IN THE CASE OF:	  

		BOARD DATE:	  	  16 April 2009

		DOCKET NUMBER:  AR20080019117 


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, in effect, correction of his records to show his disability is based on a disease received in the line of duty (LD) as a direct result of armed conflict or caused by an instrumentality of war period as defined by law.

2.  The applicant states, in effect, he was assigned to a combat operation in the Southwest Asia theater of operations in Saudi Arabia during the Persian Gulf War from 2 August 1990 to 31 July 1991.

	a.  The applicant states that he has chronic inflammatory demyelinating poly-neuropathy (CIDP), which is listed as one of 11 diseases on the Department of Veterans Affairs (VA) presumption list and notes the disease must be manifested by 31 December 2011.

	b.  The applicant states that during the Physical Disability Evaluation System (PDES) and placement on the temporary disability retired list (TDRL) process, he was unaware his condition was listed on the Persian Gulf War VA presumption list.  As a result, he thought that the LD determination was the only and correct judgment at that time.

	c.  The applicant states that after the PDES process, he had no choice but to accept this final ruling and sign the DA Form 199 (Physical Evaluation Board (PEB) Proceedings) because the decision was made nearly 2 months after his retirement date.  He adds that not accepting the decision meant he would continue without TRICARE medical insurance coverage and he did not want his family to wait and suffer any longer.  He notes that he was released from the TDRL on 18 July 2008, but did not receive his retirement orders until 10 September 2008.

	d.  The applicant concludes by stating the PEB marked "Yes" on the DA Form 199 in item 8, column f, which indicates "proximate result of performing duty."  He states that the guidelines he provides with his application shows that the correct usage of the "proximate result of performing duty" block is for Army Reserve Component (RC) Soldiers called to active duty and he was a Regular Army (RA) Soldier on active duty.  Consequently, there appears to have been a rush or accelerated ruling by the PEB in his case.

3.  The applicant provides copies of Headquarters, U.S. Army Physical Disability Agency (USAPDA), Washington, DC, Orders D254-08, dated 10 September 2008; DD Form 214 (Certificate of Release or Discharge from Active Duty) with an effective date of 18 July 2003; DA Form 199, pages 1-2, dated 19 August 2008, with exhibits (i.e., TDRL packet and TDRL reevaluation, including medical evaluation board (MEBD) proceedings); VA, Durham VA Medical Center (VAMC), Health Summary, page 43, dated 6 September 2005; extract of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), pages 14-17, dated 8 February 2006; extract of Title 38, U.S. Code (USC), section 1118(a); and extract of Air Force Instruction 36-3212 (Physical Evaluation for Retention, Retirement, and Separation), pages 21-22, dated 2 February 2006.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military personnel records show he enlisted in the U.S. Army Reserve (USAR) in the Delayed Entry Program for a period of 8 years on 11 January 1985.  He then enlisted and entered active duty in the RA for a period of 3 years on 31 January 1985.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty (MOS) 19E (Armor Crewman).  The applicant was honorably released from active duty on 29 January 1988 and transferred to the USAR to complete his remaining military service obligation.

2.  The applicant's military personnel records contain an NGB Form 22 (Report of Separation and Record of Service) that shows he enlisted in the Army National Guard of the United States and Army National Guard of the District of Columbia on 8 July 1988.  Item 13 (Primary Specialty Number, Title and Date Awarded) shows he was awarded MOS 94B (Food Service Sergeant) on 20 July 1989. Item 18 (Remarks), in pertinent part, shows the applicant had active duty service from 6 December 1990 to 12 June 1991.  The NGB Form 22 also shows the applicant was honorably discharged on 7 July 1994 in the rank of staff sergeant (SSG)/pay grade E-6 based on expiration of service obligation.  At the time he had completed 6 years of net service this period; 5 months and 8 days of prior RC service; 2 years, 11 months, and 28 days of prior active Federal service; and 9 years, 5 months, and 6 days of total service for pay.

