IN THE CASE OF:	  

		BOARD DATE:	  21 August 2012

		DOCKET NUMBER:  AR20120000219 


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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was medically retired, to show his injuries were combat-related and Gulf War related, and to show he completed the Airborne Course.  He also requests "back payments, compensation, and benefits" from 29 March 1995 to the present and to continue into the future.

2.  He states he should have been medically retired due to his daily petit seizures that persisted after he was discharged.  His injuries occurred during training at the National Training Center (NTC), which is considered a war-like environment.  His back injuries were caused from jumping out of airplanes, which is also a war-time simulation.  Post-traumatic stress disorder (PTSD) was diagnosed and it was not pointed out in his discharge.  Neither was his Gulf War syndrome, vomiting, migraines, headaches, blurry vision, diarrhea, back pain, varicose veins, acid reflux, memory loss, neck trauma, depression, anxiety, and many more issues noted in his medical evaluation prior to his discharge.  He served in the Persian Gulf with the Special Forces and witnessed many things.  The nightmares continue, as does his sleep disorder.

3.  He provides:

* his DD Form 214
* his Physical Evaluation Board (PEB) Proceedings
* service medical records


* a Department of Veterans Affairs (VA) Rating Decision
* VA medical records

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.  On 9 August 1988, the applicant enlisted in the Regular Army (RA).  After completing initial entry training, he was awarded military occupational specialty (MOS) 29N (Telephone Control Office Repairer).

3.  His DA Form 2-1 (Personnel Qualification Record) shows in:

* item 5 (Oversea Service) he served in Saudi Arabia from 30 August 1990 through 30 March 1991
* item 35 (Record of Assignments) he was assigned to Headquarters and Headquarters Detachment, 2d Battalion, 5th Special Forces Group (Airborne) on 5 September 1989 

4.  His record includes a diploma issued by the U.S. Army Infantry School, Fort Benning, GA, dated 7 February 1992, showing he successfully completed the Airborne Course.

5.  On 8 August 1992, he was honorably released from active duty at the expiration of his term of service.  At the time, he was assigned to 2d Battalion, 5th Special Forces Group, U.S. Army Special Operations Command, Fort Campbell, KY.  Item 14 (Military Education) of this DD Form 214 does not show his completion of the Airborne Course.

6.  On 24 February 1993, he again enlisted in the RA.  He completed training and he was awarded MOS 92A (Automated Logistical Specialist).


7.  A Standard Form (SF) 93 (Report of Medical History), dated 16 November 1994, shows he reported "seizure, epilepsy, memory loss" from January 1994.  He also reported he had been rejected for military service for varicose veins in 1992.  

8.  An SF 88 (Report of Medical Examination), dated 17 November 1994, shows a physician diagnosed him with a seizure disorder and indicated he was qualified for a Medical Evaluation Board (MEB) and separation.

9.  A DA Form 3349 (Physical Profile), dated 29 November 1994, shows he was given a permanent profile based on his seizure disorder.  He was not to drive, fire weapons, handle loaded weapons, or work in areas where sudden loss of consciousness would cause injury to himself or others.

10.  An MEB Narrative Summary shows he first presented in January 1994 with an episode of loss of consciousness, jerking his arms and legs, and a prolonged altered mental status.  The episode occurred while he was at the NTC, Fort Irwin, CA.  Following treatment, he returned to Fort Hood, TX, and continued to have occasional episodes of loss of consciousness.  An examination did not detect any abnormalities.  The examining physician did note intermittent full effort in the distal muscles of the right upper extremity, but felt it was not due to weakness.  He was diagnosed with generalized seizure disorder and recommended for medical separation.

11.  A DA Form 3947 (MEB Proceedings), dated 30 November 1994, shows he was referred to a Physical Evaluation Board (PEB) with a diagnosis of generalized seizure disorder that was incurred while entitled to basic pay, did not exist prior to service, and was permanently aggravated by service.  He indicated he agreed with the MEB findings.

