IN THE CASE OF:	  

		BOARD DATE:	  23 November 2010

		DOCKET NUMBER:  AR20100011620 


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 a medical retirement.

2.  The applicant states he was diagnosed with cellulitis and vasculitis in the feet, thrombocythemia, thrombocytosis, deep vein thrombosis (DVT) of the right leg, and Gulf War Syndrome.  He also states he has a Line of Duty for illness in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 5 which specifies that when a Soldier is returned to duty and is incapable of satisfactorily performing his primary military occupational specialty (PMOS) because of a disability action should be initiated to refer the Soldier to the physical disability evaluation system (PDES) for reevaluation.  Instead of following this process his unit discharged him.

3.  He provides:

* DD Form 4 (Enlistment Contract - Armed Forces of the United States)
* DA Form 2-1 (Personnel Qualification Record - Part II)
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 1972
* DA 2173 (Statement of Medical Examination and Duty Status)
* Application for Retention Memorandum
* Medical Record - Nursing Discharge Summary
* Inpatient Treatment Record Cover Sheet
* Medical Evaluation Board (MEB), dated 1992 
* Physical Evaluation Board (PEB), dated 1992
* DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 1993 and 2006
* 15-Year Policy Memorandum
* Physical Profile, dated 2004 and 2007
* MEB and PEB, dated 2007
* Physical Profile, dated 2009
* Summary of MOS/Medical Retention Board (MMRB) Proceedings, dated 2009
* Notification of Medical Disqualification, dated 2009
* Commander's Performance Statement on the applicant
* Medical Disqualification Disposition Election
* DA Form 4187 (Personnel Action)
* Chronological Statement of Retirement Points
* Request for 15-Year Memorandum
* USAR Discharge Orders, dated 2009
* Letter from 87th U.S. Army Reserve (USAR) Support Command
* Department of Veterans Affairs diagnosis and Progress Notes
* List of the applicant's current medications
* Electronic Accounting of Disclosure

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 11 December 1949.  He was inducted into the Army of the United States on 27 July 1970.  He completed training and he was awarded PMOS 76Y (Armorer Supply Unit Specialist).  He was released from active duty (REFRAD) on 4 February 1972 and transferred to the USAR Control Group (Annual Training).  He reenlisted in the USAR on 30 June 1976.  He completed training and was awarded PMOS 92A (Automated Logistical Specialist).  

2.  He entered active duty on 14 July 1991 in support of Operation Desert Shield/Storm.

3.  A New Complete Physical Examination, dated 12 June 1992, shows he was referred for follow-up for his thrombocytosis prior to separation from active duty.  

4.  The term "thrombocythemia" is preferred when the cause of a high platelet count is not known.  The condition is then called primary or essential thrombocythemia.  This condition occurs if faulty cells in the bone marrow make too many platelets.  Bone marrow is the sponge-like tissue inside the bones.  It contains stem cells that develop into red blood cells, white blood cells, or platelets.  What causes the bone marrow to make too many platelets often is not known.  With primary thrombocythemia, a high platelet count may occur alone or with other blood cell disorders.  The platelet count can range from 500,000 platelets per microliter of blood to more than 1 million platelets per microliter of blood.  This condition is not common.  

5.  When another disease or condition causes a high platelet count, the term "thrombocytosis" is preferred.  This condition often is called secondary or reactive thrombocytosis.  In this condition, the platelet count usually is fewer than one million platelets per microliter of blood.  Secondary thrombocytosis is more common than primary thrombocythemia.  Often, a high platelet count does not cause signs or symptoms.  Rarely, serious or life-threatening symptoms can develop, such as blood clots and bleeding.  These symptoms mostly occur in people who have primary thrombocythemia.  U.S. Department of Health & Human Services.

6.  A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 23 July 1992, shows he was seen at the Sabah Hospital in Kuwait on 23 May 1992 after being diagnosed with thrombocytosis.  The diagnosis was found to be in the Line of Duty.  He underwent a bone marrow biopsy on 12 June 1992.

7.  On an unspecified date, an MEB convened and considered the applicant's diagnosis of thrombocythemia.  The MEB recommended he be referred to a PEB.  

8.  On 10 December 1992, an informal PEB convened and considered the applicant's diagnosis.  The PEB found him fit for continued military service and recommended that he be returned to duty.  On 21 December 1992, he concurred with the findings and recommendation of the PEB and waived his right to a formal hearing.  The findings and recommendation of the PEB were approved on 30 December 1992.  

