IN THE CASE OF:	   

		BOARD DATE:	  29 October 2013

		DOCKET NUMBER:  AR20130000047 


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 record to show he was medically retired instead of honorably discharged with entitlement to severance pay.

2.  The applicant states the board's decision was based on the evidence of findings and the validity of the claims as related to his being fit for duty.  Without question, the lack of a common cause made the evaluation and determination of a decision a greater challenge.  In defense of all involved, the decisions, findings, and evaluations were appropriate and produced accurate results and as such, the board made their decisions on the merits of his case.  He also states, in effect:

* he was medically separated with a 10 percent disability with severance pay, but was not given a medical diagnosis
* he has an autoimmune disease as the result of his psoriasis
* his medical record outlines multiple conditions and symptoms that complicated a systemic problem that was not identified or diagnosed
* only one course of action was examined despite a documented medical history demonstrating multiple origins
* had additional causes been given an appropriate medical diagnosis, it  would have radically changed the board's rating to medical retirement
* the many normal or negative exams raised questions about the validity of his claims resulting in unnecessary psychological trauma
* 
his medical separation completely removed the opportunity to see what was possible for him to achieve during his career
* he was in the top 5 percent of his career field and class
* the Medical Evaluation Board (MEB) process resulted in trauma to his physical and psychological health
* his negative feelings and beliefs in the medical system resulted in his going untreated for many years following separation

3.  The applicant provides:

* a 5-page self-authored statement
* 90 pages of Standard Forms (SF) 600 (Medical Record) and allied documents
* a DD Form 214 (Certificate of Release or Discharge from Active Duty)
* a DA Form 3947 (MEB Proceedings)
* a DA Form 199 (Physical Evaluation Board (PEB) Proceedings)
* 12 DA Forms 2166-7 (Noncommissioned Officer Evaluation Report (NCOER))
* two DA Forms 1059 (Service School Academic Evaluation Report)
* a DA Form 638 (Recommendation for Award)
* two Department of Veterans Affairs (VA) Forms 21-4138 (Statement in Support of Claim)
* an Office of Personnel Management (OPM) Form 630 (Application to Become a Leave Recipient Under the Voluntary Leave Transfer Program) and allied documents
* nine pages of German untranslated medical documents
* three DA Forms 3154 (Hospital Invoices and Receipts)
* 45 pages of website articles
* two DA Forms 3349 (Physical Profile)

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 enlisted in the Regular Army on 3 July 1986.

3.  He submitted:

	a.  12 NCOERs for the rating periods beginning in November 1989 and ending in March 1998, that all show in Part Va (Overall Performance or Potential) he was always rated as fully capable or among the best.

	b.  two DA Forms 1059 that show he exceeded course standards for both the Primary Leadership Development Course and the Basic NCO Course.

	c.  a DA Form 638 that shows he was awarded the Meritorious Service Medal for service as an Assistant After Action Review Analyst from 7 September 1993 to 9 April 1998.

	d.  90 pages of his SFs 600 and allied documents, dated between 14 October 1987 and 15 September 1997, that noted his diagnosis and treatment of:

* a history of psoriasis with lesions on knees, elbows, genital areas, and legs
* tinnitus
* vertigo
* sensorineural hearing loss
* an appendectomy

	e.  two DA Forms 3349, dated:

		(1)  20 May 1997, that show he received an updated permanent profile due to his medical condition of mild-moderate to severe sensorineural hearing loss with assignments of no exposure to excess of 85 decibels or weapons without the use of properly-fitted hearing protections and an annual hearing test required.

		(2)  28 October 1997, that show a profile was initiated to add central vertigo-etiology was unclear to his medical condition.

	f.  a 6-page memorandum from Weed Army Community Hospital, dated
6 February 1997, recommending he appear before an MEB due to diagnoses of moderate to severe sensorineural hearing loss and, tinnitus; vertigo, peripheral versus central etiology still remains unclear; and psoriasis, limited body areas of the elbows and groin.

4.  On 9 February 1998, after consideration of the applicant's clinical records, laboratory findings, and physical examination, an MEB found the applicant had the following medical conditions/defects and listed his diagnoses as:

* moderate to severe sensorineural hearing loss
* tinnitus
* vertigo, peripheral versus central etiology still remains unclear
* psoriasis, limited body areas of the elbows and groin
* medically unacceptable in accordance with Army Regulation 40-501 (Standards of Medical Fitness) and referred him to PEB

5.  On 25 February 1998, an informal PEB found:

	a.  the applicant unfit for the one listed condition of vertigo, precise etiology remains unclear, manifested by tinnitus, occasional dizziness, of about  2 years in duration and rated it at 10 percent.  The applicant was counseled on the PEB findings and his rights to a formal hearing, and on 26 February 2003, he concurred with the PEB findings and waived his right to a formal hearing.

	b.  the conditions listed as MEB diagnosis number 1 (moderate to severe sensorineural hearing loss) and number 4 (psoriasis, limited body areas of the elbows and groin) were considered by the PEB and found to not be unfitting and therefore not ratable.

6.  He was honorably discharged on 9 April 1998 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) by reason of disability with severance pay.  He completed 11 years, 9 months, and 7 days of creditable active service.  His DD Form 214 shows he received disability severance pay in the amount of $44,297.20.

7.  He submitted:

	a.  two VA Forms 21-4138, dated 21 February 2012 and 22 May 2012, wherein he essentially indicates:

		(1)  he filed for and was compensated by the VA for his service-connected disabilities, but not his unidentified or undiagnosed conditions.

		(2)  in 2010, he was diagnosed with inflammatory arthritis caused by psoriasis.

	b.  OPM Form 630, dated 9 March 2012, and allied documents that show he applied for and was approved to be a recipient under the voluntary leave transfer program 

	c.  nine pages of German untranslated medical records, dated from 27 July 2011 to 5 December 2012, that indicate he was evaluated and diagnosed with psoriasis vulgaris.

	d.  three pages of translated documents regarding a consultation with internal medicine/rheumatology, dated 9 January and 5 May 2012, that indicate the applicant was diagnosed with psoriasis associated with HLA-B-27 positive SpA, psoriasis vulgaris, and migraines.

	e.  three DA Forms 3154, dated 8 November 2012, that show the dollar amounts and dates he was billed for medications.

	f.  45 pages of website documents that define psoriatic arthritis and issues related to psoriasis as a condition involving inflammation (arthritis) that usually occurs in combination with a skin disorder called psoriasis.

8.  Army Regulation 635-40 sets forth policies, responsibilities, and procedures in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  Paragraph 3-1 (Standards of unfitness because of physical disability) of this regulation provides that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his record should be corrected to show he was medically retired based on the misdiagnosis and treatment of his psorasis instead of honorably discharged with entitlement to severance pay.

2.  Evidence of record shows he was treated for and referred to an MEB for several conditions to include his history of psoriasis.  The PEB reviewed all the available and appropriate evidence and only found him unfit for vertigo.  His psoriasis was not found to be an unfitting condition.  The PEB recommended separation with entitlement to severance pay with a 10 percent disability rating.  He agreed with the PEB's findings and recommendations.

3.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and can only be accomplished through the physical disability evaluation system.  Since this rating was less than 30 percent, by law he was only entitled to severance pay.

4.  The applicant's physical disability evaluation was conducted in accordance with law and regulations and the applicant concurred with the PEB's findings and recommendations.  There is no error or injustice in this case.

5.  In view of the foregoing, there is an insufficient evidentiary 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:

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)                                         AR20130000047



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ABCMR Record of Proceedings (cont)                                         AR20130000047



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