IN THE CASE OF:	  

		BOARD DATE:	    22 July 2010

		DOCKET NUMBER:  AR20090020573 


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 previous request to have his records corrected to show he was retired by reason of physical disability in 1992.

2.  The applicant states, in effect, he should not be held accountable for not filing his original application within the 3 years filing requirement.  He notes he was not formally diagnosed until March 2008 and did not know what was wrong with him.  He states “timely filing was not an issue” because his condition went undiagnosed until after his 1996 discharge from the United States Army Reserve (USAR).

3.  He states a separation physical was not an option for him during the period in question because he was on a compassionate temporary assignment to a Military Entrance and Processing Station and does not recall being offered the opportunity to undergo a physical examination.  He also notes if he were given the option for a physical he may have declined it because one of his noncommissioned officers told him to not worry about it.

4.  The applicant states his enlistment in the National Guard was done according to regulation and his health was reported to the best of his knowledge.  He states he was unaware of his mental health issues and their relevance to him because he was not a doctor.  He states he was Soldier and so just moved on in spite of his mental and physical issues and was not diagnosed with severe depression until a later date.  He also states he was released from his Reserve unit because he could not do his work and was advised to “quit” by his unit because of his depression and physical pains.  He states he simply did what he was told.
5.  The applicant recounts his diagnosis and notes the progression of the disease could be traced back to approximately 1989 to 1994 and would be consistent with a Gulf War Illness (GWI) undiagnosed illness.  He notes Soldiers with multiple sclerosis (MS) while on active duty are medically retired and contends had he been properly diagnosed while on active duty he would have been medically retired.

6.  The applicant maintains the center of his situation is due to the negligence of many doctors at the Department of Veterans Affairs (VA) and while on active duty.  He states he is only asking that we make this right and correct his records to show he was medically retired.

7.  In a subsequent statement the applicant indicates his MS was a direct result of the environmental exposures during the Gulf War.

8.  The applicant provides the following:

   a.  A 14 September 2009 statement from his Primary Care Physician stating the applicant’s Board of Veterans Appeal docket should be advanced because of his declining health.  She noted the applicant’s prognosis is not good.

   b.  An undated VA Form 21-526 (Veteran’s Application for Compensation or Pension) on which is highlighted a statement by the applicant that he suffers from memory loss, headaches, muscle and joint problems, depression, diarrhea, nausea, vomiting, shakes, night sweats, sleep disorders, irritability.  He noted the symptoms were under the umbrella of Gulf War Syndrome.

   c.  A 24 July 1997 letter addressed to “Dear Gulf War Veteran” encouraging him to enroll in the Department of Defense Comprehensive Clinical Evaluation Program and that if he has health concerns he should contact his closest military or VA treatment facility.

   d.  A 8 July 1998 letter from the VA informing the applicant they were unable to locate his military medical records for the period 20 September 1988 to 
25 August 1992.

   e.  A copy of an internet article “Multiple Sclerosis: How the Disease Progresses.”

   f.  A second letter from his Primary Care Physician, dated 16 November 2009. 



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 AR2009001556, on 
16 June 2009.

2.  The documents submitted by the applicant with his request for reconsideration were not previously seen by the Board and as such constitute new evidence warranting consideration.

3.  As noted in the Board’s original deliberation, the applicant served on active duty as a Regular Army Soldier between 13 November 1986 and 25 August 1992 when he was honorably discharged by reason of dependency.  He subsequently served briefly in the Oklahoma Army National Guard before enlisting in the USAR in February 1995.  He was released from his USAR Troop Program Unit in March 1996 as an unsatisfactory participant for failing to attend unit assemblies.

4.  In the applicant’s original request he submitted documents indicating he was diagnosed with bipolar disorder and PTSD in November 1999 and that he was diagnosed with MS in February 2008.  

5.  Documents included in the applicant’s available records indicate as of March 2009 the applicant had a combined disability rating of 90 percent from the VA, including a 70 percent rating for MS.  The applicant also indicated he was pending a 100 percent rating by the VA.

6.  There is no evidence in available records or provided by the applicant that he was unable to perform his military duties as a result of any medical conditions or difficulties.

7.  The undated VA Form 21-526 appears to have been completed by the applicant and notes no medical treatment while in the military but does note he was hospitalized in Dallas, Texas between 14 and 19 September 1995.

8.  On the internet article provided by the applicant the following statement was highlighted:

Primary-progressive MS:  characterized by a gradual progression of disability, without any obvious relapses and remissions.  This form of disease occurs in just 15% of all people with MS, but it is the most common type of MS in people who develop the disease after the age of 40.  

9.  The applicant’s records indicate he was born in 1968.

10.  The statements submitted by the applicant, which were authored by his primary care specialist, again confirm the applicant is suffering from MS.  In one of the statements the primary care physician states in her opinion had the applicant “been diagnosed properly while still on active duty in the Army, he would have in fact been medically retired at that time.”

11.  Army Regulation 635-40 (Physical Disability) states:

   a.  the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank or rating.

	b.  disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of physical disability incurred or aggravated in service.

12.  Title 38, U.S. Code, sections 1110 and 1131, notes the VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  A common misconception is that veterans can receive both a military retirement for physical unfitness and a VA disability pension.  By law, a veteran can normally be compensated only once for a disability.  If a veteran is receiving a VA disability pension and the ABCMR corrects the records to show that a veteran was retired for physical unfitness, the veteran would have to choose between the VA pension and military retirement.

DISCUSSION AND CONCLUSIONS:

1.  The new evidence submitted by the applicant once again confirms he is suffering from MS.  The evidence does not, however, show the applicant was unable to perform any of his military duties because of any illnesses that have subsequently been determined by the VA to have been incurred as a result of his military service.  




2.  Even though the applicant’s primary care physician contends that had the applicant “been diagnosed properly while still on active duty in the Army” he would have been medically retired, there is no evidence indicating there was any basis for such a diagnosis at that time.  There is no evidence the applicant’s military career was interrupted by any unfitting medical conditions and as a result there would have been no basis for processing the applicant via the Army disability system when he was discharged from active duty in 1992 or in 1995 when he was released from the USAR.

3.  The applicant’s argument that he was told to “quit” the USAR because of his inability to do is work is not supported by any evidence of record.

4.  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 the aforementioned requirement.  As such, there continues to be no basis to correct the applicant’s record to show he was retired by reason of physical disability

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 AR20090001556, dated 16 June 2009.



      __________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)                                         AR20090020573



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ABCMR Record of Proceedings (cont)                                         AR20090020573



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