9.  He was honorably REFRAD on 15 January 1993 and transferred to the Individual Ready Reserve (IRR).

10.  On 10 August 2004, he was assigned a temporary profile of 2 for a platelet disorder.  His assignment limitations were:  no running, biking, or swimming, and that he be allowed to walk for the Army Physical Fitness Test (APFT).  

11.  He was ordered to active duty in support of Operation Enduring Freedom and entered active duty on 2 October 2005.  He was honorably REFRAD on 14 January 2006 and transferred to the IRR.

12.  On 12 October 2006, he was assigned a permanent profile of 311111 for anticoagulation (blood thinning) therapy status post DVT, and Thrombocytosis Vera (excess platelets) and an MEB/PEB was recommended.  His assignment limitations were:  no running and biking, and that he be allowed to walk for the APFT. 

13.  On 19 October 2006, he was advised he was disqualified for retention in the USAR based on one or more medical conditions.  He was also advised he could elect to be transferred to the Retired Reserve, be discharged, or be considered by a Non-Duty Related PEB.

14.  On 13 March 2007, he was assigned a permanent profile of 311111 for chronic blood thinning medicine due to increased platelets/blood clots of the leg and an MEB/PEB was recommended.  His assignment limitations were:  no running and biking, he was allowed to walk for the APFT, and he was required to have access to a medical facility for monthly blood tests. 

15.  On 21 March 2007, an MEB convened and considered his diagnoses of thrombocytosis and DVT of the right lower extremity resulting in chronic Coumadin administration.  His diagnoses were found to be medically unacceptable in accordance with Army Regulation 40-501 (Standard of Medical Fitness), paragraphs 3-41e(1) an 3-7f, respectively.  The MEB determined the diagnosis was incurred while he was entitled to base pay and did not exist prior to service (EPTS).  The MEB recommended that he be referred to a PEB.  The findings and recommendation of the MEB were approved on 27 March 2007.

16.  On 10 April 2007, he concurred with the findings and recommendation of the MEB.

17.  On 17 April 2007, an informal PEB convened and considered his diagnosis.  The PEB found him fit for continued military service and recommended that he be returned to duty as fit.  On 19 April 2007, he concurred with the findings and recommendation of the PEB.  The findings and recommendation of the PEB were approved on 19 April 2007.  

18.  On 28 April 2009, an MMRB convened and considered his diagnosis and found that he had a blood clot in the right foot, he had severe pain shooting up his leg, and he could not perform any alternative event of the APFT.  The MMRB recommended that he be referred to the PDES Reserve Component for further determination of his fitness for duty.

19.  On 6 May 2009, he was assigned a permanent profile of 313211 for post phlebitis bilateral lower leg swelling with recurrent cellulitis, and thrombocytosis.  The profile noted that he had appeared before an MMRB on 28 April 2009, had a previous PEB, and he was found fit for duty in 2007.  Because of his declining condition, the commander referred him to an MMRB.  The applicant was found unfit by the MMRB and referred to an MEB/PEB.  It was noted that he should wear therapeutic slippers/shoes as directed with no driving of military vehicles.  His assignment limitations were:  No APFT, no running, walking, biking, or swimming.  

20.  On 23 July 2009, the Command Surgeon, 87th USAR Support Command, stated a review of the applicant's medical records indicated he did not meet the medical retention requirements per Army Regulation 40-501, chapter 3.  The Command Surgeon also stated the applicant must be advised of his medical unfitness and options.  

21.  On 6 July 2009, he was advised of the medical disqualification for further retention in the active Reserve.  He was also advised he had performed 20 years of qualifying service and had performed the last 8 years of qualifying service while a member of the active Reserve and he could elect to be transferred to the Retired Reserve if he was eligible or be discharged.  He was further advised of the 15-year rule for medical retirement.  

22.  On 6 July 2009, the Commander, 3rd Battalion, 345th Regiment, issued the Commander, Regional Support Group East, Medical Retention Board, a Memorandum, Subject:  Commander's Performance Statement (with the applicant's name).  The commander stated the applicant was released from the IRR and assigned to that command on 2 July 2007.  While assigned to the IRR, the applicant was recommended for a PEB, the PEB convened on 17 April 2007 and found him physically fit to perform the duties of his grade, rank, and MOS and considered him deployable within the limitations of his profile.  During the applicant's assignment to that command he developed several new medical problems including aggravation of prior medical conditions which limited his physical ability to perform exercises or physical training (Army Warrior Training, Combat Lifesaver Course, and the Observer Controller Trainer Course). Throughout battle assembly, the applicant's physical condition would not allow him to walk independently and he had to rely on a walking cane or walker.  