3.  The applicant's military personnel records contain a DA Form 2-1 (Personnel Qualification Record).  Item 5 (Oversea Service), in pertinent part, shows he served in Saudi Arabia for 4 months from 7 February 1991 through 18 May 1991.

4.  In support of his application, the applicant provides the following documents.

	a.  The DA Form 3947 (MEBD Proceedings), dated 6 February 2003, along with the Narrative Summary for Medical Board, dated 21 January 2003, and enclosures show, in pertinent part, the applicant was diagnosed with chronic inflammatory demyelinating radicular neuropathy with an approximate date of origin in January 2001 that was incurred while the applicant was entitled to base pay, the applicant indicated he did not desire to continue on active duty, and he was referred to a PEB.  The findings and recommendation of the MEBD were approved by the approving authority on 6 February 2003, the applicant indicated he had been informed of the approved findings and recommendation of the board, and he acknowledged his agreement with the board's findings and recommendation by placing his signature on the document on 6 February 2003.

	b.  The DA Form 199, dated 14 March 2003, shows an informal PEB convened on 14 March 2003.  The PEB Proceedings Disability Description section describes the applicant's MEBD diagnosis as "chronic inflammatory demyelinating radicular neuropathy with Soldier currently being tapered off the Prednisone.  Soldier is now receiving IV [Intravenous] medications."

		(1)  Based on a review of the medical evidence of record, the PEB concluded that the applicant's medical condition prevented satisfactory performance of duty in his grade and specialty; the PEB found the applicant's condition had not stabilized to the point that a permanent degree of severity could be determined; and therefore, the applicant was placed on the TDRL.

		(2)  Item 8 (The Board Considered the Member's Condition Described in the Records.  Each Disability is Listed Below in descending order of significance), column c (Intentional misconduct, willful neglect or unauthorized absence), contains the entry "N" [No]; column d (While entitled to basic pay (Incurred or aggravated)) contains the entry "Y" [Yes]; column e (In LD [line of duty] in the time of national emergency or after 14 September 1978 (Incurred or aggravated)) contains the entry "Y"; column f (Proximate result of performing duty) contains the entry "Y"; and column g (Recommended disability percentage) contains the entry "30 percent."

		(3)  Based on a review of the medical evidence of record, the PEB found the applicant physically unfit and recommended his placement on the TDRL with reexamination during October 2004.

		(4)  On 28 March 2003, the PEB Liaison Officer (PEBLO) informed the applicant of the findings and recommendation of the PEB and explained to him the result of the findings and recommendation and his legal rights pertaining thereto.  The PEBLO also indicated that he witnessed the applicant's election.

		(5)  On 28 March 2003, the applicant indicated that he concurred with the PEB findings and recommendation, waived a formal hearing of his case, and also placed his signature on the document.

		(6)  The DA Form 199 shows the PEB findings and recommendation were approved for the Secretary of the Army on 28 March 2003.

5.  The applicant's military personnel records contain his DD Form 214 that shows he entered active duty in the RA on 3 January 1995.  Item 18 (Remarks), in pertinent part, shows he served in Southwest Asia from 7 February 1991 to 18 May 1991.  The applicant was retired on 18 July 2003 under the provisions of Army Regulation 635-40, paragraph 4-24b(2), based on temporary disability.  At the time of his retirement the applicant had completed 8 years, 6 months, and 16 days of net active service this period; 3 years, 6 months, and 6 days of total prior active service; 6 years, 5 months, and 16 days of total prior inactive service; and 2 years, 4 months, and 28 days of foreign service.

