IN THE CASE OF:	  

	BOARD DATE:	  15 May 2008

	DOCKET NUMBER:  AR20080003998 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his reentry (RE) code of 4 be changed to a code that will allow him to reenlist.

2.  The applicant states he was misdiagnosed by the Army.  He was retired in September 1998 with a diagnosis of systemic lupus eurematosis (SLE) and the arthritis that accompanies it.  At the time, he had an unexplained skin rash and some joint pains.  A year after his retirement the rash went away and has not returned.  He has had four physical examinations and no sign of lupus, no advanced arthritis, and no rash has been found.  He provides the last physical examination he took at Fort Stewart, GA, by a military doctor.  The doctor found no lupus and no outstanding arthritis.  He wants to reenlist and finish his time in the Army.

3.  The applicant provides physical examination results, dated 17 January 2008; a DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 24 July 1998; a DA Form 199, dated 5 February 2002; his DD Form 214 (Certificate of Release or Discharge from Active Duty); and his retirement orders.

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 on   1 June 1988.  He was promoted to Sergeant, E-5 on 1 March 1993 in military occupational specialty 19K (M1 Armor Crewman).

3.  The applicant’s Medical Evaluation Board proceedings and Narrative Summary are not available.  On 24 July 1998, a formal PEB found him to be unfit due to primary osteoarthritis with involvement of two or more major joints and groups of minor joints (20 percent); and a skin disorder, not otherwise specified but probably best described as solar urticaria manifested by wheal and blister formation with minimal exposure to ultraviolet radiation (10 percent).  In regard to the skin disorder, the DA Form 199 indicated that a connective tissue and/or inflammatory systemic disease was considered without a definite diagnosis made as yet, although one biopsy which suggested discoid or subacute cutaneous lupus was reported.  The condition appeared to be progressive and was not considered stable at that time.

4.  On 5 August 1998, the applicant concurred with the findings of the formal PEB.

5.  On 23 September 1998, the applicant was retired and placed on the Temporary Disability Retired List (TDRL).  He was given an RE code of 4.

6.  On 5 February 2002, a TDRL PEB found the applicant to be unfit due to primary osteoarthritis with involvement of two or more major joints and groups of minor joints, stable for rating purposes (20 percent); and a skin disorder, not otherwise specified, but described as solar urticaria on a prior DA Form 199     (10 percent).  In regard to the skin disorder, the DA Form 199 indicated that consideration was given to a possible diagnosis of discoid lupus based on a skin biopsy; however, that had not been conclusive.  The condition was rated as eczema with itching involving exposed surfaces, condition stable for rating purposes.  The applicant was removed from the TDRL and permanently retired, apparently shortly after this PEB was completed.

7.  The applicant provided the results of a physical examination, taken at Winn Army Community Hospital, Fort Stewart GA, dated 17 January 2008.  This document indicated that the applicant was medically retired but subsequent Department of Veterans Affairs findings were not consistent with the reasons he was retired.  This examination found normal movement of all the applicant’s extremities.  It noted that no major disease or disorders were noted, no clinical findings of muscular/skeletal or skin disorder or disease were noted, and no indication of SLE was noted.  It did state that recent laboratory tests, chest x-ray, and electrocardiogram were pending at that point.

8.  Pertinent Army regulations provide that prior to discharge or release from active duty individuals will be assigned RE codes based on their service records or the reason for discharge.  Army Regulation 601-210 covers eligibility criteria, policies and procedures for enlistment and processing into the Regular Army (RA) and the U.S. Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of armed forces RE codes, including RA RE codes.

9.  RE code 4 applies to persons not qualified for continued Army service, and the disqualification is non-waivable.  

10.  Soldiers retired by reason of physical disability fall into this category.

11.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for procurement, retention, and retirement.  Paragraph 2-11c states that current or history of chronic osteoarthritis of isolated joints of more than a minimal degree which has interfered with the following of a physically active vocation in civilian life or that prevents the satisfactory performance of military duty is a cause for rejection for enlistment.  Paragraph 2-32n states a history of photosensitivity, including but not limited to any primary sun-sensitive condition, such as polymorphous light eruption or solar urticaria, or any dermatosis aggravated by sunlight such as lupus erythematosus, are causes for rejection for enlistment.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he was misdiagnosed by the Army when he was retired with a diagnosis of SLE and the arthritis that accompanies it.  

2.  The applicant’s complete MEB/PEB packets are not available.  However, both the DA Forms 199 he provided indicated only that a connective tissue and/or inflammatory systemic disease was considered without a definite diagnosis, although one biopsy suggested (but was not conclusive of) discoid or subacute cutaneous lupus.


3.  The two DA Forms 199 provided by the applicant found him to be unfit due to osteoarthritis and a skin disorder.  He acknowledges that at the time he had an unexplained skin rash and some joint pains.  There is no evidence to show that he disagreed with any findings of the two PEBs for which he provided the DA Forms 199, and there is evidence to show that he concurred with the findings of the 24 July 1998 PEB.  

4.  Because the applicant was retired for physical disability in 1998, he was properly given an RE code of 4.  

5.  The governing regulation states that current or a history of chronic osteoarthritis of isolated joints of more than a minimal degree that prevents the satisfactory performance of military duty is a cause for rejection for enlistment.  The governing regulation also states that a history of photosensitivity (including but not limited to any primary sun-sensitive condition, such as polymorphous light eruption or solar urticaria) is a cause for rejection for enlistment.  These medical standards are meant to protect the individual and any fellow Soldiers with whom he must associate.  

6.  The applicant’s elation that, a year after his retirement, the rash went away and four physical examinations have found no sign of lupus, advanced arthritis, or rash is noted.  However, the available evidence shows that at one time the applicant did have osteoarthritis and a skin disorder.  It could be tragic if the applicant was allowed to enlist and his symptoms suddenly reappeared while he was in a combat situation.

7.  Given the applicant’s medical history, and since there was no error in giving him an RE code of 4, there is insufficient evidence that would warrant granting the relief requested.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___xx___  ___xx___  ___xx___  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.




	_______xxx_____________
      	CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080003998



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ABCMR Record of Proceedings (cont)                                         AR20080003998



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