BOARD DATE:	  10 August 2010

		DOCKET NUMBER:  AR20090021747 


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, a medical retirement.  He also requests items 23 (Type of Separation), 25 (Separation Authority), 26 (Separation Code), and 28 (Narrative Reason for Separation) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed.

2.  The applicant states:

* his medical condition was not known prior to his enlistment and was directly exacerbated by an active duty foot injury incurred during a training accident, consequently making the condition service connected
* the Department of Veterans Affairs (VA) acknowledges service connection to his medical condition
* physicians and his command were responsible pursuant to Army Regulation 40-501 (Standards of Medical Fitness), paragraphs 3-3 and 
3-4 for convening a medical evaluation board (MEB) in light of the fact that myotonic dystrophy is a condition specifically listed in paragraph 3-30 of the regulation
* his command failed to provide proper counseling during the process, particularly in light of the intense inactivity endured after his injury

3.  The applicant provides eight exhibits outlined on the first page of counsel's undated statement in support of his application.



COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, the applicant's administrative separation be voided and his case be referred to an MEB.

2.  In an undated and unsigned statement, counsel states the applicant's medical condition is service related.  He contends the applicant's myotonic dystrophy should have been reviewed by an MEB or otherwise deemed a service-connected condition because it was significantly exacerbated by a training accident resulting in a foot injury and its aftermath.  Typically, service-connected disabilities of this nature provide cause for medical retirement.  He indicates the applicant was a fully functioning and productive Soldier and never had he shown clear or significant examples of a disqualifying medical condition, but this all changed when he suffered the broken foot during a training exercise.  After surgery and being fitted with a cast, the applicant was placed on a "deadman's profile."  His ability to perform duties and tasks was significantly hampered, he was just existing while in the training holding company, and it was during this period of inactivity and foot pain that his symptoms of myotonic dystrophy began to develop.

3.  Counsel points out myotonic dystrophy is a condition that can remain relatively dormant in a person for more than 50 years, this genetic condition is "set off" by some trigger, and the person may go for many years or even an entire lifetime without suffering a significant deterioration in health.  He goes on to state the applicant first experienced the blindness from migraine headaches, pain, and muscle weakness during sedentary time brought on by the foot injury and its related leg cast.  He also picked up chronic frontal sinusitis during training that caused illness and furthered his sedentary and physically inactive situation.  All this is important because specific factors that can "set off" permanent and incapacitating effects of myotonic dystrophy include injury and immobility.  Counsel references a leading physician and researcher in the field of myotonic dystrophy and concludes that while the applicant did hold the genetic condition, it was events directly attributed to active duty military service that caused the condition to develop and become debilitating.

4.  Counsel points out that the VA granted a combined 60-percent service-connected compensation rating and specifically determined the myotonic dystrophy, as well as migraine headaches and chronic front sinusitis, were service related.  Particularly in light of the combined 60-percent VA rating for a service-connected disability, it is reasonable to state an MEB and a physical evaluation board (PEB) would have reached an equivalent conclusion in terms of medical retirement based on the nexus between the medical conditions and direct military service.

5.  Counsel states that signed agreements should not be a basis for the applicant's discharge, it would be unjust to base the applicant's current separation on the fact that he signed the Entrance Physical Standards Board (EPSBD) report.  Normally paragraph 5-11 of Army Regulation 635-200 (Personnel Separations) affords the opportunity for the Soldier to request that he or she be retained on active duty and the EPSBD was not convened within the 6-month deadline.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U.S. Army Reserve on 9 September 2008 for a period of 8 years.  He was ordered to initial active duty for training (IADT) on 5 January 2009.

2.  Records show the applicant suffered a broken right foot during a training exercise in March 2009.

3.  On 11 June 2009, an EPSBD diagnosed the applicant as having myotonic dystrophy (an existed prior to service (EPTS) disorder) and frontal sinusitis (pending evaluation).  The EPSBD proceedings state the myotonic dystrophy is disqualifying for entry into the Armed Forces under Army Regulation 40-501, paragraph 2-26.   The proceedings also state:

* the applicant was initially seen for complaints of headaches on 20 April 2009
* he also complained of drooping of his left eyelid, tearing in his left eye, slurred speech, numbness in the left side of his face, and tingling in his left arm and leg
* because of his clinical presentation at that time of bilateral facial weakness, slurred speech, hyporeflexia, and what appeared to be bilateral facial weakness, he was referred to the University of Missouri at Columbia (UMC) for evaluation
* his evaluation indicated frontal sinusitis for which he was treated
* his spinal fluid studies were normal
* magnetic resonance imaging scans of the brain showed no abnormalities of brain tissue in the region of the cavernous sinus
* electromyogram showed evidence of myotonic dystrophy
* he also had complained of decreased visual acuity
* the evaluation at UMC indicated a possible nonphysiologic basis
* he has been followed by ophthalmology and they thought that optic neurosis remained in the differential and/or involvement of the optic nerve with his sinusitis
* his headaches at UMC were thought possibly to represent Raeder paratrigeminal syndrome
* his headaches have subsequently improved
* he is being followed at UMC at this time for sinusitis and may require sinus surgery
* he has not been aware of any clinical weakness in his limbs at this time

4.  The EPSBD found the applicant medically unfit for enlistment in accordance with current medical fitness standards and determined that his condition was EPTS.  The EPSBD recommended the applicant should not be retained under the above military disqualifying feature because of his muscular dystrophy and should be separated from the Armed Forces as his sinusitis is adequately treated.  On 16 July 2009, the applicant concurred with the proceedings and requested to be discharged from the U.S. Army without delay.  The unit commander recommended discharge and the discharge authority directed that the applicant be discharged from the Army.

