RECORD OF PROCEEDINGS


	IN THE CASE OF:	



	BOARD DATE:	  11 December 2007
	DOCKET NUMBER:  AR20070001670 


	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.  


Ms. Catherine C. Mitrano

Director

Ms. Antoinette Farley

Analyst


The following members, a quorum, were present:


Mr. William D. Powers

Chairperson

Mr. Michael J. Flynn

Member

Ms. Sherry J. Slone

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, correction of his record to show that he was medically retired by reason of a physical disability with a 50 percent disability rating. 

2.  The applicant states, in effect, that the Army claimed that his condition existed prior to service (EPTS) and he was medically discharged due to migraines.  The applicant continues that his medical condition did not exist prior to him entering the service and has included documentation to support his claim.  

3.  Additionally, the applicant continues that he did not start having migraines until he served in Iraq in 2004, which he contends is supported by his medical records. The applicant states that he has been having approximately 2 to 3 migraines a week for the past two and a half years.  The applicant argues that he should be given a medical retirement with all appropriate benefits and entitlements based on the United States Department of Veterans Affairs, Code of Federal Regulation 38 (CFR) Book C Schedule for Rating of Disabilities # 4.124a (8100) Migraine and rated at 50 percent disability as shown under Miscellaneous Diseases.

4.  The applicant provides a four-page character reference letter, dated 27 November 2006; a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 3 March 2006; a Report of Medical Examinations, dated 22 August 2005; a Report of Medical History/History Summary, dated 22 August 2005; and excerpts from Army Regulation 40-501 (Standards of Medical Fitness), dated 27 June 2006 in support of this application.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's record shows he entered the Regular Army as a chief warrant officer two (CW2) on 23 October 2001 and was assigned to military occupational specialty 153D0 as a Pilot.  

3.  The applicant's DD Form 2808 (Report of Medical Examinations), dated 22 August 2005, shows in item 77 (Summary of Defects and Diagnoses) that he was diagnosed with migraines which were onset during Operation Iraqi Freedom in May 2004.  The entry also shows that upon his return to Fort Hood in March 2005, he received a CT Scan (Computed Tomography) which found no abnormalities.  The applicant's record also shows he was pending a MRI (Magnetic Resonance Imaging) of the brain.

4.  The applicant's DD Form 2807-1 (Report of Medical History), dated 22 August 2005 shows he indicated that he was not currently in good health.  The applicant explained that he has frequent tightness in his back, occasional pain when standing, occasional knee pain, variable ache on back and his chest, and migraines.  The applicant stated that his migraines started around May 2004 and he was currently seeking treatment.

5.  The applicant's records contain Medical Evaluation Board (MEB) Proceedings, dated 13 September 2005, which show that he was diagnosed with intractable migraines.  Block (13) of the applicant's DA Form 3947 indicates that his headaches started approximately in 2004 while entitled to basic pay.  The applicant's record shows he concurred with the MEB findings on 22 September 2005 and referral of his MEB to the Physical Evaluation Board (PEB) based on his unfitting medical condition.  On 22 September 2005, the applicant's case was referred to a PEB.

6.  On 27 September 2005, the PEB found the applicant unfit due to migraines and awarded him a 30 percent disability rating with placement on the Temporary Disability Retirement List (TDRL).  On 3 October 2005, the applicant did not concur with the findings and requested that the finding be changed to a 50 percent disability rating.  The applicant's record shows that he waived his right to a formal hearing.  On 4 October 2005, the PEB indicated that the applicant's weekly headaches did not rise to the level of severe economic inadaptability which is required for a 50 percent disability rating.

7.  On 18 October 2005, the applicant's case was returned to the PEB, for further clarification of the basis of the MTF (Medical Training Facility) findings.  The MTF indicated that the applicant's migraines were incurred while he was entitled to base pay and were properly rated at 30 percent.
8.  The applicant's case file included a Narrative Summary (NARSUM), dated September 2005.  The NARSUM shows the applicant complained of headaches "as long as he can remember" even though the applicant described his headaches as occurring approximately once a month and were associated with nausea.  The NARSUM also shows that the applicant's family history was noncontributory; however, the medical records, dated 27 December 2004 indicated the applicant had conveyed to the examiner that his family's history was positive for migraines in his mother. 

9.  On 15 November 2005, the PEB returned the applicant's case to the MTF for additional information.  On 5 December 2005, the MTF returned the case file to the PEB with additional information from the applicant, the applicant's physicians, parents, spouse, and associates.  The applicant and his relatives all denied that he had ever had headaches prior to his deployment to Iraq in 2004.  The applicant explained that his 27 December 2004 comment "as long as he can remember" is a misunderstanding and not an accurate statement, and offered no further comments.

10.  On 27 January 2006, the PEB reconsidered the applicant's case based on the new evidence and changed the finding to shows that his condition was unfitting, but existed prior to service (EPTS).  The findings shows the applicant's condition was not permanently aggravated by the military and he should be separated without benefits.

11.  On 1 February 2006, the applicant did not concur with the findings and requested a formal hearing.  On 3 February 2006, the applicant withdrew his case from the formal PEB hearing proceedings and concurred with the findings, dated 1 February 2006.

12.  A minority report provided by a member of the PEB opined that the applicant was unfit, due to migraines and should be compensated with a 10 percent disability and separated with severance pay.  The PEB concluded that the applicant's condition of migraines did not have to be officially diagnosed to have it be considered an EPTS condition and the applicant's present headaches were within what could be considered the natural progression/history for migraine headaches.

