IN THE CASE OF:	  

		BOARD DATE:	       24 February 2009

		DOCKET NUMBER:  AR20090000869 


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 his earlier request for correction of his records to show he was placed on the Retired List for physical unfitness. 

2.  The applicant states that his final physical evaluation board’s (PEB’s) findings and recommendations were inconsistent with his condition and that since his discharge, his medical condition has gotten worse and that he is now in constant pain.  

3.  The applicant provides the following additional documentary evidence in support of his application:

	a.  Self-authored statement, dated 10 January 2009.

	b.  DA Forms 3349 (Physical Profile), dated 17 May 1997 and 31 December 1991.

	c.  Handout describing Hepatitis C (HCV) among African-Americans.

	d.  Medical examination reports, dated 30 September 2008 and 7 October 2008, from the American Health Network.  

	e.  Department of Veterans Affairs (DVA) statement of patient treatment, dated 28 August 2000.

	f.  DVA progress notes, dated 18 and 21 August 2008, 17 October 2008,        6 November 2008, and 15 December 2008.

	g.  DVA Medical Center Radiology Report, dated 18 July 2008.  

	h.  Martin Army Community Hospital, Fort Benning, Georgia, Physical Therapy Consult, dated 6 February 2002.  

	i.  DVA Medication and Radiology Report, dated 28 July 2008.  

	j.  DVA Consult Requests, dated 3 July 2008 and 21 November 2008. 

	k.  Physical therapy discharge summary report, dated 20 November 2008.  

	l.  Miscellaneous other individual medical consults, reports, notes, medication order, and doctors opinions, dated on various dates in 2008. 

	m.  Gastroenterology progress notes, dated 17 January 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 AR20080013150, on 13 November 2008.

2.  The applicant submitted a self-authored statement, dated 10 January 2009, and several medical documents, reports, notes, and examinations, through the DVA and/or civilian medical providers, dated on miscellaneous dates in 2008, which were not previously reviewed by the ABCMR; therefore, they are considered new evidence and as such warrant consideration by the Board.

3.  The applicant's records show he initially enlisted in the Regular Army on 19 April 1971.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 36K (Wireman).  He was honorably separated and transferred to the U.S. Army Reserve (USAR) Control Group on 21 November 1972.  He further executed three 6-year reenlistments in the USAR on 26 January 1977, 5 December 1982, and 19 November 1988.  

4.  On 15 January 1991, the applicant was ordered to active duty as a member of his Reserve unit in support of Operations Desert Shield/Storm and subsequently served in Southwest Asia from 13 February 1991 to 16 September 1991.  He was honorably separated and transferred to his USAR unit on 28 April 1992.
5.  On 9 September 1996, the applicant was ordered to active duty for a period of 270 days in support of Operation Joint Endeavor in MOS 88H (Cargo Specialist). However, upon his return to Fort Benning, Georgia, to be processed for release from active duty, a medical condition was found that required follow-up medical care.  The facts and circumstances surrounding this medical condition are not available for review with this case.

6.  On 30 May 1997, the authority that ordered the applicant to active duty was changed to Title 10, U.S. Code, section 12301, based on his voluntary request to remain on active duty to resolve his medical condition.

7.  On 17 November 1997, the applicant was issued a physical profile for mild degenerative arthritis (hips) and chronic knee pain.

8.  On 17 December 1998, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of military Justice for various infractions.  His punishment consisted of reduction to sergeant (SGT)/E-5 (suspended until 17 June 1999).  

9.  On 22 June 1999, the suspension of the punishment of reduction to SGT/E-5 imposed on 17 December 1998 was vacated.  The vacation was based on his offense of, on or about 18 January 1999, at Fort Benning, Georgia, physically controlling a passenger car while under the influence of alcohol and in a reckless manner by excessive speed.  

10.  On 30 April 1999, a medical evaluation board (MEB) convened at Fort Benning, Georgia, to evaluate the applicant’s medical condition.  The MEB determined that the applicant was medically unfit for duty due to Hepatitis B and C with moderate steatosis, vocal cord dysplasia status post removal of polyps, left shoulder impingement syndrome, degenerative joint disease in the hips, degenerative joint disease in the left knee, and status post bunionectomy of the right foot.  The MEB recommended the applicant be referred to a PEB.

11.  On 7 May 1999, the applicant indicated that he did not agree with the MEB's findings and recommendations and submitted an appeal.  A copy of his appeal is not available for review with this case.  Additionally, he indicated that he did not desire to continue on active duty.

12.  On 10 May 1999, the MEB considered the applicant's appeal.  However, it affirmed its original findings and recommendations.


13.  On 17 May 1999, an informal PEB convened at Fort Sam Houston, Texas (TX), and after a review of the objective medical evidence of record, the PEB found that the applicant’s medical and physical impairment prevented reasonable performance of duties required by his grade and military specialty due to chronic active Hepatitis secondary to chronic Hepatitis B and C virus manifested by fatigue, and bilateral hip, left knee, and left shoulder pain.  He was rated at 30 percent under Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) codes 7399 and 7345 (Hepatitis) and at 20 percent under the VASRD codes 5299 and 5003 (hip, knee, and shoulder pain).  The PEB found the applicant physically unfit for military service and recommended placing him on the Temporary Disability Retirement List (TDRL) with a combined rating of 40 percent and with a reexamination on 1 June 2000.  The applicant concurred with the PEB’s findings and recommendations.  

14.  On 16 August 1999, Headquarters, U.S. Army Infantry Center, Fort Benning, Georgia, published Orders 228-2205, releasing the applicant from the Army effective 15 September 1999 by reason of physical disability and placing him on the TDRL in the grade of SGT/E-5 effective 16 September 1999.

