RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  24 January 2008
	DOCKET NUMBER:  AR20070011342 


	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:


Mr. Gerald J. Purcell

Chairperson

Mr. Donald L. Lewy

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 that his medical discharge with severance pay be changed to a medical retirement; back pay from the date he was discharged until now; and full medical benefits.  He also requests that his overseas service be reflected on his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 18 August 2002.

2.  The applicant states that after many deployments he started to feel lightheaded and his head would hurt really badly all the time.  He would go on sick call and they would give him Motrin.  The Army treated him as though he was just lazy and trying to get out of physical training.  Finally, he got an appointment with a neurologist, and he had a seizure in the neurologist’s office.  He was sent to a medical board and was given less than a 30 percent disability rating.

3.  The applicant states that they (i.e., the Department of Veterans Affairs (VA)) gave him a 40 percent disability rating for his seizures and a 30 percent rating for his migraine headaches, which the Army did not even consider.  He was also treated for post-traumatic stress disorder (PTSD) and depression as well as for asthma.  The Army also gave him a CPAP (continuous positive airway pressure) machine, but the medical board refused to rate him on anything but his seizure disorder.  

4.  The applicant states that at the time of his discharge he was an outstanding noncommissioned officer (NCO) who led from the front, but he became ill.  He was not promoted even though he had made the cutoff score for promotion to   E-6.  His VA compensation is being withheld until he repays the severance pay he received.  So, he really has 13 years of service and nothing to show for it.  

5.  The applicant provides his DD Form 214 for the period ending 18 August 2002; a DA Form 638 (Recommendation for Award); his DA Form 2166-8 (NCO Evaluation Report) (NCOER) for the period May 2002 through July 2002; a VA Rating Decision, dated 6 August 2002; and a portion of a VA Rating Decision, dated on or about 30 January 2004.

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, the applicant enlisted in the Regular Army in military occupational specialty (MOS) 13M (Multiple Launch Rocket System Crewmember) on 23 February 2001.  There is no evidence of record to show he served overseas during this enlistment.  Item 12f (Foreign Service) of his DD Form 214 for the period ending 12 March 1999 shows he served 22 days of foreign service.  Item 5 (Oversea Service) of his DA Form 2-1 (Personnel Qualification Record) shows he served in Korea from 23 April 1994 through      14 May 1994 (22 days).  Item 38 (Record of Assignments) of his DA Form 2-1 is partially illegible but appears to show he was assigned to Fort Sill, OK on 21 May 1994.

3.  On 6 August 2001, the applicant was given a permanent physical profile due to his complex partial seizures.

4.  On 17 January 2002, a Medical Evaluation Board (MEB) referred the applicant to a Physical Evaluation Board (PEB) for a diagnosis of complex partial seizure, VASRD (VA Schedule for Rating Disabilities) code 8039.  On 4 March 2002, the applicant agreed with the MEB’s findings and recommendation.

5.  The Narrative Summary noted that the applicant began having seizures in March 2001.  Currently, he was having seizures about twice weekly.  He reported he experienced a prodrome of headache and left arm and left leg jerking just prior to a seizure.

6.  An addendum to the Narrative Summary, dated 9 May 2002, noted that the applicant had been referred to a civilian neurologist for further evaluation of his seizure disorder.  This addendum indicated that the applicant was not taking his medication regularly and reported having seizures about 5 to 6 times per week, several episodes with urinary incontinence. An EEG (electroencephalogram) was normal.  He began taking his medication on a more regular basis per the civilian neurologist’s recommendation and had noted a decrease in the number of seizures over the past month to about (illegible) seizures per week.


7.  On 1 July 2002, an informal PEB found the applicant unfit due to complex partial seizures without motor signs, episodes occurring twice weekly.  (Apparently, the illegible portion of the Narrative Summary addendum indicated his seizures decreased to about two per week.)  The PEB recommended the applicant be separated with severance pay with a 20 percent disability rating.  On 3 July 2002, he concurred with the findings of the informal PEB and waived a formal hearing of his case.

8.  The applicant provided a statement, but it cannot be determined at which stage of the MEB/PEB process he submitted it.  He stated he passed out while running on the 3-mile track.  He went on sick call with no results.  He started having temporal severe headaches.  While driving back from Vernon, TX, he blacked out and woke up in a wheat field with the car still running.  He started to notice that he was missing time.  He was driving home from Lawton, OK to Altus, OK and he guessed he blacked out.  When he came to, he was going down the road really slowly.  He always had a temporal migraine-type headache as a warning sign before his seizures began.

9.  The applicant received an NCOER for the period May 2002 through July 2002, which he signed on 29 July 2002.  The NCOER noted in part that he was “the most dependable and capable soldier I have ever worked with in 24 years of service”; that he was “a real go-getter that you can count on and believe in to accomplish any task”; and that his “profile does not hinder duty performance.”