6.  In support of his application, the applicant provides a DA Form 199, dated 23 May 2005, that shows an informal PEB convened on 23 May 2005.  The PEB Proceedings Disability Description section describes the applicant's MEBD diagnosis as "chronic inflammatory demyelinating radicular neuropathy for which the Soldier was placed on the TDRL in 2003 at 30 percent.  Since being on TDRL the Soldier's symptoms have continued to worsen with waxing and waning symptoms."  This item also shows that, "upon reexamination, it is concluded that your condition as listed above is sufficient evidence of continued physical unfitness.  This condition has not stabilized to the point that a permanent degree of severity can be determined, but remains rated at or above 30 percent.  You are therefore retained on the TDRL."

	a.  Based on a review of the medical evidence of record, the PEB found the applicant physically unfit and recommended that the applicant be retained on the TDRL with reexamination during November 2006.

	b.  The PEB findings and recommendation were approved for the Secretary of the Army on 26 May 2005.

7.  In support of his application, the applicant provides a DA Form 199, dated 11 January 2007, that shows an informal PEB convened on 11 January 2007. The PEB Proceedings Disability Description section describes the applicant's MEBD diagnosis as "chronic inflammatory demyelinating radicular neuropathy for which the Soldier was placed on the TDRL in 2003 at 30 percent.  Since being on TDRL the Soldier's symptoms have continued to worsen with waxing and waning symptoms."  This item also shows that, "upon reexamination, it is concluded that your condition as listed above is sufficient evidence of continued physical unfitness.  This condition has not stabilized to the point that a permanent degree of severity can be determined, but remains rated at or above 30 percent.  You are therefore retained on the TDRL."

	a.  Based on a review of the medical evidence of record, the PEB found the applicant physically unfit and recommended that the applicant be retained on the TDRL with reexamination during March 2008.

	b.  The PEB findings and recommendation were approved for the Secretary of the Army on 16 January 2006 [sic] (i.e., 16 January 2007).

8.  The applicant's military personnel records contain a copy of a DA Form 199 (three pages), dated 19 August 2008, that shows an informal PEB convened on 19 August 2008.  The PEB Proceedings Disability Description section describes the applicant's MEBD Diagnosis as polyneuropathy chronic inflammatory demyelinating.  It further states, "The Soldier was placed on the TDRL in 2003 as an analogous diagnosis to multiple sclerosis.  The Soldier has weakness of both upper and lower extremities and a recent electromyogram (13 August 2008) of the upper and lower extremities was consistent with the established diagnosis of chronic inflammatory demyelination polyneuropathy.  The decreased motor strength will be rated separately.  The Soldier continues on Cellcept and Prednisone."  This item also shows, "these conditions were combined IAW VASRD 4.25 and the Bilateral Factor was applied IAW VASRD 4.26."  This item further shows that "the present PEB rating accurately reflects the current degree of severity of your condition.  The PEB considers you to have stabilized sufficiently for rating purposes and recommends permanent retirement IAW para 7-11a(1), AR 635-40.  You are advised that a member of an armed force may not be required to sign a statement relating to the origin, incurrence, or aggravation of a disease or injury that he/she has."

	a.  Item 8, column c, contains the entry "N"; column d contains the entry "Y"; column e contains the entry "Y"; column f contains the entry "Y"; and column g contains the entry "70 percent."

	b.  Based on a review of the medical evidence of record, the PEB found the applicant physically unfit and recommended permanent disability retirement with a combined rating of 70 percent.

	c.  On 22 August 2008, the PEBLO informed the applicant of the findings and recommendations of the PEB and explained to him the result of the findings and recommendation and his legal rights pertaining thereto.  The PEBLO also indicated that he witnessed the applicant's election.

	d.  On 22 August 2008, the applicant indicated that he concurred with the PEB findings and recommendation, waived a formal hearing of his case, and also placed his signature on the document.

	e.  The DA Form 199 shows the PEB findings and recommendation were approved for the Secretary of the Army on 3 September 2008.

