IN THE CASE OF:	  

		BOARD DATE:	  27 September 2011

		DOCKET NUMBER:  AR20110002871 


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 his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show the results of his Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB).

2.  The applicant states he was an Army National Guard (ARNG) Soldier.  While serving on active duty at Fort Bliss, TX in late 2005/early 2006, he contracted Coccidiomycosis.  In 2009, he was determined to be unfit and was discharged from the Pennsylvania ARNG due to a disability with severance pay.  He is applying for Department of Veterans Affairs (VA) benefits, but is having problems because of his DD Form 214.

3.  The applicant provides:

* a copy of his active duty orders
* his DD Form 214
* a DA Form 3947 (MEB Proceedings)
* an MEB Narrative Summary (NARSUM)
* a copy of his separation orders
* memoranda from his unit
* VA Form 9 (Appeal to Board of Veterans Appeals)



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 was an ARNG staff sergeant.  On 18 November 2005, he reported to active duty for training at Fort Bliss, TX.  On 15 January 2006, he went to the hospital emergency room with a fever.  He was treated and released, but continued to suffer from aches and pains.

3.  On 14 February 2006, he was honorably released from active duty and returned to his ARNG unit due to completion of required active service.

4.  The applicant continued to experience medical problems at his ARNG unit and he was ultimately referred to the Army's physical disability evaluation system (PDES).  An MEB was held at Kimbrough Army Hospital, Fort Meade, MD on 2 April 2009.  He was diagnosed with polyarticular inflammatory arthritis and Coccidiomycosis and was referred to a PEB.

5.  On 28 August 2009, a PEB was conducted at Walter Reed Army Medical Center (WRAMC), Washington, DC.  The applicant was determined to be 20 percent disabled due to rheumatoid arthritis and 
(0 percent) disabled due to Coccidiomycosis.  The PEB also found him unfit and recommended separation with disability severance pay.  The applicant concurred.

6.  Orders D265-123, U.S. Army Physical Disability Agency, dated 22 September 2009, discharged the applicant from the ARNG by reason of physical disability effective 27 October 2009 with a 20 percent disability rating.  The disability was not the result of a combat-related injury, nor was it incurred in a combat zone, or during performance of duty in combat-related operations.

7.  The applicant was issued a National Guard Bureau (NGB) Form 22 (NGB – Report of Separation and Record of Service) discharging him from the ARNG and as a Reserve of the Army effective 27 October 2009.  An NGB Form 22A (Correction to NGB Form 22) shows he was separated with disability severance pay of $46,515 based on his 20 percent disability rating.

8.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment, including officer procurement programs, and retention and separation, including retirement.  It provides, in pertinent part:

   a.  In paragraph 3-3a, that performance of duty despite an impairment would be considered presumptive evidence of physical fitness.

   b.  In paragraph 3-3b(1), as amended, that for an individual to be found unfit by reason of physical disability, he/she must be unable to perform the duties of his/her office, grade, rank or rating.

   c.  Various medical conditions and physical defects may render a Soldier unfit for further military service, including, in paragraph 3-40i, rheumatoid arthritis that interferes with successful performance of duty or requires geographic assignment limitations or requires medication for control that requires frequent monitoring by a physician due to debilitating or serious side effects.

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army PDES.  It 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 or her office, grade, rank, or rating.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.  It provides, in pertinent part:

    In paragraph 2-2b, that when a member is being separated by reason other than physical disability, his continued performance of duty  creates a presumption of fitness which can be overcome only by clear and  convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

10.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.

11.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rated at least 30 percent.

12.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It provides standardized policy for preparing and distributing the DD Form 214.  The DD Form 214 is a summary of a Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge.

13.  Coccidiomycosis, or Valley Fever, is an illness that usually affects the lungs.  It is caused by a fungus called Coccidioides.  Coccidioides lives in the dirt.  A hardy form of the fungus can live for a long time under harsh environmental conditions such as heat, cold, and drought, and is spread through spores in the air when the dirt is disturbed.  An estimated 150,000 Coccidioides infections occur each year in the United States, although more than half of these infections do not produce symptoms.  Valley Fever fungus is found in some areas of the southwestern United States, and in parts of Mexico and Central and South America.  These areas have dirt and weather conditions that allow the fungus to grow.  

   a.  People can get Valley Fever if they breathe in the dust from the dirt that contains fungal spores.  Fungal spores can get into the air when dirt containing the fungus is disturbed by digging, during construction, or under strong winds.  Construction and farm workers, military personnel, archaeologists, and others who breathe in dust from the dirt in the areas where Valley Fever is common may be exposed to the fungal spores.

   b.  Valley Fever is difficult to prevent.  There is currently no vaccine; efforts to develop a vaccine are ongoing.  Persons at risk for Valley Fever or for getting severe illness from Valley Fever should avoid exposure to dusty air in areas where Valley Fever is common.

   c.  There are three forms of Coccidiomycosis: acute, chronic, or disseminated:

* Acute pulmonary Coccidiomycosis is almost always mild, with few or no symptoms, and goes away without treatment; the incubation period is 
7 to 21 days
* Chronic pulmonary Coccidiomycosis can develop 20 or more years after the initial infection; lung abscesses can form and rupture, releasing pus (empyema) between the lungs and ribs (pleural space)
* Disseminated Coccidiomycosis is a widespread form of the disease whereby infection spreads to other parts of the body, including the skin, brain, bones, and heart; meningitis occurs in up to half of all people with disseminated Coccidiomycosis


DISCUSSION AND CONCLUSIONS:

1.  The applicant requests his February 2006 DD Form 214 be corrected to reflect the outcome of his 2009 MEB and PEB.

2.  The applicant possibly contracted Coccidiomycosis while at Fort Bliss in late 2005/early 2006 while attending schooling.  He performed his duty and was released back to his ARNG unit.

3.  The applicant's physical condition worsened and he was ultimately determined to be unfit in 2009 due to rheumatoid arthritis and Coccidiomycosis.  He was not on active duty in 2009; therefore, he could not be issued a DD Form 214.

4.  DD Forms 214 are "snapshots it time."  The applicant's DD Form 214 issued on 14 February 2006 correctly represents the applicant's situation at that time.  He completed his training, was never evaluated for a medical disability, and was released back to his ARNG unit.  Only some 3 years later did his condition deteriorate to the point he required referral to the PDES.

5.  The applicant's situation is analogous to that of a Soldier with prostate cancer.  Prostate cancer is very slow growing.  The Soldier could have developed prostate cancer during his active Army service; however, because of the nature of the disease, he could have continued to perform his duties with problems.  After being released from active duty, the Soldier's untreated cancer could develop to the point of making him unfit; but it is not possible to go back in time to arbitrarily impose unfitness on him after the fact.

6.  The applicant's NGB Form 22A shows he was separated with disability severance pay, which fact verifies he had an illness incurred in the line of duty and should be acceptable to the VA.  A copy of this form will be provided to the applicant.  



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)                                         AR20110002871



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ABCMR Record of Proceedings (cont)                                         AR20110002871



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