IN THE CASE OF:	  

		BOARD DATE:	  29 March 2012

		DOCKET NUMBER:  AR20120000859 


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:

* Retroactive promotion to the rank/grade of colonel (COL)/O-6 with entitlement to all back pay and allowances
* Active duty medical retirement with a 100 percent (%) disability rating
* Military medical care equivalent to that provided to active duty Soldiers and Retirees for the remainder of his life
* Documentation of his disability that will allow him to file with the Department of Veterans Affairs (VA) for benefits.

2.  The applicant states, in effect, that he was misdiagnosed with a disease by the Army in early 1997 and 15 years later he was determined to be a rare false-positive.  However, during the 15 years he was believed to have the disease he was subjected to treatments he did not need and suffered the side effects of those treatments.  He further states that believing he had the disease prevented him from exploring career opportunities because he feared he would lose his health coverage without which he could not have afforded to pay for the crippling costs of medical tests that eventually proved he was completely healthy.  He further states that the misdiagnosis by the Army effectively sidelined/limited his military career as he was not able to compete with his peers on a level playing field and the anguish he experiences not knowing what will happen to him since he has been exposed to treatments and drugs that he did not need and the effects it will have on him causes him stress every day and he has received no redress from the Army for his situation. 

3.  The applicant provides a list of documents provided with his application.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the applicant’s application be granted as requested.

2.  Counsel states that although the applicant was informed in 2006 that he had been misdiagnosed, the applicant’s application is timely filed based on his Congressional Representative’s 2009 letter informing him that his only avenue of redress was application to this Board.

3.  Counsel provides a 5-page memorandum explaining the applicant’s circumstances and the rationale for his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant was commissioned as a U.S. Army Reserve (USAR) military intelligence second lieutenant on 12 May 1985.  He was commissioned as a Regular Army second lieutenant and he was ordered to active duty on 9 August 1985.  He served until he was honorably discharged in the rank of captain on 1 August 1994 under the provisions of Army Regulation 635-120 by reason of the Early Release Program – Special Separation Benefit (SSB).  He completed
8 years, 11 months, and 23 days of creditable active service.  He accepted a USAR commission and he was transferred to the USAR Control Group (Reinforcement).  He was promoted to the rank of major on 11 December 1996.

2.  In January 1997, in preparing for deployment to Bosnia, the applicant was identified as having a potentially life-threatening condition that deemed him
non-deployable to overseas locations.

3.  He was promoted to the rank of lieutenant colonel (LTC) on 7 March 2003 and on 21 June 2006 he was issued his notification of eligibility for retired pay at
age 60 (commonly known as the 20-year letter).

4.  In August 2006 the applicant received notification from the University of Michigan Infectious Disease Center and the Center for Disease Control (CDC) that he had been misdiagnosed and that he was a rare false-positive case.  The misdiagnosis was confirmed by the U.S. Army Human Resources Command (USAHRC) Command Surgeon in October 2006.

5.  On 9 May 2007, he was ordered to active duty in support of Operation Enduring Freedom (OEF) and to report to Fort Belvoir, VA.  He served on active duty until he was honorably released from active duty (REFRAD) on 7 May 2008 at the completion of required active service.  He had served 11 months and 29 days of net active service during his period.

6.  A review of his evaluation reports show he was assigned as a Strategic Intelligence Detachment (SID) commander in June 2006 and he received maximum evaluation reports from the time he entered the USAR until September 2010, when he received a satisfactory rating from his rater as an SID commander.  In December 2010, he was relieved for cause.  He was reassigned to another command and in December 2011, he again received a maximum evaluation report as a senior intelligence officer.  His record also shows he served as a Deputy Commander and Chief of Staff of an Area Support Group in Michigan from December 2004 to December 2006.  He also served as an acting battalion commander from 2003 to 2004.

7.  The applicant’s medical records are not present for review.  However, a review of his Official Military Personnel File (OMPF) fails to show any visible indication that the applicant was identified as having any medical disqualifications or any indication of a medical diagnosis being made that rendered him non-deployable.

8.  On 5 September 2006, an official of the Walter Reed Army Medical Center signed a memorandum indicating the applicant was not infected by the disease for which he was originally diagnosed.

9.  The applicant also provided a memorandum authored by an official at the Walter Reed Army Institute of Research (WRAIR), dated 18 November 2011, that indicates while the applicant’s infection status cannot be determined, he does not have the disease for which he was originally diagnosed and the administrative restrictions of Army Regulation 600-110 should not apply to the applicant.

10.  The applicant also provides letters of support from five former commanders who indicate they were aware of his diagnosis and that he was disadvantaged career-wise by the misdiagnosis.

