BOARD DATE:	  24 January 2013

		DOCKET NUMBER:  AR20120011808 


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, a change of the diagnosis leading to her retirement for temporary disability and a change of her reentry (RE) code.

2.  She states she received an honorable discharge by reason of temporary disability on 21 March 2001.  (Note:  She was actually retired for temporary disability.)  She was assigned RE code "4."  Her medical records indicate she was diagnosed with schizophreniform disorder and that she might need medication indefinitely.  Since being retired, she has graduated from a university with a Bachelor of Science degree in biology and has completed a Master of Science in Continuing Education (MSCE) degree in counseling and psychology.  She has not taken any antipsychotic medication since being retired in 2001, and she has not been hospitalized due to any mental health issues.  She agrees her behavior was not normal, but disagrees with the diagnosis.  She states the things she experienced in 2000 and 2001 were tough and embarrassing.  She is older and more mature and has decided it is important to her, and her children, to have her RE code changed.

3.  She provides:

* Air Force (AF) Form 618 (Medical Board Report)
* two DA Forms 199 (Physical Evaluation Board (PEB) Proceedings)
* self-authored statement
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* MSCE diploma
* university transcript
* Narrative Summary

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 24 August 2000, the applicant enlisted in the Regular Army (RA).  

3.  On 1 March 2001, Headquarters, U.S. Army Medical Department Center and School and Fort Sam Houston, Fort Sam Houston, TX, issued Orders 060-0105 placing her on the Temporary Disability Retired List (TDRL) effective 22 March 2001 with a 30 percent (%) disability rating.

4.  Her DD Form 214 shows she was honorably retired for temporary disability on 21 March 2001.  The form shows in:

* item 25 (Separation Authority) – "AR 635-40, PARA 4-24B(2)"
* item 26 (Separation Code) – "SFK"
* item 27 (RE Code) – "4"

5.  She provides:

	a.  A Narrative Summary showing she was admitted to a U.S. Air Force (USAF) medical center on 5 January 2001 for neuropsychiatric evaluation and treatment of incipient psychosis and discharged on 24 January 2001.  She was diagnosed with schizophreniform disorder with good prognostic features.  The examining psychiatrist recommended she remain in psychiatric care and stated she may need medication indefinitely.  She was found "competent for pay and records."  The Narrative Summary also shows she was complaining of a herpes outbreak when she was admitted.  She was treated with Acyclovir for 3 days, and the treatment was discontinued due to side effects.  

	b.  An AF Form 618 showing a Medical Board convened at a USAF medical center on 1 February 2001.  The board established a diagnosis of "schizophreniform disorder with good prognostic features" with an approximate date of origin in December 2000.  The board recommended she be referred to the U.S. Army authority for further review and disposition.

	c.  A DA Form 199 showing a PEB convened on 13 February 2001 to consider her condition.  The PEB recommended a 30% disability rating based on her diagnosis of schizophreniform disorder.  The PEB found her condition was not sufficiently stable for final adjudication and recommended she be placed on the TDRL.  The PEB recommendations were approved on 21 February 2001.  

	d.  A second DA Form 199 showing a PEB convened on 15 November 2002.  The form shows a psychiatrist made a correction of her previous diagnosis from schizophreniform disorder to major depression.  The PEB recommended a 0% disability rating based on a diagnosis of major depression with history of psychotic features, which was in full remission; found she remained unfit to reasonably perform her military duties; and recommended she be separated with severance pay.  The PEB recommendations were approved on 2 January 2003.  

	e.  A self-authored statement showing, in part, she researched Acyclovir and found its side effects include:  aggressive behavior, decreased consciousness, confusion, hallucinations, and mental or mood changes.  She states these are symptoms she was suffering from at the time of her hospitalization, and she was taking this medication on and off since being diagnosed with herpes.  She states she took this medication during basic training and advanced individual training.

6.  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.  Separation by reason of disability requires processing through the PDES.

	a.  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.  

	b.  The regulation also prescribes the function of the TDRL.  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. 
A Soldier's name may be placed on the TDRL when it is determined that the Soldier is qualified for disability retirement but for the fact his or her disability is determined not to be of a permanent nature and stable.  

	c.  A Soldier on the TDRL must undergo a periodic medical examination and PEB evaluation at least once every 18 months to decide whether a change has occurred in the disability for which the Soldier was temporarily retired.

	d.  The regulation provides that a Soldier will be removed from the TDRL and separated with severance pay if the Soldier – 

		(1)  Has less than 20 years of service.

		(2)  Is unfit because of the disability for which the Soldier was placed on the TDRL; and either the disability has stabilized at less than 30%; or the disability, although not stabilized, has improved so as to be ratable at less than 30%.  A former RA enlisted Soldier separated under this authority may request a waiver to reenlist.

7.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD codes to be used for these stated reasons.  The regulation states separation code "SFK" applies to Soldiers retired for temporary disability under the provisions of Army Regulation 635-40.

8.  The SPD/RE Code Cross Reference Table in effect at the time of the applicant's retirement for temporary disability shows that Soldiers given an SPD code of "SFK" were to be given an RE code of 4.

9.  MedlinePlus, a website maintained by the U.S. National Library of Medicine, provides a description of Acyclovir.  It states Acyclovir is used to decrease pain and speed the healing of sores or blisters in people who have varicella (chickenpox), herpes zoster (shingles; a rash that can occur in people who have had chickenpox in the past), and first-time or repeat outbreaks of genital herpes.  The website lists side effects of the drug including, but not limited to:

* agitation 
* hallucinations (seeing things or hearing voices that do not exist)
* confusion
* aggressive behavior

DISCUSSION AND CONCLUSIONS:

1.  The available records show the applicant was originally diagnosed with schizophreniform disorder and placed on the TDRL based on this condition.  She has provided records showing that, while she was on the TDRL, a psychiatrist corrected her diagnosis from schizophreniform disorder to major depression.  Major depression was the unfitting condition that served as the basis for her separation with severance pay.  

2.  The record shows she was treated with Acyclovir for 3 days, and the treatment was discontinued due to side effects.  There is no evidence showing that the side effects of Acyclovir were the cause of the behavior diagnosed as schizophreniform disorder.  In any case, the diagnosis was later changed.

3.  The applicant possesses records that properly document her corrected diagnosis as major depression.  Because the corrected diagnosis is already a matter of record, there is no basis for correcting the diagnosis she received prior to being placed on the TDRL.

4.  The applicant was placed on the TDRL, which required that she be assigned RE code "4."  In the absence of evidence showing error in the assignment of this RE code, there is no basis for changing it.

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)                                         AR20120011808





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ABCMR Record of Proceedings (cont)                                         AR20120011808



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