23.  The commander also stated the applicant's PMOS was 92A and he had a secondary MOS of 92Y (Unit Supply Specialist), both MOSs required him to have a physical profile better than his current profile of 313211.  The last and only record of APFT that the applicant performed while assigned to that command was on 6 June 2007.  On 11 December 2009, the applicant would be 60 years old and he had over 16 years of service.  The applicant was currently on a 1-year extension and his extension expired on 2 January 2010.  The applicant appeared before an MMRB on 28 April 2009 and he was found unfit; he was referred to the MEB/PEB.  The commander recommended that the applicant not be retained for the best interest of the applicant's health and the U.S. Army.

24.  On 7 August 2009, he elected to be transferred to the Retired Reserve with a possibility of recall to duty.

25.  On 8 August 2009, he requested the issuance of a Memorandum of Early Qualification for Retired Pay at Age 60 (15-Year Memorandum).  

26.  His Chronological Statement of Retirement Points, dated 7 August 2009, shows he was credited with 17 years, 6 months, and 9 days of qualifying service for retirement as of his retirement year ending 16 May 2009.

27.  On 21 September 2009, the applicant's brigade commander recommended approval of his request for a 15-Year Memorandum.  The brigade commander stated the applicant had at least 15 qualifying years but less than 20 years for retirement.   He would, however, reach age 60 on 11 December 2009; therefore, he would not have enough time left for either the medical board process or to acquire the additional years needed to qualify for a 20-year retirement.

28.  On 10 December 2009, Headquarters, 81st Regional Support Command (RSC), issued orders honorably discharging him from the USAR effective 11 December 2009.  The orders show the authority for his discharge was Army Regulation 135-178.  

29.  On 5 February 2010, the 87th USAR Support Command provided the applicant a chronological listing of events which led to his honorable discharge effective 11 December 2009 due to reaching age 60 for application to the Army Board for Correction of Military Records.  The letter also advised that on 
20 November 2009 his entire package transferring him to the Retired Reserve was forwarded to the 188th Infantry Brigade Headquarters.  On 7 December 2009, the Chief, Enlisted Branch, sent documentation to get him transferred to the Retired Reserve.  The 81st RSC contacted the Human Resources Command, St. Louis (HRC-STL) which was the approval authority for the 
15-Year Memorandum on 8 December 2009 and the 81st RSC was advised that even with strong evidence that the applicant was unfit for retention the HRC-STL disapproved issuing him a 15-Year Memorandum and disapproved his transfer to the Retired Reserve based on the 15-Year Memorandum policy.  On 10 December 2009 orders were published by the 81st RSC for his honorable discharge.

30.  There is no evidence in his records that shows he was diagnosed with Gulf War Syndrome during his MEBs.  Gulf War Syndrome or Gulf War Illness affects veterans who were near conflicts during or downwind of a chemical weapons depot demolition after the 1991 Gulf War.  A wide range of acute and chronic symptoms have included fatigue, loss of muscle control, headaches, dizziness and loss of balance, memory problems, muscle and joint pain, indigestion, skin problems, and birth defects.  

31.  The applicant provided copies of his diagnoses that shows has been receiving medical treatment for cellulitis and vasculitis in his feet, thrombocythemia, thrombocytosis, and DVT of the right leg at the Atlanta VA Medical Center since April.  There is no evidence he was diagnosed and is being treated for Gulf War Syndrome by the VA.

32.  Army Regulation 600-8-4 (Line of Duty Policy, Procedures, and Investigations) prescribes the policies and procedures governing line if duty determinations of Soldier who sustain certain injuries, disease, or illnesses.  Paragraph 4-8 states, in pertinent part, if an EPTS condition was aggravated by military service the finding will be in line of duty.  If an EPTS condition is not aggravated by military service, the finding will be not in line of duty, EPTS.  Specific findings of natural progress of the pre-existing injury or disease based on well established medical principles alone are enough to overcome the presumption of service aggravation.

33.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System and 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 office, grade, rank, or rating.  It provides for MEBs, which 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 qualifications for retention based on the criteria in Army Regulation 40-501, chapter 3.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

34.  Army Regulation 635-40 also provides that if the PEB determines that an individual is physically unfit, it recommends the percentage of disability to be awarded which, in turn, determines whether an individual will be discharged with severance pay or retired.  Paragraph 4-19b states a PEB may decide that a Soldier’s physical defect was EPTS, but must then determine whether the condition was aggravated by military service.  If the PEB determines that a Soldier has an unfitting EPTS condition which was service aggravated, the PEB must determine the degree of disability that is in excess of the degree existing at the time of entrance into the service.  The method of determining the percentage of disability to be awarded in such cases is outlined in appendix B, item B-10 of this regulation.  