12.  On 8 December 1994, his commander submitted a memorandum to the President, PEB.  He stated:

* the applicant's last duty performance was in December 1993 at the NTC
* his profile prevented him from performing any physical exercise or taking the Army Physical Fitness Test
* he was unable to perform his MOS duties due to his seizure disorder, memory loss, and physical limitations
* there was no anticipated future assignment for him


13.  A DA Form 199 (PEB Proceedings) shows a PEB convened on 19 December 1994.  The PEB found the applicant physically unfit based on his diagnosis of generalized seizure disorder with poor response to medication and with a paucity of objective physical/medical findings.

	a.  The PEB recommended a disability percentage of 20 percent (%) and that he be separated with severance pay.

	b.  The PEB made the recommended findings that:

		(1)  his separation was not based on disability from injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurred in the line of duty during a period of war as defined by law, and

		(2)  his disability did not result from a combat-related injury as defined in Title 26, U.S. Code, section 104.

14.  On 11 January 1995, the applicant concurred with the PEB findings and recommendations and waived a formal hearing of his case.

15.  On 12 January 1995, the PEB findings and recommendations were approved.

16.  On 28 March 1995, he was honorably discharged for disability with severance pay.  His DD Form 214 for this period shows he completed 6 years, 1 month, and 5 days of active military service.

17.  He provides service medical records showing:

* he was treated for several minor medical issues during his Army service, all of which were resolved
* he had a left varicocele (abnormal enlargement of a vein in the scrotum) that was surgically repaired on 3 March 1992
* he was diagnosed with seizure disorder in January 1994

18.  He provides a VA Compensation and Pension Exam Report, dated 22 November 1996, showing he was diagnosed with:

* amnestic disorder and personality disorder (aggressive and paranoid type) due to a general medical condition (seizure disorder)
* cognitive disorder and cognitive deficits due to seizure disorder

19.  He provides VA medical records showing he received medical treatment from the VA for a variety of ailments since he was discharged.

20.  He provides a VA Rating Decision, dated 27 January 2012, showing he has been diagnosed with several service-connected medical conditions subject to compensation.  The diagnoses and associated ratings follow.

	a.  Generalized seizure disorder:

* 10% from 29 March 1995
* 20% from 12 July 2003
* 100% from 16 December 2010

	b.  PTSD (also claimed as depression, mood changes, anxiety, cognitive disorder, amnestic disorder, personality changes, memory loss, chest pains, fainting spells, and dizziness):  50% from 16 December 2010.

	c.  Sleep apnea:  50% from 3 August 2011.

	d.  Degenerative disc disease of the lumbosacral spine (also claimed as muscle spasms, back pains, and twitching of muscles):

* 0% from 29 March 1995
* 10% from 6 March 2003
* 20% from 16 December 2010

	e.  Left groin varicocele (also claimed as tender left spermatic cord and urination problems):

* 0% from 29 March 1995
* 100% from 28 May 2004
* 10% from 1 September 2004

	f.  Tinnitus:  10% from 16 December 2010.

	g.  Seasonal rhinitis (claimed as upper respiratory condition): 0% from 25 March 2011.

21.  The VA Rating Decision shows the following conditions were not service-connected:

* sore joints 


* cervical degenerative disc disease 
* right knee arthritis associated with generalized seizure disorder
* left knee condition
* right foot injury associated with generalized seizure disorder
* hearing loss
* irritable bowel syndrome
* sexual dysfunction
* pseudofolliculitis barbae (shaving bumps)
* athlete's foot
* nervous twitch
* migraine headaches with sensitivity to light associated with generalized seizure disorder
* right and left arm and hand numbness/tingling
* right and left leg numbness/tingling
* cognitive disorder with personality change and amnesic disorder
* sleep disorder

22.  During the processing of this case, on 9 March 2012 an advisory opinion was obtained from the U.S. Army Physical Disability Agency (USAPDA).  The advisory official recommends denial of the applicant's request.

	a.  The official states that based on a review of the documentation provided by the applicant, he concluded the applicant had not provided any evidence that in 1994 he had any existing conditions besides the seizure disorder that did not meet medical retention standards, required physical profile limitations, or significantly affected his ability to perform his assigned military duties.  The advisory official states even if there were some conditions present at the time, the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  Only conditions that are found to be unfitting can be found to be compensable in the military disability system.

	b.  Only conditions that are the direct result of armed conflict, and instrumentality for war, or training for combat are eligible for designation as combat related.  The fact that symptoms of the applicant's seizure disorder first manifested when he was training at the NTC does not support that such military training caused him to have a seizure disorder.  The PEB found the condition to not have been combat-related, and the applicant concurred.

	c.  The MEB and PEB findings were correct and supported by a preponderance of the evidence.  The applicant has provided no substantial evidence of any material errors in the findings and his subsequent separation.


