating of 40 percent and a
reexamination in October 1999.  The recommendation was approved on behalf
of the Secretary of the Army.

9.  On 22 April 1998 the applicant was notified by the Commander, Darnall
Army Community Hospital that his memorandum dated 21 April 1998 requesting
withdrawal of his formal hearing request was approved.  The applicant was
also informed that his request for the addition of chronic fatigue syndrome
as a diagnosis was not favorably considered and that the revised medical
board dictated on 5 March 1998 and the 9 February 1998 medical addendum
established that chronic fatigue syndrome was not an appropriate diagnosis
in his case.

10.  On 24 June 1998, the applicant's PEB proceedings were returned to the
President, United States Army PEB, Fort Sam Houston , Texas, by an official
at the USAPDA requesting that additional consideration by given to a report
by a psychologist that states that the applicant had no axis I or II
psychiatric diagnosis.  The USAPDA official stated that in the text of the
report, there was a strong indication that the applicant had problems with
maladaptive responses to life circumstances and it was hinted that these
may approach a personality disorder in nature even though the psychologist
did not specifically offer that diagnosis.  The USAPDA official stated that
the report conflicted with a psychiatric addendum from a medical doctor
which offered an Axis I diagnosis of somatoform disorder.  The USAPDA
official questioned how the disconnect could be explained; what was the
applicant's status at the time since the 10 April 1997 addendum was over 1
year old; and what was the contribution of any





maladaptive behaviors to his clinical status?  The USAPDA official stated
that regardless of the fact that an addendum was prepared in April 1997 by
a psychiatrist, the MEB proceedings dated 10 March 1998 did not indicate
that a psychiatrist was a member of the MEB as is required by regulation
and that, after resolution of the identified issues, if the applicant was
still believed to fall below retention standards based on a psychiatric
disorder, a psychiatrist must be a member of the MEB.

11.  On 26 June 1998, a PEB official notified the Commander, Darnall Army
Community Hospital that the PEB proceedings pertaining to the applicant had
been discontinued based on the USAPDA memorandum dated 24 June 1998.

12.  Aside from the information that has been mentioned in these
proceeding, the facts and circumstances surrounding the applicant's release
from active duty are not on file.  The DD Form 214 that he was furnished
shows that on 23 November 1998, the applicant was honorably retired from
the Army under the provisions of Army Regulation 635-40, paragraph 4-
24B(2), by reason of a temporary physical disability.

13.  A Veteran Administration Compensation and Pension Exam Request dated
16 August 1999, conducted by a medical doctor in forensic psychiatry, which
was submitted by the applicant in support of his appeal to this Board
indicates that the applicant's diagnosis has changed since his discharge
from the service and that his additional diagnosis include post traumatic
stress disorder and obsessive compulsive disorder.  The attending
physician's report, indicates that the applicant's post traumatic stress
disorder and his obsessive compulsive disorder are considered to have
existed during his period on active duty and that it is likely, because
anxiety conditions often contribute to bodily symptoms, that these
conditions contribute to his undifferentiated somatoform disorder.

14.  On 13 August 2002, the applicant was notified that the PEB had
received a recent period medical examination and other available records
and conducted an informal hearing.  He was informed that the informal PEB
recommended that his name be removed from the TDRL and that he needed to
indicate if he agreed with the findings and recommendation of the PEB.  He
was further informed that if he wished to submit a rebuttal it must be
based on specific issues and fully justified.






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

16.  On 21 October 2002, the applicant was notified that his name was being
removed from the TDRL and he was informed that he would no longer receive
retirement payments.

