IN THE CASE OF:	  

	BOARD DATE:	  10 June 2008

	DOCKET NUMBER:  AR20080008284 


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 reconsideration of an earlier request for a medical retirement.

2.  The applicant states, in effect, that his Department of Veterans Affairs (DVA) ratings are the results of injuries he received mainly in combat.  He contends that his diabetes was never factored into his medical boards because he signed a waiver to remain on active duty.  He claims that had he known it [diabetes] would have been omitted from this board his decision to remain on active duty might have been different.

3.  The applicant provides a letter, dated 1 May 2008, from a Member of Congress; a personal statement, dated 12 May 2008; and a DVA Rating Decision, dated 11 May 2001.

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 AR20070008934, on 25 January 2008.

2.  The applicant provided a DVA Rating Decision, dated 11 May 2001, which shows service connection was granted for Post Traumatic Stress Disorder 
(30 percent); residuals of cervical spine injury with dorsal kyposis (20 percent); diabetes mellitus (20 percent); residuals, left scalpular and shoulder injury with post-operative left ulnar transposition, minor (20 percent); mechanical low back pain (10 percent); residuals of head injury with vertigo and headaches 
(10 percent); tinnitus (10 percent); and status post tuft fracture, right middle finger (major) (0 percent), for a combined rating of 70 percent.

3.  The DVA Rating Decision is new evidence which will be considered by the Board.

4.  After having prior active and inactive service, the applicant enlisted in the Regular Army on 2 April 1990.  He was promoted to sergeant with an effective date of 1 December 1992.

5.  On 28 February 1991, the applicant was issued a permanent profile of 311111 for diabetes mellitus.  His profile assignment limitations indicated that he must be assigned to non-isolated areas and must have immediate access to caloric intake (Meals Ready to Eat (MRE) or other operational rations).  His Army Physical Fitness Test (APFT) consisted of push-ups, sit-ups, and the two-mile run.

6.  On 18 March 1991, the applicant's case was considered by a Medical Evaluation Board (MEB).  The MEB diagnosed the applicant as having adult onset diabetes mellitus, non-insulin requiring, and mild hypercholesterolemia.  The applicant indicated that he did desire to continue on active duty.  The MEB recommended that the applicant be referred to a Physical Evaluation Board (PEB) but recommended he be retained on active duty.  The applicant concurred on 5 April 1991.  

7.  The applicant appeared before an informal PEB on 10 April 1991.  The PEB found the applicant physically fit for duty within the limitations of his profile and recommended that he be returned to duty as fit.  The PEB indicated that the applicant was currently on an oral hypoglycemic agent with good control.  Finger stick measurement of glucose one week after initiation was 135 mg/dl by Accucheck.  The applicant was currently asymptomatic, could function in his military occupational specialty, and could continue physical fitness tests without restrictions, hence the finding.  The applicant concurred with the results of the PEB on 17 April 1991.  

8.  On 19 August 1993, the applicant reenlisted for a period of 4 years.  He was deployed to Somalia from 30 August 1993 to 22 December 1993.

9.  On 29 October 1993, while serving in Somalia, the applicant's back and neck were injured by an explosion.  He was hit by debris and had glass lodged in his back. 

10.  On 19 December 1996, a physician prepared a memorandum for the PEB Liaison Officer (PEBLO).  He indicated that the applicant did not meet the retention standards in accordance with Army Regulation 40-501 and would be processed by a medical board to determine fitness for further military service.  His probable disqualifying diagnoses were chronic ulnar neuropathy, chronic mechanical back pain, and diabetes.

11.  On 2 May 1997, the applicant was issued a permanent profile of 333111 due to chronic ulnar neuropathy, chronic mechanical back pain, and diabetes
mellitus.  His profile assignment limitations were no pushups or sit-ups and he must be assigned to non-isolated areas and have immediate access to caloric intake (MREs or other operational rations).  He was not to participate in the APFT.  He could participate in the alternate aerobic conditioning exercise events of unlimited bicycling and swimming.

