RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 December 2007
	DOCKET NUMBER:  AR20070010225 


	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

Mrs. Nancy L. Amos

Analyst

The following members, a quorum, were present:


Ms. Kathleen A. Newman

Chairperson

Ms. Rose M. Lys

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:

1.  The applicant requests, in effect, that his Physical Evaluation Board (PEB) proceedings be amended to add that he was unfit due to tuberculosis (TB).

2.  The applicant states that his medical records show he tested positive for TB and received treatment for one year.  He was not able to be present at his medical board proceedings to present this information on his own behalf.  However, he did note that he had tested positive for TB in a letter he wrote for the medical board.  When he was having problems with medical help from the Department of Veterans Affairs (VA) hospital, he was x-rayed and told he had a mass of some type.  They tested him and he came back positive for TB.  

3.  The applicant provides a Medical History and Duty Stations statement, dated 1 May 1986; two DA Forms 4700 (Medical Record – Supplemental Medical Data), Report Title: Tuberculosis Surveillance Flow Sheet for Patients on INH (isoniazid); and an undated (but probably prepared around April 1992) hospital discharge summary.

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.  After having had prior service in the U. S. Marine Corps, the applicant enlisted in the Regular Army on 31 January 1979.  He was assigned to Fort Leonard Wood, MO in August 1981.

3.  In 1983, the applicant was diagnosed with TB and placed on medication for apparently one year.

4.  On 1 May 1986, the applicant prepared a Medical History and Duty Stations statement.  The bulk of the statement dealt with his hearing loss and asthma.  At the bottom of the statement, he noted that he came up positive for TB while at Fort Leonard Wood, MO.

5.  On 20 June 1986, a Medical Evaluation Board (MEB) recommended the applicant be referred to a PEB for diagnoses of severe asthma and high frequency sensori-neural hearing loss.  On 15 July 1986, the applicant concurred with the MEB’s findings and recommendation.

6.  On 30 September 1986, an informal PEB found the applicant to be unfit due to bronchial asthma.  His hearing loss was found to be below the minimum for a rating.  The PEB recommended he be placed on the Temporary Disability Retired List (TDRL).  On 15 October 1986, the PEB Liaison Officer telephonically contacted the applicant and obtained his concurrence of the PEB’s findings and waiver of a formal hearing.  

7.  On 10 March 1987, the applicant was released from active duty.  He was placed on the TDRL effective 11 March 1987.

8.  On 22 July 1987, the applicant presented at a VA hospital for refills of his asthma medications.  An examination of his lungs revealed “few diffuse expiratory rhonchi (wheezes), which clear with cough, no rales heard.”  A chest x-ray was clear.

9.  On 13 May 1988, an informal TDRL PEB found the applicant to be unfit due to bronchial asthma.  His hearing loss was found to be not physically disabling and not rated.  The PEB recommended he be permanently retired with a 30 percent disability rating.  On 23 May 1988, the applicant concurred with the findings and waived a formal hearing.

10.  Effective 30 June 1988, the applicant was removed from the TDRL and permanently retired.

11.  Around April 1992, the applicant was referred for surgery after a pulmonary examination revealed an abnormal chest x-ray (a mass on the lung with no evidence of metastatic disease).  Pathology of the mass came back granulomatous disease, consistent with old TB.

12.  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 purposes of his employment on active duty.  

13.  Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-24a (pulmonary tuberculosis) in the version in effect at the time, stated that pulmonary TB was a cause for referral to an MEB when the disease of a member on active duty was found to be not incident to military service, or when treatment and return to useful duty would probably require more than 15 months including an appropriate period of convalescence, or if expiration of service would occur before completion of period of hospitalization.  

DISCUSSION AND CONCLUSIONS:

1.  It is acknowledged that the applicant had been diagnosed with and treated for TB around 1983/1984.  However, there is no evidence to show he had TB, or TB that continued to need treatment, at the time of his MEB in June 1986.  Four months after his placement on the TDRL, a chest x-ray still revealed the applicant’s lungs were clear.  It was not until around April 1992, five years after he was retired, that an abnormal chest x-ray revealed that his TB had returned.  

2.  Since there is no evidence to show that the applicant had TB at the time of his original MEB/PEB that would have warranted his referral to an MEB for TB, or that he had TB at the time of his TDRL PEB, there is insufficient evidence that would warrant granting the relief requested.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__kan___  __rml___  __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.



__Kathleen A. Newman__
          CHAIRPERSON



INDEX

CASE ID
AR20070010225
SUFFIX

RECON

DATE BOARDED
20071206
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
108.00
2.

3.

4.

5.

6.