IN THE CASE OF:	  

		BOARD DATE:	        02 December 2008

		DOCKET NUMBER:  AR20080014971 


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 a medical discharge.

2.  The applicant defers to counsel‘s statement.

3.  The applicant provides those documents submitted by counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant be afforded a medical discharge and that she receive a disability retirement effective from 28 November 2001.

2.  Counsel states, in effect, the applicant’s request for correction of her military record is filed pursuant to a remand to the Army Board for Correction of Military Records (ABCMR) by the United States Court of Federal Claims.  Counsel further states:

   a.  the applicant entered active duty in perfect health on 22 March 2001;

	b.  the applicant received a General [sic] Discharge on 28 November 2001 by reason of a “physical condition, not a disability”;

	c.  at the time of her discharge, the applicant had the Epstein - Barr Virus (EBV) which manifested as mononucleosis and rendered her totally disabled and unable to perform her duties;

	d.  at the time of her discharge, the applicant did not have the benefit of legal representation, nor was she advised of her rights to seek legal representation and to request a medical evaluation before being discharged; and

	e.  the Social Security Administration (SSA), on 27 February 2008, concluded the applicant was totally disabled due to her disability caused by EBV and mononucleosis.

3.  Counsel provides a Table of Contents with the applicant’s DD Form 149 (Application for Correction of Military Record) and 15 enclosures.

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 enlisted in the US Army Reserve Delayed Entry Program (DEP) for 8 years on 5 March 2001.  On 21 March 2001, she was discharged from the DEP and enlisted in the Regular Army for 4 years on 22 March 2001 for training in Military Occupational Specialty (MOS) 98K (Signal Collection/Identification Analyst).  

3.  The applicant underwent an enlistment physical examination on 25 January 2001.  The examination found she suffered from mild pes planus, a distance vision problem in her left eye, and tachycardia.  She was determined to be unfit for military service without a medical waiver.  She was granted a medical waiver and permitted to enlist.

4.  On 22 March 2001, the applicant was assigned to Company A, 120th Adjutant General (AG) Battalion (Reception), Fort Jackson, SC.  On 30 March 2001, she was further assigned to Company B, 2nd Battalion, 13th Infantry Regiment, 1st Basic Combat Training (BCT) Brigade, Fort Jackson to begin BCT.

5.  The applicant’s military service record is incomplete for this review.  She apparently completed BCT at Fort Jackson and was transferred to Company D (Training), 344th Military Intelligence Battalion, Goodfellow Air Force Base, San Angelo, TX, with duty station at the Naval Air Station, Pensacola, FL for Advanced Individual Training (AIT) in her enlistment MOS.  She did not complete her AIT.  The record shows she was separated at Fort Rucker, AL.

6.  The applicant’s complete medical records are unavailable.  Those limited records provided by the applicant’s counsel listed as Enclosure 10 (Naval Hospital, Pensacola, FL, 7 June 2001 through 14 November 2001) show that:

   a.  between 7 June 2001 and 14 November 2001 she had 26 visits to the medical treatment facility and/or Naval Hospital for a variety of minor illnesses;

	b.  she was treated with the following drugs:  diphenhydramine (Benadryl - antihistamine), multivitamins and vitamin C, promethazine (sedative), dextropropoxyphene (Darvocet-N - antihistamine), doxycycline (antibiotic),  acetominophen (analgesic), Donnatal (anticholinergic antispasmodic), metronidazole (anti-bacterial for treatment of vaginitis), pseudoephedrine (decongestant), and hydrocortisone (anti-inflammatory skin cream);

	c.  she had an ultrasound of her liver and spleen as a result of “s/p [status post] mono[nucleosis] infection with ? continued hepatosplenomeglia.”  The liver and spleen were sonographically normal with no evidence of enlargement of the liver or spleen (hepatosplenomegaly or HSM); and

	d.  on 10 September 2001 she was seen in preparation for an administrative discharge.  She was “medically cleared from HSM with normal abdominal US [ultrasound] and normal EBV titers.”  The medical doctor cleared her for discharge.

7.  On 28 November 2001, the applicant, contrary to counsel’s assertion she received a General Discharge, was honorably discharged after serving only 8 months and 7 days.  She was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph
5-17, by reason of a physical condition, not a disability.

8.  On 15 July 2005, the applicant filed a claim with the SSA for supplemental security income alleging disability since 15 July 2003.  She was denied and requested a hearing before an administrative law judge (ALJ).  Her hearing was conducted on 7 February 2008.  On 27 February 2008, the ALJ concluded the 


applicant was disabled as a result of “positive active mononucleosis, chronic cholecystitis – status post laparoscopic cholecystectomy, cervical lymphadenopathy, chronic fatigue, sinus tachycardia, hypertension, chest pain, pulmonic insufficiency, tricuspid regurgitation, mitral valve prolapse, essential familial tremor, weight loss, excessive daytime sleepiness with possible sleep apnea and narcolepsy, depression, and anxiety.”