10.  In a VA Rating Decision dated 6 August 2002, the applicant was awarded a 40 percent disability rating for complex partial seizures; a 10 percent rating for retropatellar syndrome, right knee; and a 10 percent rating for chrondromalacia, left knee.  The 40 percent evaluation for his complex partial seizures was assigned because he reported on VA examination that he had about 3 to            4 seizures a week.  A higher evaluation was not warranted because the evidence did not show an average of at least one major seizure in 4 months over the last year, or 9 to 10 minor seizures per week.

11.  On 18 August 2002, the applicant was discharged with severance pay due to disability.  Item 12f of his DD Form 214 for the period ending 18 August 2002 does not show he completed any foreign service.

12.  Effective 30 January 2004, the VA awarded the applicant a 30 percent disability rating for migraine headaches, apparently an increase of an earlier rating of zero percent.


13.  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.  In pertinent part, it states that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  It states that there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a soldier is found unfit because of another condition that is disqualifying.  Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.  

14.  The 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.  Unlike the VA, the Army must first determine whether or not a Soldier is fit to reasonably perform the duties of his office, grade, rank or rating.  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.

15.  The VASRD states a major seizure is characterized by a generalized     tonic-clonic convulsion with unconsciousness; a minor seizure consists of a brief interruption in consciousness or conscious control associated with staring or rhythmic blinking of the eyes or nodding of the head, or sudden jerking movements of the arms, trunk, or head, or sudden loss of postural control.  The VASRD states that a 20 percent rating is given when there is at least 1 major seizure in the last 2 years or at least 2 minor seizures in the last 6 months.  A   40 percent rating is given when there is at least 1 major seizure in the last           6 months or 2 in the last year; or averaging at least 5 to 8 minor seizures weekly. 

16.  Department of Defense Instruction (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.
17.  DODI 1332.39 states, for VASRD codes 8910 – 8914 (Epilepsies), that:

	The service member must be evaluated and the diagnosis made by a neurologist;

	The number of seizures each time frame (day, week, and month) must be recorded);

	Attacks following omission of prescribed medication or the ingestion of alcoholic beverages are not indicative of the controllability of the disease and are not relevant to the determination of seizure frequency for rating purposes; 

	Estimation of the social and industrial impairment due to the seizure activity should be made; and

	Seizures that occur during sleep are not relevant to the determination of seizure frequency unless they can be shown to significantly impair industrial adaptability.

18.  DODI 1332.39 states, for VASRD code 8100 (Migraine), that "prostrating" means that 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.

19.  DODI 1332.39 states, for VASRD code 6847 (Sleep apnea syndromes), there are four percentage rating options:  zero percent, 30 percent, 50 percent, and 100 percent, corresponding to assessed levels of disability relative to civilian earning capacity due to sleep apnea.  It states the following interpretation will apply:

	Total industrial impairment			100 percent
	Considerable industrial impairment	  50 percent
	Definite industrial impairment		  30 percent
	Mild industrial impairment			    0 percent

20.  Title 38, U. S. Code, sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  


21.  Until certain provisions of the law were changed in fiscal year 2004, a common misconception was that veterans could receive both a military retirement for physical unfitness and a VA disability pension.  Under the law prior to 2004, a veteran could only be compensated once for a disability.  If a veteran was receiving a VA disability pension and the Board corrected the records to show the veteran was retired for physical unfitness, the veteran would have had to have chosen between the VA pension and military retirement.  The new law does not apply to disability retirees with less than 20 years of service and retirees who have combined their military time and civil service time to qualify for a civil service retirement.  

22.  Army Regulation 600-8-14 (Identification Cards, Tags, and Badges) states that honorably discharged veterans who are rated as 100 percent disabled from a service-connected injury or disease are entitled to a military identification card and commissary, exchange, and MWR (morale, welfare, and recreation) benefits. Medical benefits are received through the VA.

23.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions), the version in effect at the time, stated a Soldier was in a nonpromotable status when he/she was undergoing medical evaluation proceedings to determine his/her ability to perform in his/her MOS.  Once a PEB determined that a Soldier was no longer qualified for continued active service, he/she would be removed from the promotion list.  The regulation was changed effective 10 February 2006 to allow for the promotion of a Soldier pending action by an MEB or PEB.

24.  Army Regulation 635-5 prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  In pertinent part, it states the total amount of foreign service completed during the period covered in item 12c (Net Active Service this Period) will be entered in item 12f.