35.  Army Regulation 40-501, chapter 3, provides that, for the separation of an individual found to be unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.  Members with conditions, as listed in this chapter, are considered medically unfit for retention on active duty and are referred for disability processing.

36.  Title 10, U.S. Code, section 12731b (Special rule for members with physical disabilities not incurred in line of duty), specifies a member of the Selected Reserve who no longer meets the qualification for membership in the Selected Reserve solely because the member is unfit because of physical disability, for the purpose of section 12731 (Age and Service Requirements) of this title, be treated as having met the service requirements and be provided with the notification required if he has completed at least 15 years and less than 20 years of service.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the applicant was diagnosed with thrombocytosis when he was on an 11 month tour of active duty as a Reservist.  In 1992, he appeared before an MEB and PEB and was found fit for continued military service.  He was REFRAD on 15 January 1993 and transferred to the IRR.  He was subsequently transferred to a troop program unit.

2.  Thrombocytosis is a secondary condition caused by another disease or condition, and there is no evidence or indication that the causative disease was determined to have been incurred in line of duty.  As such, it would appear that his thrombocytosis was improperly determined to have been incurred in line of duty.

3.  In 2007, he appeared before an MEB with a diagnosis of thrombocytosis and DVT.  The diagnoses were found to be medically unacceptable in accordance with Army Regulation 40-501, chapter 3.  He appeared before a PEB and was found fit and it was recommended that he be returned to duty.  In July 2009, the applicant's battalion commander recommended that the applicant not be retained for the best interest of his health and the U.S. Army.  He was given the option of electing to be transferred to the Retired Reserve or to be discharged.  He elected to be transferred to the Retired Reserve.  One day later, he requested the issuance of a 15-Year Memorandum.  

4.  In September 2009, the applicant's brigade commander recommended granting the applicant a 15-Year Memorandum.  However, in December 2009 the request for a 15-Year Memorandum was disapproved.  He was honorably discharged from the USAR on 11 December 2009.   

5.  It would appear that he was not transferred to the Retired Reserve with entitlement to retired pay at age 60 (he was not issued a 15-year letter) because his thrombocytosis was improperly found to have been incurred in line of duty (the 15-year letter provision is limited to disabilities which are not service connected).

6.  There is no evidence that any of his other medical conditions, i.e., Gulf War Syndrome, rendered him unfit to perform his duties during his period of service.  There is no evidence and he has provided no evidence that shows this medical condition required imposition of assignment limitations or even referral to an MEB/PEB for medical separation processing at the time or that he is currently receiving treatment for the condition from the VA.

7.  In view of the foregoing, it is concluded he is entitled to correction to his records to shows his thrombocytosis was not in the line of duty, making him eligible for a 15-Year letter due to being medically unfit for retention and making him eligible for retired pay at age 60.  

8.  A Survivor Benefit Plan (SBP) election must be made prior to the effective date of retirement or the SBP will, by law, default to automatic SBP spouse coverage (if married).  This correction of records may have an effect on the applicant’s SBP status/coverage.  The applicant is advised to contact his nearest Retirement Services Officer (RSO) for information and assistance immediately.  A listing of RSOs by country, state, and installation is available on the Internet at website http://www.armyg1.army.mil/RSO/rso.asp.  The RSO can also assist with any TRICARE questions the applicant may have.

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 should be corrected by: 

	a.  voiding the DA Form 2173, dated 23 July 1992, approving the applicant's thrombocytosis as being incurred in the line of duty and removing it from his records;

	b.  revoking the orders discharging him from the USAR effective 10 December 2009; 

	c.  publishing orders transferring him to the Retired Reserve effective 10 December 2009; 

     d.  showing the applicant was eligible to apply for early qualification for retired pay at age 60, that he so applied in a timely manner, and that his application was approved and processed in a timely manner to be effective upon his reaching age 60; and

     e.  paying to him all due retired pay retroactive to the date he turned age 60.

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 showing he was also diagnosed with Gulf War Syndrome and rendered unfit to perform his duties at the time due to this medical condition.



      _______ _   _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)                                         AR20100011620



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100011620


   
2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1