12.  On 2 May 1997, an MEB diagnosed the applicant as having chronic mechanical low back pain and chronic ulnar neuropathy, status post ulnar nerve transposition, and diabetes mellitus.  He was referred to a PEB.  On 
6 May 1997, the applicant agreed with the findings and recommendation.

13.  On 12 May 1997, an informal PEB found the applicant physically unfit due to chronic mechanical low back pain, without muscle spasm or radiculopathy under VA Schedule for Rating Disabilities (VASRD) code 5295 (10 percent); and chronic ulnar neuropathy, status post ulnar nerve transposition, manifested by numbness and tingling with normal Electromyogram (EMG) and nerve conduction studies under VASRD code 8616 (10 percent), and recommended that he be separated with a combined rating of 20 percent with severance pay.  The PEB indicated that his diabetes mellitus was not unfitting and not rated.  The PEB found the applicant's medical and physical impairment prevented reasonable performance of duties required by his grade and military occupational specialty (MOS).  On 19 May 1997, the applicant did not concur with the findings and demanded a formal PEB.

14.  On 11 June 1997, a formal PEB found the applicant physically unfit due to chronic mechanical low back pain, without muscle spasm or radiculopathy under VASRD code 5295 (10 percent); and chronic ulnar neuropathy, status post ulnar nerve transposition, manifested by numbness and tingling with normal EMG and nerve conduction studies under VASRD code 86169 (10 percent).  Diabetes mellitus was found to be not unfitting and not rated.  The formal PEB recommended a combined rating of 20 percent and that the applicant be separated with severance pay.  

15.  The applicant was approved for retention on active duty beyond his expiration term of service due to pending MEB proceedings.  

16.  The applicant nonconcurred with the findings of the formal PEB and submitted a statement of rebuttal on 23 June 1997.  In summary, he stated that diabetes is unfitting according to Army Regulation 40-501, that he was denied an opportunity to advance his career because the Officer Candidate School board stated that his diabetes was unfitting, and that he was returned to the States because of his profile for diabetes.  He also points out that the damage to his back and left arm are permanent and should be rated at more than 20 percent.  

17.  On 23 June 1997, the PEB reviewed the applicant’s rebuttal and determined that his rebuttal did not contain any new objective medical information which would support any change to the recommended rating by the formal PEB.      

18.  On 2 July 1997, the U.S. Army Physical Disability Agency approved the formal PEB’s findings and recommendations.

19.  On 28 October 1997, the applicant was honorably discharged under the provisions of Army Regulation 635-40, paragraph 4-24b(3), by reason of physical 
disability with severance pay ($41,551.20).  He completed a total of 11 years, 
6 months, and 27 days of creditable active service.    

20.  Army Regulation 635-40 establishes the Army physical disability evaluation system 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 office, grade, rank, or rating.  It provides for medical evaluation boards, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in AR 40-501, chapter 3.  If the medical evaluation board determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a physical evaluation board.

21.  Army Regulation 635-40 states that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  

22.  Paragraph 3-1d of Army Regulation 635-40 states, in pertinent part, that although the ability of a Soldier to reasonably perform his or her duties in all geographic locations under all conceivable circumstances is a key to maintaining an effective and fit force, this criterion (world-wide deployability) will not serve as the sole basis for a finding of unfitness. 

23.  Army Regulation 40-501 (Standards of Medical Fitness), paragraph 2-8 states that diabetes mellitus, any type, including a history of juvenile onset (insulin dependent, type I), is a cause for rejection for appointment, enlistment, and induction into military service.

24.  Paragraph 3-11 of Army Regulation 40-501 states that diabetes mellitus when proven to require hypoglycemic drugs in addition to restrictive diet for control, is a cause for referral to an MEB.

25.  Table 5-1 (Guidance on deployment of Soldiers with diabetes) of Army Regulation 40-501, currently in effect, states that a Soldier should not be deployed when duty will place the Soldier in an outside the Continental U.S. isolated area were appropriate medical care and means to monitor and support him/her are not available. 