DISCUSSION AND CONCLUSIONS:

1.  The applicant stated he had “many deployments.”  However, there is no evidence of record and he provides none to show he served overseas for any period of time other than the 22 days shown on his DD Form 214 for the period ending 12 March 1999.  That period of overseas service is properly shown on that DD Form 214 and is not eligible for entry on his DD Form 214 for the period ending 18 August 2002.  A copy of the DD Form 214 for the period ending        12 March 1999 will be provided to him. 

2.  The applicant stated that the VA gave him a 40 percent disability rating for his seizures and a 30 percent rating for his migraine headaches, which the Army did not even consider.  He stated that he was also treated for PTSD and depression as well as for asthma.  He stated that the Army also gave him a CPAP machine, but the medical board refused to rate him on anything but his seizure disorder.  

3.  The applicant stated that at the time of his discharge he was an outstanding NCO who led from the front.  This is borne out by his NCOER for the period May 2002 through July 2002, which he signed on 29 July 2002.  The NCOER in part noted that he was the most dependable and capable Soldier his rater had ever worked, that he was a real go-getter who could be counted on to accomplish any task, and that his profile did not hinder his duty performance.  That NCOER was a clear indication that his PTSD, his depression, his asthma, or the CPAP machine rendered him incapable of performing his duties.

4.  There was no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which was not in itself considered disqualifying for military service when the applicant was found unfit because of his complex partial seizures, which was disqualifying.  Only the unfitting conditions or defects and those which contributed to his unfitness would be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.  Since there is no evidence to show that the applicant’s PTSD, depression, asthma, or the CPAP machine rendered him unfit, they were properly not considered by the MEB/PEB.

5.  The applicant was never given a physical profile for his migraines, and the available evidence shows only that they occurred as a precursor to his seizures.  There is no evidence to show that he was unfit to perform his duties because of his migraines.  As he himself stated, he put the mission first.  Although the VA determined that he met the VASRD standard for a 30 percent disability rating for his migraines, the Army does not always strictly follow the VASRD.  For migraines, the guidelines laid out in Department of Defense Instruction 1332.39 are followed instead.  Those guidelines define "prostrating" as meaning the Service member must stop what he or she is doing and seek medical attention.  There is no evidence to show that the applicant sought immediate medical attention for migraines.

6.  It appears that the VA awarded the applicant a 40 percent disability rating for his complex partial seizures because he reported on VA examination that he had 
about 3 to 4 seizures a week.  That does not appear to meet the VASRD eligibility criteria of 5 to 8 seizures weekly; however, the VA is free to apply the VASRD as it sees fit.

7.  However, the addendum to the Narrative Summary indicated that the applicant was not taking his medication regularly and reported having seizures about 5 to 6 times per week.  In accordance with DODI 1332.39, attacks following omission of prescribed medication are not indicative of the controllability of the disease and are not relevant to the determination of seizure frequency for rating purposes.  

8.  After the applicant began taking his medication on a more regular basis, the number of his seizures per week decreased.  The informal PEB found the applicant’s complex partial seizures occurred twice weekly.  It is presumed that the addendum to the Narrative Summary also indicated that his seizures decreased to twice weekly.  That met the eligibility criteria only for a 20 percent disability rating.  

9.  The rating action by the VA does not necessarily demonstrate an error or injustice on the part of the Army.  The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit.  The VA is not required by law to determine medical unfitness for further military service in awarding a disability rating, only that a medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved (i.e., the more stringent standard by which a Soldier is determined not to be medically fit for duty versus the standard by which a civilian would be determined to be socially or industrially impaired), an individual’s medical condition may be rated by the Army at one level and by the VA at another level, or determined by the Army to be not unfitting and yet be rated by the VA.

10.  It is acknowledged that the law requires the applicant to repay his severance pay before he can be paid VA disability compensation.  However, had he been medically retired he would have had to waive his military retired pay in order to receive VA disability compensation.  If the VA raises his compensation rate to 100 percent, he would then become eligible for a military identification card.

11.  The applicant stated that he was not promoted even though he had made the cutoff score for promotion to E-6.  The regulatory guidance at the time stated that a Soldier undergoing medical evaluation proceedings was in a nonpromotable status, and once a PEB determined that a Soldier was no longer qualified for continued active service he/she would be removed from the promotion list.  

12.  The regulation has now been changed to allow for the promotion of an otherwise-eligible Soldier pending action by an MEB or PEB.  However, the fact 

that this change does not apply to the applicant is not inequitable as all other Soldiers who were on a promotion list who were medically discharged prior to the change were similarly not eligible for promotion.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__gjp___  __dll___  __dwt___  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.




__Gerald J. Purcell___
          CHAIRPERSON




INDEX

CASE ID
AR2000011342
SUFFIX

RECON

DATE BOARDED
20080124
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
108.01
2.
108.02
3.

4.

5.

6.