15.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was retired by reason of temporary physical disability in accordance with paragraph 4-24B(2) of Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation).  This form also shows he completed a total of 6 years, 2 months, and 5 days of active Federal service.

16.  On 28 September 2000, an informal TDRL PEB convened at Fort Sam Houston, TX, and determined that based on the review of the TDRL examination, the applicant's impairment had not sufficiently stabilized to permit a final adjudication at the time.  The PEB recommended the applicant retained on the TDRL with a reexamination in October 2001.

17.  On 19 September 2001, an informal TDRL PEB convened at Fort Sam Houston, TX, and determined that based on the review of the TDRL examination, the applicant's impairment had not sufficiently stabilized to permit a final adjudication at the time.  The PEB recommended the applicant retained on the TDRL with a reexamination in October 2002.

18.  On 14 February 2003, a periodic TDRL reevaluation was completed and noted that the applicant complained of a mild fatigue and decreased energy and that he had discontinued the Interferon treatment.  His Hepatitis B had resolved.  During the TDRL examination, his left shoulder, hips, and joints were also examined.  He was diagnosed with Hepatitis C, tendinitis of the left shoulder, degenerative joint disease of the hips, and early degenerative changes of the left knee.  

19.  On 25 March 2003, an informal TDRL PEB convened at Fort Sam Houston, TX, and found the applicant unfit for slight, but constant joint pain and Hepatitis.  He was rated at 10 percent for his joint pain and zero percent for Hepatitis, for a combined rating of 10 percent.  The TDRL PEB recommended the applicant be discharged with severance pay.  The applicant did not concur and demanded a formal hearing.

20.  On 7 May 2003, a formal PEB convened at Fort Sam Houston, TX, and based on review of the TDRL examination and a reevaluation of available medical records and sworn testimony by the applicant, the PEB found the applicant remained unfit to reasonably perform the duties required by his previous grade and military specialty; however, the PEB also found the applicant's condition at the time sufficiently stable for final adjudication.  The PEB rated him at 10 percent for slight and constant bilateral hip, left knee, and left shoulder pain; and increased his rating for Hepatitis to 10 percent (Hepatitis B was resolved; but Hepatitis C was not treated at the time due to applicant's use of alcohol), for a combined rating of 20 percent.  The PEB again recommended his discharge with severance pay.  The applicant did not concur again and demanded another formal hearing and provided statements regarding the status of his Hepatitis in 2001.

21.  The PEB reconsidered the applicant’s case with the evidence and/or rebuttal.  However, the PEB reaffirmed its original findings and recommendations.  As such the applicant was removed from the TDRL on 23 June 2003 with a combined disability rating of 20 percent.  

22.  In his self-authored statement, dated 10 January 2009, the applicant states that his condition has gotten worse and that he is in constant pain.  He must wear a prosthetic on his hands, "arms in his shoes," and a night splint when he sleeps.  He also uses a cane because of arthritis in his hips and osteoarthritis in his knees.  He adds that as he stated before, he was on Interferon therapy treatment for over a year at Fort Benning, Georgia and also received treatment at the VA hospital, but neither worked.  He adds that everybody agrees that Interferon only works for 25 percent to 30 percent of African-Americans with genotype 1, like himself.  He further adds that doctors recommended that he should not try the Interferon treatment again because of its unlikely success and serious complications.  


23.  The applicant submitted several medical documents, reports, notes, and examinations, through the VA and/or civilian providers, dated on miscellaneous dates in 2008 that show he was diagnosed with osteoarthritis, cervical degenerative disc disease with elements of radicular pain and possible radiculopathy most likely in a C7 distribution.  

24.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  

25.  Title 10, United States Code (USC), 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.  Additionally, 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 rating of at least 30 percent.

26.  Title 38, USC, sections 310 and 331, permits DVA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The DVA, however, is not required by law to determine medical unfitness for further military service.  

27.  VASRD Code 7345, Hepatitis, Infectious gives a percentage rating of 30 percent when there is minimal liver damage with associated fatigue, anxiety, and gastrointestinal disturbance of lesser degree and frequency but necessitating dietary restriction or other therapeutic measures.  A percentage rating of 10 percent is given when there is a demonstrable liver damage with mild gastrointestinal disturbance.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show he was placed on the Retired List for physical unfitness.

2.  The applicant’s medical documents, reports, notes, and examinations, through the DVA and/or civilian providers were carefully considered.  Additionally, his recent (2008) visits to the DVA/civilian medical providers that subsequently diagnosed him with various medical conditions were also noted.  However, when the PEB convened, it evaluated the applicant’s two conditions of Hepatitis and joint pain at the time in relationship to his ability to perform the duties required of his rank and specialty.  The PEB accordingly rated him at a 20 percent combined disability rating and recommended placing him on the TDRL.

3.  The purpose of a TDRL PEB is to place a Soldier in a temporary disability status to allow a medical condition to stabilize.  After he underwent a TDRL PEB, the applicant was afforded every opportunity for evaluation of his medical condition, personal appearance, and rebuttal statements on his own behalf.  The TDRL PEB ultimately determined that the applicant’s condition had improved since his placement on the TDRL and recommended the applicant be discharged with entitlement to severance pay.  There is no evidence that the applicant was improperly rated for his two conditions or that he was physically unfit for any other medical condition which was physically unfitting at the time.  

4.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Therefore, he is not entitled to relief.

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 to amend the decision of the ABCMR set forth in Docket Number AR20080013150, dated 13 November 2008.


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      _______ _   _______   ___
               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)                                         AR20090000869



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ABCMR Record of Proceedings (cont)                                         AR20090000869



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