26.  The VASRD states, in pertinent part, that VASRD code 5295 (lumbosacral strain) is rated at 0 percent when with slight subjective symptoms only; rated at 10 percent when with characteristic pain on motion; and rated at 20 percent when, with muscle spasm, unilateral, in standing position.  

27.  The VASRD code 8616 is neuritis.  Paragraph 4.123 (Neuritis, cranial or peripheral) of the VASRD states that neuritis, cranial or peripheral is to be rated on the scale provided for injury of the nerve involved.  See nerve involved for diagnostic code number and rating.  

28.  The VASRD states, in pertinent part, that VASRD code 8516 (paralysis of the ulnar nerve (incomplete)) is rated at 10 percent when mild (major, dominant side and minor, nondominant side); rated at 20 percent (minor) when moderate; and rated at 30 percent (major) when moderate.  

29.  Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rated at less than 30 percent.  Section 1212 provides that a member separated under Section 1203 is entitled to disability severance pay.

30.  Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant’s contention that his diabetes was never factored into his medical boards because he signed a waiver to remain on active duty.  On 18 March 1991, an MEB diagnosed him as having adult onset diabetes mellitus.  The MEB recommended that the applicant be referred to a PEB, and on 10 April 1991 an informal PEB found the applicant physically fit for duty within the limitations of his profile and recommended that he be returned to duty as fit.  The applicant concurred with the results of the informal PEB on 17 April 1991.  

2.  The applicant had been given an assignment limitation of assignment to non-isolated areas in 1991 and in August 1993 he was deployed to Somalia.  However, even the current version of Army Regulation 40-501 does not advise a blanket prohibition against deploying Soldiers with diabetes.  The regulation states Soldiers will not deploy to isolated areas when approved medical care and means to monitor and support the Soldier are not available.  The regulation in effect at the time did not even list this limitation. 

3.  In his rebuttal to the findings of the formal PEB, the applicant contended he was returned to the States because of his profile for diabetes.  There is no evidence to show that was why he was returned.  There is no evidence to show appropriate medical care and the means to monitor and support him were not available, in which case his deployment would not have been contrary to his profile even under today’s guidelines.  It is noted that he served in Somalia for four months; presumably he was obtaining the appropriate medical care/medications during that period.  In any case, non-deployability will not be the sole criterion for a finding of unfitness.  

4.  On 11 June 1997, a formal PEB found the applicant physically unfit due to chronic mechanical low back pain, without muscle spasm or radiculopathy 
(10 percent); and chronic ulnar neuropathy, status post ulnar nerve transposition, manifested by numbness and tingling with normal EMG and nerve conduction studies (10 percent).  Diabetes mellitus was found to be not unfitting and not rated.  

5.  The applicant’s contention that had he known that a diabetes diagnosis would be omitted from his medical boards his decision to remain on active duty might have been different was noted.  However, the informal 1991 PEB found him fit for duty and he concurred with that decision (i.e. his diabetes was not unfitting).  He reenlisted on 19 August 1993, indicating he felt himself to be sufficiently fit to continue his military career.  

6.  The applicant’s contention that he was denied acceptance as an officer candidate because of his diabetes was noted.  However, appointment medical standards are more stringent than retention standards.  The applicant was diagnosed with diabetes in 1991, after completing approximately 10 years of military service.  The Army has a vested interest in retaining experienced Soldiers when considering medical fitness or unfitness.  That is why the continued performance of military duties despite having a medical condition is a key criterion when determining fitness or unfitness.

7.  It is also acknowledged that Army Regulation 40-501 says diabetes controlled by drugs is a cause for referral to a MEB.  However, depending on the individual Soldier’s circumstances, referral to an MEB for a condition does not automatically render the Soldier unfit, for the reason noted above.

8.  There is insufficient evidence to show the applicant’s PEB disability rating was incorrect or that the recommendation for severance pay was not in compliance with law and regulation.  Therefore, there is no basis for granting the applicant’s request. 

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 to amend the decision of the ABCMR set forth in Docket Number AR20070008934, dated 25 January 2008.




       _    _xxxx__   ___
       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)                                         AR20080008284





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ABCMR Record of Proceedings (cont)                                         AR20080008284



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