11.  Army Regulation 135-155 (Army National Guard and U.S. Army Reserve Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) provides the policies and procedures for convening Special Selection Boards (SSB).  It provides that SSBs are formed to prevent an injustice to an officer or former officers who were eligible for promotion but whose records contained a material error when reviewed by the selection board.  A material 


error is defined as one or more errors of such a nature that in the judgment of the reviewing official or reviewing body, caused an individual’s nonselection by a promotion board.  Had such errors been corrected at the time the individual had been considered, a reasonable chance would have resulted that the individual would have been recommended for promotion.  The USAHRC, Office of Promotions will normally not determine that a material error existed if the administrative error was immaterial, if the officer exercising reasonable diligence could have discovered the error or omission, or if the officer could have taken timely corrective action by notifying officials at the Office of Promotions of the error and providing any relevant documentation.

12.  Army Regulation 135-155 also provides that an officer under consideration may write to the selection board inviting attention to any matter of record deemed vital to their consideration.  Any written communication considered by a selection board will become a matter of record and will be maintained with the records of the board for 1 year.  Board members must take an oath that they will not divulge the proceedings or results thereof pertaining to the selection or nonselection of individual officers except to proper authority.

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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 purposes of his employment on active duty.  It states commanders of medical treatment facilities (MTFs) who are treating Soldiers may initiate action to evaluate the Soldier’s physical ability to perform the duties of his or her office, grade, rank, or rating.  The commander will advise the Soldier’s commanding officer of the results of the evaluation and the proposed disposition.  If it appears the Soldier is not medically qualified to perform duty, the MTF commander will refer the Soldier for evaluation under the Physical Disability Evaluation System (PDES).

14.  Title 38, U.S. Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, 


discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

15.  There is a difference between the VA and the Army disability systems.  The Army's determination of a Soldier's physical fitness or unfitness is a factual finding based upon the individual's ability to perform the duties of his or 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 (PEB) hearing.  The VA may find a Soldier unfit by reason of service-connected disability and may even initially assign a higher rating.  The VA's ratings are based upon an individual's ability to gain employment as a civilian and may fluctuate within a period of time depending on the changes in the disability.
 
DISCUSSION AND CONCLUSIONS:

1.  While the Board does not dispute the fact that he was misdiagnosed as having a potentially life-threatening condition/disease and that he has endured hardships as the result of the misdiagnosis, that in itself does not serve as a basis to grant individuals permanent disability retirement with a 100% disability rating, especially since it was a misdiagnosis.

2.  It is noted that the applicant underwent treatment for the condition for which he was misdiagnosed and that he was ordered to active duty from 2007 to 2008.  Absent evidence to the contrary, it must be presumed that he was deemed fit for retention and/or separation because he was honorably REFRAD due to completion of required service.

3.  Department of the Army disability decisions are based upon observations and determinations existing at the time of the PEB hearing and are based upon conditions that render the Soldier unfit to perform his duties.  The Department of the Army ratings becomes effective the date that permanency of the diagnosis is established.

4.  In the applicant’s case no such determination has been made and based on the review of his evaluation reports, it appears that the applicant has remained fit for duty, which would preclude his referral for evaluation under the PDES.

5.  The applicant’s contention that he should be promoted to colonel because he has been disadvantaged by the misdiagnosis has been noted and also appears 


to lack merit.  The applicant was serving as a major when he was misdiagnosed and he was promoted to LTC, which is indicative that the promotion process was conducted in accordance with the applicable laws and regulations governing the conduct of promotion boards.

6.  While the applicant would have the Board believe that he was nonselected for promotion to colonel because of his misdiagnosis, given the fact that promotion boards do not reveal the reasons for selection or nonselection and the fact that the applicant has not provided sufficient evidence to support his contention, there appears to be no basis to grant his request for promotion.

7.  While it is unfortunate that the applicant was not selected for promotion to colonel, it is also a well-known fact that not all officers are selected by promotion boards because there are always more officers eligible than there are authorizations to promote.  If such was not the case, there would be no need to have a selection board.

8.  Accordingly, it would be inappropriate to second-guess the members of the selection board who had the opportunity to compare the applicant's records with those of his peers without sufficiently convincing evidence of an error or injustice.

9.  The applicant’s contention that the Department should provide him with a document that records his disability for purposes of applying to the VA has also been noted and appears to lack merit.  The applicant has been determined to be in a category of his own in that he is a rare false-positive case that has not been previously seen before which is clearly documented by the appropriate medical officials at the WRAIR.  Accordingly, no further documents, other than those already in the applicant’s possession, are necessary to document his case.

10.  The applicant’s contention that he should be granted medical care for the remainder of his life has also been noted and found to lack merit.  Barring an unforeseen disability that may occur before the applicant’s retirement that will result in a disability rating of 30% or greater, there is no basis to grant the applicant’s request.  However, he is not precluded from applying to the VA for benefits in that regard.

11.  In view of the foregoing, there is no basis for granting the applicant's requested relief.


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 for correction of the records of the individual concerned.

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 during the Global War on Terrorism.  The applicant and all Americans should be justifiably proud of his 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)                                         AR20120000859



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ABCMR Record of Proceedings (cont)                                         AR20120000859



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