9.  The applicant's military personnel records contain a copy of Headquarters, USAPDA, Washington, DC, Orders D254-08, dated 10 September 2008, that show the applicant was removed from the TDRL on 18 July 2008 because of permanent physical disability and permanently retired on 19 July 2008 with a percentage of disability of 70 percent.  This order shows, in response to the lead line, "Disability is based on injury or disease received in LD as a direct Result of Armed Conflict or caused by an instrumentality of war period as defined by law", the entry, "Not Applicable."  In addition, for the lead line, "Disability resulted from a combat related injury as defined in 26 USC 104 [Title 26, U.S. Code, chapter 104]," the entry, "Not Applicable" is shown.

10.  In further support of his application, the applicant provides the following documents.

	a.  VA, Durham VAMC, Health Summary, page 43, dated 6 September 2005, that provides a summary of the applicant's medical visits and treatment at the VAMC during the period from 26 May 2004 to 10 January 2005.

	b.  Extract of Army Regulation 635-40, pages 14-17, dated 8 February 2006.

		(1)  Paragraph 4-19 (Physical evaluation board decisions - common criteria) shows in subparagraph a (Determinations),"the voting members of a PEB make findings and recommendations in each case on the basis of the instructions set forth in paragraphs b through q, below.  The board decides all questions by majority vote.  All findings must be based on a preponderance of the evidence.  Recommendations must be supported by the findings.  In summary, the board determines the following."  This document also shows that subparagraph c (Was the disability incurred in LD during a time of war or national emergency or incurred in LD after 14 September 1978?) is highlighted in yellow.

		(2)  Subparagraph j (Armed conflict - instrumentality of war) provides that certain advantages accrue to Soldiers who are retired for physical disability and later return to work for the Federal Government when it is determined that the disability for which retired was incurred under specific circumstances.  This subparagraph also provides for a disability which resulted from injury or disease received in LD as a direct result of armed conflict and which itself renders the Soldier unfit.  A disability may be considered a direct result of armed conflict if (a) the disability was incurred while the Soldier was engaged in armed conflict, or in an operation or incident involving armed conflict or the likelihood of armed conflict; while the Soldier was interned as a prisoner of war or detained against his will in the custody of a hostile or belligerent force; or while the Soldier was escaping or attempting to escape from such prisoner of war or detained status; or (b) a direct causal relationship exists between the armed conflict or the incident or operation, and the disability; and (c) the disability is unfitting, was caused by an instrumentality of war, and was incurred in LD during a period of war as defined by law.

	c.  Extract of Title 38, USC, section 1118(a), shows, in pertinent part, the VA is authorized to determine that any diagnosed or undiagnosed illness warrants a presumption of service connection by reason of having a "positive association with exposure to biological, chemical, or other toxic agent, environmental or wartime hazard, or preventive medicine or vaccine known or presumed to be associated with service in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War."  This document also shows that the National Academy of Sciences has completed three reports under the Persian Gulf War Veterans Act and goes on to state, "VA has not established any presumptions of service connection based on those reports."

	d.  Extract of Air Force Instruction 36-3212, dated 2 February 2006, and describes how to retire or discharge Air Force members who are unfit to perform their military duties because of physical disability.  The applicant provides copies of pages 21-22 that are part of chapter 3 (The PEB), section 3B (PEB Findings and Recommendations), and, in pertinent part, paragraph 3.23 (Proximate Result), with the phrase, "this determination is not required for Regular members" highlighted in yellow.

11.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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 or her office, grade, rank, or rating.

	a.  Paragraph 4-10 (The MEBD) of Army Regulation 635-40 provides that medical evaluation boards 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 qualification for retention based on the criteria in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement).  If the MEBD determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

	b.  Paragraph 4-20 (Informal board) of Army Regulation 635-40 provides that each case is first considered by an informal PEB.  This paragraph states, in pertinent part, an informal board must ensure that each case considered is complete and correct.  The rapid processing intended by the use of informal boards must not override the fundamental requirement for detailed and uniform evaluation of each case.  All evidence in the case file must be closely examined and additional evidence obtained, if required.