17.  In a letter dated 27 September 2005, that the applicant has now
submitted to this Board in support of his request for reconsideration the
Deputy Assistant Secretary of Defense, Force Health Protection and
Readiness notified him that some years ago, Gulf War veterans of units that
here near Khamisiyah, Iraq, between 10 March and 13 March 1991, had been
contacted and informed of possible exposure to very low levels of chemical
warfare agents released during demolition operations following the war.
The applicant was informed that the American Journal of Public Health,
Institute of Medicine researchers compared the causes of death and their
rates among United States Army Gulf War veterans whose units might have
been exposed to very low chemical warfare agents with United States Army
Gulf War veterans whose unites were unlikely to have been exposed.  The
letter indicates that the rates and causes of death for both groups were
similar and that the overall rate of death for cancer was the same with
only a slightly higher death rate due to brain cancer among service members
assigned to units that might have been exposed. The letter further
indicates that the results of the study were based on death records from
1991 through 2000 and that the Department of Veterans Affairs is continuing
to conduct death rate studies of all Gulf War veterans.  The letter
indicates that the results of the studies should help to clarify the long
term health outcomes of Gulf War veterans, including those linked to the
Khamisiyah demolition.  The letter indicates that findings for any
indication of specific health related issues would continue to be
monitored.




18.  On 15 November this Board denied the applicant's request for
correction of his records to show that he was retired of physical
disability in 1998 rather than being placed on the TDRL.

19.  Army Regulation 635-5 serves as the authority for the preparation of
the DD Form 214.  It provides, in pertinent part, that the DD Form 214 will
be prepared to reflect an individual's service as it exists on the date of
release from active duty (REFRAD) or discharge.  There is no provision in
Army Regulation for inclusions of illnesses on discharge/separation
documents.

20.  Army Regulation 340-21 provides for the amendment of medical records.
It states, in pertinent part, that individuals may request the amendment of
their records, in writing, when such records are believed to be inaccurate
as a matter of fact rather than judgment, irrelevant, untimely, or
incomplete.  The amendment procedures are not intended to permit challenges
of an event in a record that actually occurred, or to permit collateral
attack upon an event that has been the subject of a judicial or quasi-
judicial action.  Consideration of a request for amendment would be
appropriate if it can be shown that (1) circumstances leading up to the
event recorded on the document were challenged through administrative
procedures and found to be inaccurately described; (2) the document is not
identical to the individual’s copy; or (3) the document was not constructed
in accordance with the applicable record-keeping requirements prescribed.

DISCUSSION AND CONCLUSIONS:

1.  As previously stated there is no provision in Army Regulation for
inclusions of illnesses on discharge/separation documents.  Therefore, his
medical diagnosis was properly omitted from his DD Form 214.

2.  The applicant's Army medical records were constructed by Army
physicians to reflect his medical conditions while he was in the Army.  He
has submitted insufficient evidence to show that the diagnosis currently
reflected in his Army medical records are incorrect.

3.  The applicant was retired by reason of a physical disability on 23
November 1998, and he was placed on the TDRL.  His DD Form 214 properly
reflects this information.  His condition later stabilized and he was
permanently retired by reason of physical disability which was rated at 10
percent.




4.  The contentions made by the applicant's Representative in Congress have
been noted.  However, she has submitted insufficient evidence to show that
the diagnosis and the disability rating that was assigned to the applicant
at the time of his formal PEB on 24 September 2002 was in error or unjust.
The evidence of record shows that the applicant was diagnosed with
undifferentiated somatoform disorder and neither the applicant nor his
Representative in Congress has shown, by a preponderance of evidence, that
the diagnosis and the assigned rating are incorrect.  As such, there is no
basis for amending the applicant's Army medical records to reflect a
different diagnosis.

5.  In order to justify correction of a military record the applicant must
show or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy this requirement.

6.  In view of the foregoing, there is no basis for granting the
applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__HF ___  ___WC __  ___DD__  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 to amend the decision of
the ABCMR set forth in Docket Number AR20050001690, dated 15 November 2005.




                                  ______  Hubert Fry________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060008394                           |
|SUFFIX                  |                                        |
|RECON                   |20051115                                |
|DATE BOARDED            |20070213                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  177  |108.0000/DISABILITY RETIREMENT          |
|2.  178                 |108.0100/DIAGNOSIS                      |
|3.  269                 |124.0000/MEDICAL RECORDS                |
|4.  270                 |124.0100/CHANGE IN DIAGNOSIS            |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]