BOARD DATE:	  2 June 2011

		DOCKET NUMBER:  AR20100026219 


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, reconsideration of her previous request to upgrade her Reentry (RE) Code and reverse her retirement action based on an erroneous diagnosis of probable irritable bowel disease with severe adhesions.

2.  The applicant states that as a result of the erroneous diagnosis she suffered severe negative consequences that impacted her military career. 

3.  The applicant provides:

* A two-page statement explaining her application
* A three-page statement from her spouse
* 77 pages of supporting evidence consisting of medical documents, her Medical Evaluation Board (MEB) Proceedings, and her civilian education transcripts
* A statement from a Texas Army National Guard Recruiter indicating that her RE Code prohibits her from reentering the military

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 AR20090005465, on 23 July 2009.

2.  The applicant enlisted in the Regular Army (RA) on 22 August 2002 for a period of 4 years, training in military occupational specialty 41J (Early Warning System Operator) and a $10,000 enlistment bonus.  She completed basic training at Fort Leonard Wood, Missouri and advanced individual training at Fort Bliss, Texas before being assigned to Fort Hood, Texas for her first and only duty assignment.

3.  On 5 May 2004, she was considered by an MEB which found her as having severe irritable bowel syndrome and intra-abdominal adhesions with chronic abdominal pain.  The MEB recommended that she be referred to a Physical Evaluation Board (PEB).  The applicant agreed with the findings and recommendations of the MEB and indicated that she desired to continue on active duty. 

4.  On 25 May 2004, an informal PEB convened at Fort Sam Houston, Texas and confirmed the MEB findings.  The PEB recommended that she be placed on the Temporary Disability Retired List (TDRL) with a 30% disability rating and that she be reexamined in June 2005.  The applicant concurred with the PEB findings and recommendations and waived a formal hearing of her case.

5.  On 16 August 2004, she was placed on the TDRL in the pay grade of E-3 due to temporary disability.  She had served 1 year, 11 months, and 25 days of active service.  She was issued an RE Code of “4R.”

6.  On 8 August 2005, an informal PEB convened at Fort Sam Houston and determined that the applicant was unfit to reasonably perform the duties of her military occupational specialty (MOS) and grade.  The PEB recommended that she be permanently retired with a 30% disability rating.  The applicant concurred with the PEB findings and recommendation and waived a formal hearing of her case.

7.  In support of her application the applicant has provided letters from a physician who states he removed endoscopic surgical clips from her pelvis that had fallen off the pedicle from her appendectomy and that she has had no pelvic pain to date.  Additional statements from medical personnel indicate they have seen no symptoms of irritable bowel syndrome within the past 4 years.

8.  The medical records provided by the applicant show:

* The applicant initially complained of abdominal pain.  She was transferred from Darnall Army Community Hospital (DACH) to Scott and White Medical Center with a diagnosis of pyelonephritis.
* She was treated for E. coli pyelo but her symptoms of abdominal pain localized to her lower right quadrant and after several days at Scott and White she was taken to the operating room for laparoscopic appendectomy and pathology showed that her appendix was inflamed 
* Although she initially improved, the pain persisted and she developed bloody diarrhea.  She was eventually transferred to Brooke Army Medical Center (BAMC) where her evaluation and treatment continued.
* Between DACH, Scott and White and BAMC, the applicant underwent colonoscopy at least three times and at least one showed extensive ulceration inside the colon consistent with Crohn’s Disease
* She had an upper GI scope evaluating her esophagus and stomach once or twice and once she swallowed a pill size camera to evaluate the inside of her bowel
* She had an exploratory laparotomy to evaluate continued pain
* She was treated for C. difficile infection and she was treated with steroids for Inflammatory Bowel Disease (not to be confused with Irritable Bowel Syndrome for which she was retired)
* She had her gall bladder removed because of pain and bowel symptoms
* In August 2004 she was placed on the TDRL 
* In June 2005 she underwent a laparoscopic cholecystectomy for bilary dyshinesia (gallbladder removed for pain without any gallstones or inflammation)
* In August 2005 she was stable but unimproved and was permanently retired
* In June 2006 she complained to her gynecologist of painful intercourse, pelvic pain, and concerns about fertility.  She underwent laparoscopy and no areas of erythema or edema were found in the pelvis.  No adhesions were found (prior exploratory laparotomy and subsequent laparascopy for cholecystectomy also did not find adhesions.  Six titanium surgical clips were found scattered in the pelvis and were removed through the laparoscope
* Subsequent records show only one more evaluation for abdominal pain in November 2007.  She also complained of burning on urination but her pain was right-sided abdominal pain