9.  Infectious mononucleosis, "mono," "kissing disease," and “glandular fever” are all terms popularly used for the very common illness caused by EBV.  It is a member of the herpes virus family.  Symptoms of infection with EBV include fever, malaise, and sore throat.  The designation "mononucleosis" refers to an increase in a special type of white blood cells (lymphocytes) in the bloodstream relative to the other blood components as a result of the EBV infection.  Infectious mononucleosis is usually a self-limited, although sometimes prolonged, and often uncomfortable illness.  While specific treatment is rarely necessary, the potential complications make it essential that people with this illness be under the care of a physician.

   a. The EBV that causes mononucleosis is found throughout the world.  By the time most people reach adulthood, an antibody against EBV can be detected in their blood.  In the U.S., up to 95% of adults 35-40 years of age have antibodies directed against EBV.  This means that most people, sometime in their lives, have been infected with EBV.  The body's immune system produces antibodies to attack and help destroy invading viruses and bacteria.  These specific antibodies can be detected in the blood of people who have been infected.

   b.  While there are other illnesses falling under the broad classification of mononucleosis that cause similar symptoms and an increase in blood lymphocytes, the form caused by the EBV is by far the most common.

   c.  The EBV can infect any person.  As previously discussed, the majority of people have become infected with the virus by the time that they reach adulthood.  Mononucleosis is most often diagnosed in adolescents and young adults, with a peak incidence at ages 15-17.  However, it is also seen in children.  Generally, the illness is less severe in young children and may mimic the symptoms of other common childhood illnesses, which may explain why it is less commonly diagnosed or recognized in this younger age group.

	d.  Mononucleosis is usually spread by person-to-person contact.  Saliva is the primary method of transmitting mono.  Infectious mononucleosis developed its common name of "kissing disease" from this prevalent form of transmission 


among teenagers.  A person with mononucleosis can also pass the disease by coughing or sneezing, causing small droplets of infected saliva and/or mucus to be suspended in the air which can be inhaled by others.  Sharing food or beverages from the same container or utensil can also transfer the virus from one person to another since contact with infected saliva may result.

   e.  Most people have been exposed to the virus as children, and as a result of the exposure, they have developed immunity to the virus.  It is of note that most people who are exposed to the EBV don't ever develop mononucleosis.  The incubation period for mononucleosis, meaning the time from the initial viral infection until the appearance of symptoms, is between four and six weeks.  During an infection, a person is likely able to transmit the virus to others for at least a few weeks.

	f.  A common, but usually not serious, complication of mononucleosis is a mild inflammation of the liver, or hepatitis.  This form of hepatitis is rarely serious or requires treatment.  The enlargement of the spleen that occurs with mononucleosis makes traumatic rupture of the spleen a possible complication.  Fortunately, more severe complications of mononucleosis are quite rare, and it is very rarely fatal in healthy people.

   g.  Research has shown that, depending on the method used to detect the virus, anywhere from 20% to 80% of people who have had mononucleosis and have recovered, will continue to secrete the EBV in their saliva for years due to periodic "reactivations" of the viral infection.  Since healthy people without symptoms also secrete the virus during reactivation episodes throughout their lifetime, isolation of people infected with EBV is not necessary.  It is currently believed that these healthy people, who nevertheless secrete EBV particles, are the primary reservoir for transmission of EBV among humans.

10.  Army Regulation 635-200, paragraph 5-17, states that a commander may approve separation on the basis of a physical or mental condition that does not amount to a disability.  Such conditions may include, but are not limited to, chronic airsickness, chronic seasickness, enuresis, sleepwalking, dyslexia, severe nightmares, claustrophobia, and other disorders manifesting disturbances of perception, thinking, emotional control or behavior sufficiently severe that the Soldier's ability to effectively perform military duties is significantly impaired. 

11.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for retention and separation, including retirement.  Chapter 3 gives the various medical conditions and physical defects which may render a 


Soldier unfit for further military service and which fall below the standards required for enlisted Soldiers of the Active Army, Army National Guard/Army National Guard of the United States, and United States Army Reserve.  Possession of one or more of the conditions listed in Chapter 3 does not mean automatic retirement or separation from the Service.  Physicians are responsible for referring Soldiers with conditions listed below to the physical disability evaluation system (PDES) and a medical evaluation board (MEB).  It is critical that MEBs are complete and reflect all of the Soldier’s medical problems and physical limitations for proper referral to a physical evaluation board (PEB).  The PEB will make the determination of fitness or unfitness.  The PEB, under the authority of the US Army Physical Disability Agency (USAPDA), will consider the results of the MEB, as well as the requirements of the Soldier’s MOS, in determining fitness.

