BOARD DATE:	  21 August 2012

		DOCKET NUMBER:  AR20120001802 


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 medical records to show a line of duty (LOD): "No" as "Yes," and a finding of existed prior to service (EPTS): "Yes," as "No."

2.  The applicant states the findings of LOD: NO; and EPTS: YES are incorrect and contrary to the medical and investigatory evidence.  It will be a grave injustice if these findings are allowed to remain because it would have a long lasting negative bearing on any future medical claims for benefits.

3.  The applicant provides copies of:

* Standard Form (SF) 88 (Report of Medical Examination) dated 7 June 1986
* SF 88, dated February 1988
* SF 93 (Report of Medical History) dated 26 May 1992
* SF 88, dated 25 September 1992
* SF 88, dated 15 May 1997
* DA Form 3947 (Medical Evaluation Board (MEB) Proceedings) dated                 21 November 2005
* Narrative Summary (NARSUM), Community Based Healthcare Organization Florida (CBHCO-FL), undated
* Memorandum, Fort Jackson, SC, dated 23 November 2005
* Progress Note, dated 6 December 2005
* Appeal of the MEB of 21 November 2005, dated 6 January 2006
* Memorandum for President, Physical Evaluation Board (PEB), subject: Appeal to Findings on 31 January 2006, dated 21 February 2006
* Information sheets (3 pages) from the internet, subject: Interstitial Cystitis

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.  At the time of his application, the applicant was a lieutenant colonel, pay grade O-5, U.S. Army Reserve, Judge Advocate General’s Corps.

3.  An SF 88, dated 7 June 1986, shows that the applicant underwent a physical examination and was found qualified for the Reserve Officers’ Training Corps (ROTC) program.

4.  An SF 88, dated February 1988, shows that the applicant underwent a physical examination and was found qualified for airborne training.

5.  An SF 93, completed by the applicant in 1992, shows he considered his health to be "good."  He further stated that he was not taking any medications at the time.

6.  An SF 88, dated 25 September 1992, shows that he was found fully qualified for either retention or separation.  The report makes no mention of any abnormalities.

7.  An SF 88, dated 15 May 1997, shows that the applicant was found fully qualified for retention.  He denied any sign of illness or injury.

8.  The applicant was mobilized in support of Operation Iraqi Freedom during 2004 - 2005.

9.  A DA Form 3947, dated 21 November 2005, indicates that an MEB recommended the applicant be referred to a PEB due to a diagnosis of chronic interstitial cystitis originating in 2003.

	a.  This condition was reported as not having occurred while entitled to base pay; existed prior to service; and was aggravated by service.

	b.  The form also notes an LOD = NO; and EPTS = YES.

	c.  The applicant did not indicate in item 15 whether he desired to, or not to continue on active duty.

	d.  The findings and recommendations of the MEB were approved on 
22  November 2005.

	e.  The applicant signed and dated the document on 23 November 2005, indicating his disagreement with the MEB findings and recommendation.

	f.  On 10 January 2006, the MEB approving authority signed the document indicating that the applicant's appeal had  been considered and the findings and recommendation were confirmed.

10.  The undated NARSUM states it is based upon physical examinations and/or evaluations made on and after 10 November 2004.  No medical records were available prior to 10 November 2004.

	a.  The applicant's chief complaint was perineal pain and frequent urination

	b.  EPTS:  Yes/aggravated.

	c.  Diagnosis: Chronic Interstitial Cystitis

	d.  LOD: Informal/Yes   Completed by CBHCO-FL

	e.  The 6-page NARSUM speaks to the applicant's complaints and treatment from 10 November 2004 through 23 August 2005.  It notes on page 3, that in men, "cystitis generally starts with an infection in the urethra that travels to the prostate and on to the bladder.  Antibiotics can clear the bladder but are not able to effectively penetrate the prostate and bladder wall.  Due to the above, consideration must be given to the probability of this being the result of a long term infection that existed prior to his activation.  Therefore, consideration must be given to EPTS/YES."

11.  In a memorandum dated 23 November 2005, the Commander, Task Force 218, Fort Jackson, SC, informed the applicant that the LOD determination for his bladder disease, diagnosed on or about 12 November 2004, had been reviewed and found to be in the LOD.

12.  The progress note provided by the applicant, dated 6 December 2005, states that his medication had improved his condition.  The physician discontinued its use stating his condition was mild interstitial cystitis.