9.  Pertinent Army Regulations provide that prior to discharge or release from active duty individuals will be assigned RE codes based on their service records or reason for discharge.  Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the USAR.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of armed forces RE codes, including RA RE codes.

10.  RE-4 indicates that a person is not qualified for continued Army service by virtue of being separated from the service with a nonwaivable disqualification.  The applicable regulations direct that an RE Code of 4 be assigned for a Separation Code of “SFK” which indicates separation for disability, temporary. 

11.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides, in pertinent part, that the TDRL is used in the nature of a "pending list".  It provides a safeguard for the Government against permanently retiring a Soldier who can later fully recover, or nearly recover, from the disability causing him or her to be unfit.  Conversely, the TDRL safeguards the Soldier from being permanently retired with a condition that may reasonably be expected to develop into a more serious permanent disability.  Requirements for placement on the TDRL are the same as for permanent retirement.  The Soldier must be unfit to perform the duties of his or her office, grade, rank, or rating at the time of evaluation.  The disability must be rated at a minimum of 30 percent or the Soldier must have 20 years of service computed under Title 10, U.S. Code, Section 1208, (10 USC 1208).  In addition, the condition must be determined to be temporary or unstable.

12.  The Army's determination of a Soldier's fitness or unfitness is a factual finding based on the individual's ability to perform the duties of his/her grade, rank, or rating.  If the Soldier is found to be physically unfit, a disability rating is awarded by the Army and is permanent in nature.  The Army system requires that the Soldier only be rated as the condition(s) exist(s) at the time of the physical evaluation board hearing.

DISCUSSION AND CONCLUSIONS:

1.  While the applicant’s willingness to serve is to be commended, she was properly placed on the TDRL under the provisions of Army Regulation 635-40, for temporary physical disability and she was properly issued a separation code of “SFK” and an RE code of “4” in accordance with the applicable regulations.  She was subsequently retired by reason of permanent physical disability.

2.  The applicant’s contention that she was misdiagnosed and that all of her problems were due to the presence of surgical clips in her abdomen has been noted and appears to lack merit.  The available evidence shows that she had pain prior to having any surgical clips placed.  She had symptoms of Irritable Bowel Syndrome that rendered her unfit but these symptoms were resolved prior to the removal of the surgical clips.  Titanium surgical clips are inert and do not cause ulceration of the inside of the large bowel.  They do not cause pain and no edema or erythema was ever discovered around any of the clips in spite of the fact that she had three abdominal procedures after placement of the clips.
3.  Although a few stray clips were removed in 2006, the applicant still had multiple (perhaps dozens) of surgical clips across the site where her appendix was removed and at the site where her gallbladder was removed.  The removal of the six surgical clips randomly scattered in her pelvis appear to have nothing to do with the resolution of her pain.

4.  The applicant is indeed quite fortunate that she has not been experiencing the problems of her service-connected disability over the past years; however, under the applicable laws and regulations in effect, she is no longer eligible to enlist once she has been retired by reason of permanent physical disability.
The applicant has established no basis for granting her request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x__  ____x____  ___x_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1. 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 AR20090005465, dated 23 July 2009.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States.  The applicant and all Americans should be justifiably proud of her service in arms.



      __________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)                                         AR20100026219



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ABCMR Record of Proceedings (cont)                                         AR20100026219



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