5.  On 21 July 2009, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 5-11, due to failure to meet medical/physical/procurement standards.  He had served 6 months and 17 days of creditable active service.

6.  Item 23 of the applicant's DD Form 214 shows the entry "discharge."  Item 24 of his DD Form 214 shows the entry "honorable."  Item 25 of his DD Form 214 shows the entry "Army Regulation 635-200, paragraph 5-11."  Item 26 of his DD Form 214 shows the entry "JFW."  Item 28 of his DD Form 214 shows the entry "failed medical/physical/procurement standards."

7.  The applicant provided VA documentation which shows service connection was granted for:

* migraine headaches (30 percent)
* myotonic dystrophy, left hand (10 percent)
* myotonic dystrophy, right hand (10 percent)
* chronic frontal sinusitis (10 percent)
* myotonic dystrophy, slurred speech (10 percent)

8.  Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel.  Paragraph 5-11 specifically provides that Soldiers who were not medically qualified under procurement medical fitness standards when accepted for enlistment or who became medically disqualified under these standards prior to entrance on active duty or active duty training or initial entry training will be separated.  A medical proceeding, regardless of the date completed, must establish that a medical condition was identified by appropriate medical authority within 6 months of the Soldier's initial entrance on active duty, that the condition would have permanently or temporarily disqualified the Soldier for entry into the military service had it been detected at that time, and the medical condition does not disqualify the Soldier from retention in the service under the provisions of Army Regulation 40-501, chapter 3.  The characterization of service for Soldiers separated under this provision of regulation will normally be honorable, but will be uncharacterized if the Soldier is in an entry-level status.  For Regular Army Soldiers, entry-level status is the first 180 days of continuous active duty.

9.  Army Regulation 635-40 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 purpose of his employment on active duty.  According to accepted medical principles, certain abnormalities and residual conditions exist that, when discovered, lead to the conclusion that they must have existed or have started before the individual entered the military service.

10.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has an impairment rated at least 30-percent disabling.

11.  Chapter 2 of Army Regulation 40-501 states that enlisted Soldiers identified within the first 6 months of active duty with a condition that is EPTS that does not meet the standards of chapter 2 may be separated (or receive a waiver to remain on active duty) following an evaluation by an EPSBD, in accordance with Army Regulation 635-200, chapter 5.  Paragraph 2-2(c)(2)(b) states that enlisted Soldiers identified within the first 6 months of active duty with a condition that is EPTS that does not meet the standards of chapter 2 or chapter 3 must be evaluated by an MEB.  The Soldier will then be referred to a PEB unless the Soldier waives his or her right to the PEB in accordance with Army Regulation 
635-40.

12.  Paragraph 2-26i of Army Regulation 40-501 states that current or a history of paralysis, weakness, lack of coordination, chronic pain, sensory disturbance, or other specified paralytic syndromes are disqualifying conditions for enlistment, appointment, and induction.

13.  Paragraph 3-30 of Army Regulation 40-501 states that all primary muscle disorders including facioscapulohumeral dystrophy, limb girdle dystrophy, and myotonic dystrophy characterized by progressive weakness and atrophy are causes for referral to an MEB.

14.  Army Regulation 635-5-1 (Separation Program Designator Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons.  The regulation states the reason for discharge based on separation code JFW is failure to meet procurement medical fitness standards and the regulatory authority is Army Regulation 635-200, paragraph 5-11.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was diagnosed during IADT as having myotonic dystrophy (a common form of muscular dystrophy).  Counsel argues the applicant was asymptomatic prior to service and that inactivity due to an injured foot "triggered" the onset of symptoms.  Although having his right foot in a cast due to fractured metatarsals could result in the appearance of weakness in the inactive muscles, the applicant's myotonic dystrophy symptoms were mainly facial and left-sided arm and leg.  The right foot cast did not "trigger" the symptoms and even if the right ankle muscles were weakened by inactivity, this would not, even in the face of myotonic dystrophy, represent a permanent aggravation.

2.  The evidence of record does not support counsel's contention that the EPSBD was not convened in a timely manner (i.e., within 6 months on active duty).  The EPSBD convened on 17 June 2009, 5 months and 13 days after the applicant's entry on active duty (5 January 2009).

3.  Counsel suggests that because the VA granted service connection for sinusitis and migraine headaches, these maladies should be considered in current deliberations.  However, there is no evidence of record which shows either sinusitis or migraine headaches were unfitting when the applicant was separated.

4.  Counsel's contention the applicant's myotonic dystrophy should have been reviewed by an MEB has merit.  Although the applicant was entitled by regulation to an MEB, it appears he did not suffer an injustice (lack of a medical retirement) due to this administrative irregularity.  The EPSBD medical evaluation was completed by a neurologist and it was the neurologist's responsibility to determine if the applicant was permanently harmed by military service.  The EPSBD found the applicant's unfitting condition to be EPTS and to be not permanently service aggravated.  Therefore, this was a harmless error and there is no basis for granting an MEB or medical retirement.

5.  The applicant's type of separation, separation authority, separation code, and narrative reason for separation were administratively correct and in conformance with applicable regulations at the time of his separation.

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)                                         AR20090021747



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ABCMR Record of Proceedings (cont)                                         AR20090021747



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