13.  On 6 January 2006, the applicant wrote a 2-page appeal of the MEB dated 21 November 2005.  He, in essence, stated that he disagreed with the MEB findings and recommendation.

	a.  He argues that the DA Form 3947 is wrong because the information contained on it is contrary to the LOD.  He states that on 23 November 2005, he had been provided a memorandum informing him that the LOD had been reviewed and found to be in the line of duty.  Furthermore, he contends that the MEB’s recommendation does not reflect the information presented in the permanent profile completed on 26 October 2005, which indicates he could function as a Soldier and perform the Army physical fitness test.  Despite this, the MEB did not recommend his return to duty, or to return to duty with limitations.

	b.  He argues that the PEB reviewed his case, discontinued their proceedings, and referred it back to the MEB on 16 December 2005.  The issues questioned were about the stability of his medical condition and the degree of severity of his disease.  He contends that he had identified this issue to the MEB in his statement dated 30 November 2005; however, he cannot determine if this information was given any consideration.  He advised the MEB that he had made moderate progress and recommended that the MEB suspend forwarding its findings and recommendations pending an update from a specialist.  The MEB rejected this course of action.

	c.  He argues that there is no supporting evidence showing that his condition existed prior to service or that it should be considered only mild and chronic.

	d.  He argues that the narrative summary is wrong by stating that his condition was "most likely" the result of his having a sub-clinical long term infection, most likely prostate.  Therefore, consideration must be given to EPTS/YES.  He contends that the regulation does not provide for a "most likely" condition; but rather, requires clear and unmistakable evidence that the disease or injury or the underlying condition producing the disease or injury existed prior to the individual's entry into military service.  He further states that such evidence does not exist.  His March 2003 physical examination makes no mention of any such condition and he categorically denies experiencing any problems or symptoms until April 2004.

	e.  He argues that his condition is not  stable.  Diagnosed in 2005, less than 
2 months later the MEB was initiated.  The medication he was prescribed was recommended for a 6 to 9 month treatment.  However, because his condition was mild, the treatment could be reduced.  While he did notice some of the pain had subsided, the other symptoms persisted and have not been remedied.  Contrary to the narrative, he has not reached optimum medical benefit.

	f.  He asked the MEB to reconsider its findings and recommendations and to refer the case back to the commander advising him that it is not prudent to proceed at this time and to dismiss the MEB.  In the alternative, he asked that the MEB be advised to obtain specific information that will indicate his condition has stabilized and that he should be returned as fit for duty.

14.  On 21 February 2006, the applicant appealed the findings of the PEB, dated 31 January 2006; copy unavailable for review.  The applicant concurred with a finding of "Soldier is physically fit" but disagreed with evidence included in his records.  He contended that there were false entries on the case notes and incorrect and unsubstantiated statements in the narrative summary.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his medical records should be corrected by changing DA Form 3947 dated 21 November 2005 to show an LOD: "No" as "Yes," and a finding of EPTS: "Yes," as "No."  He argues that not making these changes would have a long lasting negative bearing on any future medical claims for benefits.

2.  The available evidence clearly shows that on 21 November 2005, the DA Form 3947 was completed showing an entry of "LOD = NO."  In a memorandum to the applicant dated 2 days later, he was informed that the line of duty determination had been reviewed resulting in a change from NO to YES.  This clearly shows that the subject entry on the DA Form 3947 was correct at the time of its entry.  Therefore, there is no error.  Furthermore, there is no apparent long- term harm from this entry because of the commander's subsequent memorandum that updated the earlier LOD decision.  However, to preclude any possibility of an injustice occurring in the future because of this entry, it would be appropriate to issue the applicant a document showing that the entry should have read as LOD = YES.

3.  The applicant’s complete medical records are not available.  The available evidence clearly shows the determination that the applicant's medical condition had existed prior to his entry into military service was the considered opinion of the physician(s) reviewing his case at the time.  As such, it is not an error.  Furthermore, it would be inappropriate for this Board to impose its interpretation/judgment at this late time on what the professional opinions of the attending physician(s) at the time.

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 preparing a document stating that the 21 November 2005 DA Form 3947 is changed to read LOD = YES.

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 any change of the EPTS = YES entry on the DA Form 3947.




      _______ _  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)                                         AR20120001802





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ABCMR Record of Proceedings (cont)                                         AR20120001802



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