12.  Mononucleosis is not listed as a disqualifying condition in Chapter 3 of Army Regulation 40-501; however, certain complications are listed as disqualifying:

	a.  a current or history of cirrhosis, hepatic cysts, abscess, or sequelae of chronic liver disease;

	b.  Hepatitis, B or C, chronic, when following the acute stage, symptoms persist, and there is objective evidence of impairment of liver function; and/or

	c.  Chronic splenomegaly.

13.  Chapter 61, Title 10, U.S. Code provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability.  In the Army, the USAPDA, under the operational control of the Commander, US Army Human Resources Command (USAHRC), Alexandria, VA, is responsible for operating the PDES and executes Secretary of the Army decision-making authority as directed by Congress in Chapter 61, Title 10, U.S. Code, and in accordance with Department of Defense (DOD) Directive 1332.18 and Army Regulation
635-40 (Physical Evaluation for Retention, Retirement, or Separation).

14.  Army Regulation 635-40 establishes the Army's 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 office, grade, rank, or rating.  It provides for MEBs, 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 Army Regulation 40-501.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.  

15.  Soldiers enter the PDES in one of four ways:

	a.  Referral by an MEB.  When a Soldier has received maximum benefit of medical treatment for a condition that may render the Soldier unfit for further military service, the medical treatment facility (MTF) conducts an MEB to determine whether the Soldier meets the medical retention standards of Army Regulation 40-501, chapter 3.  If the Soldier does not meet medical retention standards, he or she is referred to a PEB to determine physical fitness under the policies and procedures of Army Regulation 635-40;

	b.  Referral by an MOS/Medical Retention Board (MMRB).  The MMRB is an administrative screening board the chain of command uses to evaluate the ability of Soldiers with permanent medical profiles to physically perform in a worldwide field environment in their primary MOS.  Referral to an MEB/PEB is one of the actions the MMRB Convening Authority may direct; 

	c.  Referral as the result of a fitness for duty medical examination.  When a commander believes a Soldier is unable to perform MOS-related duties due to a medical condition, the commander may refer the Soldier to the MTF for evaluation.  If the evaluation results in an MEB and the MEB determines that the Soldier does not meet medical retention standards, the Soldier is referred to a PEB; and 

	d.  Referral as a result of Headquarters, Department of the Army action.  The Commander, USAHRC, upon recommendation of The Surgeon General of the Army, may refer a Soldier to the responsible MTF for medical evaluation as described in (c) above.  USAHRC also directs referral to a PEB when it disapproves the MMRB recommendation to reclassify a Soldier.

16.  Title 10, U. S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating at least 30 percent.  Title 10, U. S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rating at less than 30 percent.  



DISCUSSION AND CONCLUSIONS:

1.  The applicant, through counsel, requests a medical discharge and disability retirement effective 28 November 2001.

2.  The applicant served on active duty from 22 March 2001 to 28 November 2001.  During that time, she was in BCT at Fort Jackson and AIT at Naval Air Station, Pensacola.

3.  While undergoing AIT, the applicant developed a case of mononucleosis and was treated by Department of the Navy medical personnel.  Mononucleosis is a common illness caused by the EBV, a herpes virus.  Up to 95% of the adult population in the US has antibodies directed against EBV.

4.  For reasons unknown, but possibly related to her repeated visits to sick call, her chain of command sought to administratively discharge her for a physical condition which did not rise to the level of a disability.  This action was permitted under the provisions of Army Regulation 635-200, paragraph 5-17.

5.  In processing the applicant for an administrative discharge, the chain of command referred her to medical personnel for evaluation.  The medical evaluation was conducted on 10 September 2001, and it was determined there was no medical reason to continue her on active duty for treatment or for disability evaluation through the PDES.  Her doctors found that she was “medically cleared from HSM with normal abdominal US [ultrasound] and normal EBV titers.”  In other words, medical doctors determined the applicant had no condition listed in Army Regulation 40-501 which would have mandated her referral to the PDES under Army Regulation 635-40.

6.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.  Although she was treated for mononucleosis during her short period of active duty, she was determined to have no disability which would warrant processing through the Army’s PDES, and she was medically cleared for administrative separation action under Army Regulation 635-200.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ____X____  ___X_____  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)                                         AR20080014971



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ABCMR Record of Proceedings (cont)                                         AR20080014971



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