	c.  Appendix C (Counseling), section C-11 (Rights of retired Soldiers), provides that Soldiers retired for physical disability have the same rights as those retired for years of service.  Possession of DD Form 2 (United States Uniformed Services Identification Card (Retired)) is all that is required for most.  Dependents require DD Form 1173 (Uniformed Services Identification and Privilege Card).  In summary, benefits include (a) commissary, post exchange, and other installation privileges for retiree, spouse, and dependent children (dependency is determined under applicable regulations); (b) medical care for the retiree, spouse, and dependent children, if reasonably available, at any service installation; and (c) Civilian Health and Medical Program of the Uniformed Services (CHAMPUS) (currently designated as TRICARE).  Refer the Soldier to the medical treatment facility advisor (or the installation Retirement Services Officer).  Briefing should include the issue of CHAMPUS [TRICARE] supplemental insurance; and (d) VA hospital treatment and other VA benefits.

	d.  Appendix D (Instructions for DA Form 199) provides for completing the DA Form 199 for informal and formal PEB proceedings.  The instructions for item 8, columns d, e, and f, state "enter "YES" or "NO," whichever is correct, for each disability.  Include disabilities incurred while on active duty or active duty for training and discovered while the Soldier is on the TDRL.  Also include any unfitting disability after the Soldier was placed on the TDRL, as provided in (3)(a) above.  If a Soldier is retained on the TDRL without a change, make no entries."

	e.  The Glossary, Section II (Terms), contains the term "proximate result of performing duty" and states, "a disability may reasonably be assumed to have been the result of, arising from, or connected with active duty, full-time training duty, other full-time duty, or inactive duty training.  All facts, circumstances, and laws on a particular case must be considered."

12.  Title 10, USC, chapter 61, 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.  The USAPDA, under the operational control of the Commander, U.S. Army Human Resources Command, Alexandria, Virginia, is responsible for operating the PDES and executes Secretary of the Army decision-making authority as directed by Congress in Title 10, USC, chapter 10, and in accordance with Department of Defense Directive 1332.18 (Separation or Retirement for Physical Disability) and Army Regulation 635-40.

13.  Title 10, USC, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.

14.  Title 38, USC, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  In addition, the VA may also render a presumption of service connection by reason, in pertinent part, of having a "positive association with exposure to biological, chemical, or other toxic agent, environmental or wartime hazard, or preventive medicine or vaccine known or presumed to be associated with service in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War."

DISCUSSION AND CONCLUSIONS:

1.  The applicant contended, in effect, his records should be corrected to show his disability is based on a disease received in line of duty as a direct result of armed conflict or caused by an instrumentality of war period as defined by law because he served in the Southwest Asia theater of operations from 2 August 1990 to 31 July 1991 and his diagnosis of CIDP is listed on the VA presumption list for the Persian Gulf War; he was unaware that his condition was listed on the Persian Gulf War VA presumption list during the TDRL process; he had no choice but to accept this final ruling of the PEB and sign the DA Form 199 because the decision was made nearly 2 months after his retirement date; and that not accepting the decision meant he would continue without TRICARE medical insurance coverage.  He also contends the PEB marked "Yes" on the DA Form 199, item 8, column f, which indicates "proximate result of performing duty"; however, the correct usage of the "proximate result of performing duty" block is for Army RC Soldiers called to active duty and he was an RA Soldier on active duty.  He continued, therefore there appeared to have been a rush or accelerated ruling by the PEB in his case.

2.  The evidence of record shows an MEBD convened on 6 February 2003, the applicant was diagnosed with chronic inflammatory demyelinating radicular neuropathy, he indicated he did not desire to continue on active duty, and he was referred to a PEB.  The evidence of record also shows the applicant was informed of the approved findings and recommendation of the board and he acknowledged his agreement with the board's findings and recommendation on 6 February 2003.  

