IN THE CASE OF:	  

		BOARD DATE:	  5 August 2010

		DOCKET NUMBER:  AR20100006948 


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 that his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected by changing:

* Item 4a from staff sergeant (SSG) to sergeant first class (SFC)
* Item 4b from E6 to E7
* Item 19a from an address in FL to an address in NC
* Item 28 from Disability, temporary to Permanent disability, caused by an instrumentality of war and incurred in line of duty (LOD) during a war period as defined by law

2.  The applicant states that while in the Special Forces he had a parachute accident in which he tumbled and spun violently while descending.  His teammates commented on his bloodshot eyes after he landed.  Shortly thereafter he experienced problems with his vision.

3.  He was medically boarded for his vision problems.  However, nowhere in his medical board does it mention that his disability, ocular myasthenia gravis, was caused by his parachute accident.

4.  In November 1998, he was discharged and placed on the Temporary Disability Retired List (TDRL), he was promoted to pay grade E-7 in January 1999, and he was permanently retired due to physical disability in September 2001.

5.  The applicant provides excerpts from his military records, including the Calendar Year (CY) SFC Selection Board Results which contains his name.

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’s military records show he enlisted in the Regular Army on
3 May 1991 with 3 years and 4 months of prior active service.  He served as a Special Forces Communications Sergeant in pay grade E-6.

3.  On 20 March 1998, a Medical Evaluation Board (MEB) convened and determined the applicant was medically disqualified due to ocular myasthenia gravis.  The MEB's narrative summary (NARSUM) does not mention that the applicant's condition was caused by a parachute accident.

4.  The applicant's first Physical Evaluation Board (PEB) is not contained in the available records.  However, the applicant was honorably retired on 16 November 1998 and placed on the TDRL.  The DD Form 214 he was issued shows:

* Item 4a (Grade, Rate or Rank) SSG
* Item 4b (Pay Grade) E6 
* Item 19a (Mailing Address After Separation) an address in FL 
* Item 28 (Narrative Reason for Separation) Disability, Temporary 

5.  The applicant was promoted to pay grade E-7 effective 1 January 1999 by Order Number 351-34 dated 17 December 1998.

6.  On 24 July 2001, a TDRL MEB NARSUM was prepared.  No mention was made of the applicant's disability being caused by a parachute accident in this document.
7.  On 24 September 2001, the applicant was removed from the TDRL and placed on the Retired List for physical unfitness.  The applicant's orders show him as a SSG; his address in TN; and an entry of "Not Applicable" was entered on both "Disability is based on injury or disease received in LOD as a direct Result of Armed Conflict or caused by an instrumentality of war and incurred in LOD during a war period as defined by law" and "Disability resulted from a combat related injury as defined in 26 USC 104."

8.  Army Regulation 635-40 defines instrumentality of war as a device designed primarily for military service and intended for use in such service at the time of the occurrence of the injury.  It may also be a device not designed primarily for military service if use of or occurrence involving such a device subjects the individual to a hazard peculiar to military service.  This use or occurrence differs from the use or occurrence under similar circumstances in civilian pursuits.  There must be a direct causal relationship between the use of the instrumentality of war and the disability must be incurred incident to a hazard or risk of the service.

9.  Department of Defense Directive (DoDD) 1332.18, Part 6, TDRL Management, states that service members shall be placed on the TDRL when they would be qualified for permanent disability retirement but for the fact that the member’s disability is not determined to be of a permanent nature and stable.

10.  DoDD 1332.18, Part 7, Final Disposition, paragraph E, Disposition of Unfit Members, provides for the permanent disability retirement of members who have at least 20 years of active service or whose total disability rating is at least 30 percent.

11.  Myasthenia gravis causes weakness of the voluntary (skeletal) muscles. These are the muscles that create movement and are normally under your conscious control.  The involuntary muscles, on the other hand, are not under conscious control (such as the muscles of your heart and many other internal organs).  In myasthenia gravis, weakness occurs because the nerve that activates a particular muscle does a poor job of stimulating that muscle.  This problem occurs because immune cells (which normally attack foreign invaders) target and attack the body's own healthy cells.  This is known as an autoimmune response.  This autoimmune response produces antibodies that block the muscle cells from receiving messages (neurotransmitters) from the nerve cell.  The cause of myasthenia gravis is unknown.  In some cases, myasthenia gravis may be associated with tumors of the thymus (an organ of the immune system).  Patients with myasthenia gravis have a higher risk of having other autoimmune disorders, such as thyrotoxiconis, rheumatoid arthritis, and systemic lupus erythematosus (lupus).
12.  Army Regulation 635–5 (Separation Documents) states that information for completion of Item 19 of a DD Form 214, MAILING ADDRESS AFTER SEPARATION and NEAREST RELATIVE, will be provided by the Soldier.

13.  Title 10, U.S. Code, section 1372, states any member of an armed force whose name is placed on the TDRL under section 1202 or 1205 of this title is entitled to the permanent Regular or Reserve grade to which he would have been promoted had it not been for the physical disability for which he is retired and which was found to exist as a result of a physical examination.

DISCUSSION AND CONCLUSIONS:

1.  While the applicant may have had a parachute accident as he describes, there is no evidence or indication that this accident caused his myasthenia gravis.  To the contrary, it would appear that this condition is an autoimmune response and, therefore, not caused by a trauma.  As such, there is no evidence to show the applicant's disability was caused by an instrumentality of war and incurred in LOD during a war period as defined by law.

2.  The applicant was not retired from the TDRL until almost 3 years after he was placed on the TDRL.  As such, the applicant's DD Form 214 properly shows he was placed on the TDRL.  The applicant has not provided sufficient evidence to change his DD Form 214 to show he was separated from active duty due to a permanent disability.

3.  The applicant has not submitted any evidence to show he did not move to the FL address that is listed on his DD Form 214 after he was retired.  It is noted that this entry is completed based on information provided by the separating Soldier.  As such, there is insufficient evidence to change this address.

4.  While the applicant was promoted to SFC, pay grade E-7, his promotion occurred after he was retired from active duty.  As such, his DD Form 214 correctly shows his rank and grade as SSG/pay grade E-6.

5.  However, Title 10, U.S. Code, section 1372, states any member of an armed force whose name is placed on the TDRL is entitled to the permanent Regular or Reserve grade to which he would have been promoted had it not been for the physical disability for which he is retired and which was found to exist as a result of a physical examination.  The applicant had been selected for promotion by the FY 1998 SFC Selection Board.  As such, the applicant was entitled, as an operation of law, to be placed on the TDRL and the Retired List in pay grade of
E-7.  It would now be appropriate to correct the applicant's records to reflect his proper pay grade and rank.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ____X___  _____X__  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

* Showing he was placed on the TDRL on 17 November 1998 in pay grade E-7
* Showing he was placed on the Retired List on 25 November 2001 in pay grade E-7
* Paying him the difference in pay between pay grade E-6 and E-7 from the date of placement on the TDRL

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to changing the rank, pay grade, mailing address after separation, and narrative reason for separation on the applicant's DD Form 214.  




      _______ _   _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)                                         AR20100006948



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ABCMR Record of Proceedings (cont)                                         AR20100006948



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