23.  On 9 March 2012, the applicant was provided a copy of the advisory opinion for information and to allow him the opportunity to submit comments or a rebuttal.  In his response, dated 3 April 2012, he states he disagrees with the advisory opinion.  He states, in part:

	a.  The USAPDA "has tried to tie up everything in a bow and ribbon and base the majority of [the advisory opinion on] the PEB in 1994."  He complained about other injuries and illnesses he experienced during his service and questions why the USAPDA would leave out facts documented in the more than 200 pages of documents he provided.

	b.  The VA's award of compensation is based on what is in a veteran's service record.

	c.  Stress from a training environment can cause a person to have a seizure.

24.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  The version of the regulation in effect at the time stated for item 14, list in-service training courses by title, number of weeks successfully completed during this period of service, and the year completed.  This information was to assist the member after separation in job placement and counseling; therefore, training courses for combat skills were not to be listed.

25.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) 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 or her office, grade, rank, or rating.  The mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability (emphasis added).  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  Separation by reason of disability requires processing through the PDES.

26.  Army Regulation 635-40 states there is no legal requirement in arriving at 


the rated degree of incapacity to rate a physical condition which is not in itself 
considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying.  Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.  

27.  Army Regulation 635-40, chapter 4, contains guidance on processing through the PDES, which includes the convening of an MEB to document a Soldier's medical status and duty limitations insofar as duty is affected by the 
Soldier's status.  If the MEB determines a Soldier does not meet retention standards, the case will be referred to a PEB.  The PEB evaluates all cases of physical disability equitably for the Soldier and the Army.  The PEB investigates the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board.  It also evaluates the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating.  Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability.  These findings and recommendations include a determination of whether or not the disability is combat-related as defined in U.S. Code.

28.  Rules for taxation of disability compensation are established in Title 26, U.S. Code, section 104.  This statute defines ''combat-related injury'' as personal injury or sickness that is incurred as a direct result of armed conflict while engaged in extra-hazardous service under conditions simulating war or which is caused by an instrumentality of war.

29.  Title 38, U.S. Code, sections 1110 and 1131, 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 empowered 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 may have a medical condition that is not considered medically unfitting for military service at the time of processing for separation, discharge, or retirement, but that same condition may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.



DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant completed the Airborne Course on 7 February 1992.  This course includes training applicable to civilian job placement and counseling.  Therefore, it would be appropriate to add this course to item 14 of his DD Form 214 for the period ending 8 August 1992.

2.  The evidence of record does not support his request for correction of his record to show he was medically retired and to show his injuries were combat-related and Gulf War related, nor does it support his request for "back payments, compensation, and benefits" from 29 March 1995 to the present and continuing into the future.

3.  He began experiencing seizures in January 1994 that led to his referral to an MEB for evaluation of his fitness for continued military service.  The MEB found he was unfit based on his diagnosis of generalized seizure disorder and referred him to a PEB.  The PEB confirmed the findings of the MEB and recommended the applicant receive a 20% disability rating percentage and discharged with severance pay.  He concurred with the PEB's findings and recommendation.  On 28 March 1995, he was discharged accordingly.

4.  The available evidence does not show and the applicant has not provided evidence showing his unfitting condition was combat-related.  In the absence of such evidence, it must be presumed the PEB correctly characterized his unfitting condition as non-combat related.

5.  The fact that the VA granted service-connected disability ratings for several conditions in addition to generalized seizure disorder has no bearing on the findings and recommendation of the PEB.  The VA 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.  Receiving a rating from the VA for a condition that was not considered or rated by a PEB is not evidence of error by the PEB.

6.  The DA Form 3349 dated 29 November 1994 shows he was given a permanent profile based only on his seizure disorder.  His limitations of not driving, firing weapons, handling loaded weapons, or working in areas where sudden loss of consciousness would cause injury to himself or others were related to his seizure disorder.  There is no evidence to show any other medical conditions rendered him unfit; therefore, it appears that no other conditions were properly not considered or rated by the PEB.



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 adding to item 14 of his DD Form 214 for the period ending 8 August 1992 the entry "Airborne Course, 3 weeks, February 1992."

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 correcting his record to show he was medically retired and to show his injuries were combat-related and Gulf War related and to paying him "back payments, compensation, and benefits" from 29 March 1995 to the present and continuing into the future.



      __________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)                                         AR20120000219



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ABCMR Record of Proceedings (cont)                                         AR20120000219



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