3.  The evidence of record shows an informal PEB convened on 14 March 2003, the applicant was diagnosed with chronic inflammatory demyelinating radicular neuropathy, his medical condition prevented satisfactory performance of duty in his grade and specialty, and he was placed on the TDRL.  The evidence of record further shows the applicant as informed of the findings and recommendation of the PEB and he acknowledged that he concurred with the PEB Findings and Recommendation on 28 March 2003.  The evidence of record does not support the applicant's contentions that he had no choice (emphasis added) but to accept this final ruling of the PEB and sign the DA Form 199 and he has provided insufficient evidence to show otherwise..

4.  The evidence of record shows that Soldiers retired for physical disability have the same rights as those retired for years of service that, in pertinent part, includes medical care for the retiree, spouse, and dependent children at any service installation, if reasonably available, and includes TRICARE eligibility.  Thus, the applicant's contention that not accepting the PEB decision meant he would continue without TRICARE medical coverage is not supported by the evidence of record.

5.  The evidence of record shows a PEB reviewed the applicant's medical condition on 23 May 2005 and on 11 January 2007.  The PEB concluded both times the applicant's condition had not stabilized to the point that a permanent degree of severity could be determined, and the applicant was retained on the TDRL.  An informal PEB that convened on 19 August 2008 found the applicant physically unfit for the condition and recommended permanent disability retirement with a combined rating of 70 percent.  Accordingly, the applicant was removed from the TDRL on 18 July 2008 and permanently retired him on 19 July 2008 with a disability of 70 percent.

6.  The evidence of record shows that the governing Army regulatory guidance for the DA Form 199, item 8, column f, instructs to enter the appropriate entry, whichever is correct, for the disability and "include disabilities incurred while on active duty (emphasis added)."  The evidence of record also shows that the Army regulatory guidance contains the term "proximate result of performing duty" and states a disability may reasonably be assumed to have been the result of, arising from, or connected with active duty, full-time training duty, other full-time duty, or inactive duty training.  All facts, circumstances, and laws on a particular case must be considered."  While the applicant provides an Air Force Instruction that defines "proximate result" and indicates, "this determination is not required for Regular members," this Air Force instruction is not applicable in the applicant's case (i.e., an RA active duty Soldier).  Thus, the applicant provides insufficient evidence in support of his contention that the entry in item 8, block f, of the DA Form 199 is in error and he is not entitled to correction of this record.

7.  The evidence of record shows that all of the applicant's medical conditions were fully considered and evaluated under the PDES by the MEBD and PEB beginning on 6 February 2003 and through 19 August 2008.  The evidence of record also shows that the applicant was consistently found physically unfit throughout the PDES process, the informal PEB concluded the applicant's condition stabilized sufficiently for rating purposes and permanent retirement, and the applicant was retired based on permanent physical disability effective 19 July 2008.  The evidence of record further shows that the PDES process spanned a period of more than 5 years in the applicant's case.  Thus, in view of the foregoing, the applicant provides insufficient evidence in support of his contention that there appears to have been a rush or accelerated ruling by the PEB in his case.  Therefore, the applicant is not entitled to correction of his records in this case.

8.  The evidence of record shows that the Army rates only conditions determined to be physically unfitting that were incurred or aggravated during the period of service.  Furthermore, it can rate a condition only to the extent that the condition limits the performance of duty.  The VA (and some other government agencies) on the other hand, provides compensation for disabilities which it determines were incurred in or aggravated by active military service and which impair the individual's industrial or social functioning.  Moreover, the law requires the VA must give the veteran the benefit of any reasonable doubt, which includes (in the applicant's case) those medical conditions the VA authorizes for its Persian Gulf War presumption list.  The fact that the VA (or any other government agency), in its discretion, recognizes a presumptive service connection, is a prerogative exercised within the policies of that agency.

9.  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.

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.



      ____________X_____________
                 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)                                         AR20090000676



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ABCMR Record of Proceedings (cont)                                         AR20080019117



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