13.  On 28 February 2006, the applicant's case was approved by the Secretary of the Army.


14.  On 3 March 2006, the applicant was separated from active duty under the provisions of paragraph 4-24b (4) of Army Regulation 635-40 (Personnel Separations) for a physical disability without severance pay.  The applicant's DD Form 214 shows that based on the authority and reason for his separation, he was assigned a separation program designator (SPD) code of JFM for disability, existed prior to service, PEB. 

15.  The United States Army Physical Disability Agency provided a three-page advisory opinion for review with this case.  The staff advisory opinion was obtained from the United States Army Physical Disability Agency, Walter Reed Army Medical Center, Washington, DC, dated 30 August 2007.  In summary the opinion stated that the applicant's petition requests his condition of migraine headaches be considered as being incurred while he was entitled to basic pay and that he be retired due to a physical disability which did not exist prior to entering the service with a 50 percent disability rating.

16.  The opinion further states that with the exception of congenital and hereditary conditions, there is a presumption that any disease or injury discovered after a Soldier entered active service was not due to the Soldier's intentional misconduct or willful neglect and was incurred in the line of duty.  The opinion continues that only specific findings of natural progression of the preexisting disease or injury, based upon well established medical principles are enough to overcome the presumption of military service aggravation as shown in Army Regulation 635-40, B-2 or Army Regulation 635-40, paragraph 4-19, ie., conditions which existed prior to entry in service (2) application of accepted medical principles.

17.  The opinion concluded that the applicant had provided no new evidence regarding his contention that his headaches were incurred while entitled to basic pay in accordance with Title 10 USC 1201.  The opinion continues that the applicant concurred with the findings, and when presented with the opportunity to present his case before a formal board he waived his rights.  Additionally, the PEB's findings were supported by the greater weight of the evidence and they were not in violation of any statute, directives or regulations.  Therefore, the PEB's findings, based upon their discretion regarding the weight and preponderance of the evidence, should not normally be changed.

18.  The applicant submitted a character reference letter, dated 27 November 2006, from the Battalion Flight Surgeon for the 2nd Battalion, 227th Aviation Regiment of the 4th Brigade, 1st Cavalry Division from August 2003 through May 2005.  In summary, the Flight Surgeon's letter shows that he evaluated and 

treated the applicant for migraine headaches approximately in July 2004 during his one year deployment to Iraq.  The flight surgeon states that the applicant's headaches would not respond to most conservative treatment that was available to him.  The flight surgeon continues that after approximately two months, the applicant's symptoms were so frequent and so severe that he required evaluation by a Neurologist in theater.  The flight surgeon states that the applicant was evaluated by a neurologist at the 31st Combat Support Hospital, Baghdad, and was started on a series of prophylactic migraine headache medications with no response.  The flight surgeon further states that the applicant was grounded from flying duties.  The Flight surgeon states that he started an Aeromedical Summary with the intention that the applicant would require a waiver for flying duties if he were found fit for Army Standards. 

19.  Army Regulation 40-501 (Standards of Medical Fitness) governs the medical fitness standards for retention and separation, including retirement.  Paragraph 1-6 states that medical fitness standards cannot be waived by medical examiners or by the examinee.  Examinees initially reported as medically unacceptable by reason of medical unfitness when the medical fitness in chapter 2, 3, 4, or 5 apply, may request a waiver of the medical fitness standards in accordance with the basic administrative directive governing the personnel action.  

20.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (PDES) 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 or her office, grade, rank, or rating.  Paragraph 4-24b(4) (Final Disposition) of the United States Army Physical Disability Agency or the Army Physical Disability Appeal Board, U.S. Army Human Resources Command determined that the Soldier will be issue physical disability separation without severance pay in accordance with Title 10, United States Code, Sections 630, 12681, 1165, or 1169. 

21.  The United States Department of Veterans Affairs, Code of Federal Regulation 38 (CFR) Book C Schedule for Rating Disabilities provides in pertinent part, at Paragraph 4.124a-4, a schedule of ratings for neurological conditions and convulsive disorders including migraine, at 8100.
 
22.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons.  The 

regulation shows that the separation program designator "JFM" as shown on the applicant’s DD Form 214 specifies the narrative reason for discharge as "Disability, Existed Prior to Service, PEB" and that the authority for discharge under this separation program designator is "AR 635-5-1, paragraph 4-24b (4)".  The SPD/RE Code Cross Reference Table included in the regulation stipulates that the RE code assignment will be based on the Department of the Army directive authorizing separation.   

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show he was medically retired based on a service aggravated physical disability with a 50 percent disability rating.

2.  Evidence of record shows that the applicant had a MEB which determined he suffered with Intractable Migraines.  This condition was found not to have met medical retention standards in the Army in accordance with Army Regulation 40-501, Chapter 3.  

3.  The applicant's medical records indicated that he had a history of headaches prior to his military service.  

4.  Evidence shows the applicant initially concurred with the findings and recommendations of the MEB and PEB.  The applicant's records show that he pursued an appellate review process after waiving his rights.  Evidence of record confirms the applicant was properly processed through the Physical Disability Evaluation System in accordance with the applicable laws and regulations.

5.  On 3 March 2006, the applicant was separated from active duty under the provisions of paragraph 4-24b (4) of Army Regulation 635-40 (Personnel Separations) for disability, existed prior to service.  

6.  Evidence of record confirms the applicant’s separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  Accordingly, the type of discharge directed and the reason for discharge are appropriate considering all the facts of the case.

7.  Based on the foregoing, there is no basis for changing the applicant's disability rating by the Army in this case.  


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

MJF____  _WDP___  _SJS____  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 D. Powers__
          CHAIRPERSON




INDEX

CASE ID
AR20070001670
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.