BOARD DATE:	 18 February 2014 

		DOCKET NUMBER:  AR20130004839 


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 reconsideration of his previous request for correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was medically discharged for a disability instead of honorably discharged by reason of a "condition – not a disability."

2.  The applicant states:

	a.  He is submitting statements and photographs from when he was stationed in Germany and after he was discharged in addition to two physical profiles and associated medical documentation which support his case.

	b.  He believes the information he is submitting disproves that his condition was pre-existing and also disproves the psychologists theory that he could not deal with the stressors of the military and that removing him from the military would make the issue resolve itself.  He claims he told the doctors the cholinergic urticaria (hives in response to exercise, bathing, staying in a heated environment, or emotional stress) began to present itself toward the end of basic training and it was nowhere near as severe as it has become.

	c.  He further states he was never treated for urticaria prior to service or during basic training.  Although he had minor signs of hives toward the end of one-station unit training (OSUT), the severity was not what it is today or how bad it was before he was discharged.

	d.  According to Army Regulation 40-501 (Standards of Medical Fitness), Soldiers suffering from urticaria/angioedema (swelling similar to hives) which is chronic, severe, and unresponsive to treatment is cause for referral to a medical evaluation board (MEB).  The medical records he submitted show his urticaria was unresponsive to treatment.

	e.  The psychologist's viewpoint had nothing to do with the physical aspects of the urticaria.  He had never seen him prior to the evaluation and had no idea how bad his urticaria gets.

	f.  Department of Defense Instruction (DODI) 1332.38 states that even if his condition was pre-existing, the increase in its severity would be considered aggravated by service.  According to procedures set forth by DOD and the Army, his chain of command followed none of the protocols they were supposed to and simply labeled his condition as pre-existing even though he was never treated for it prior to Germany.

3.  The applicant provides:

* a self-authored statement
* two letters of support
* excerpt from DODI 1332.38 (10 pages)
* excerpt from Army Regulation 40-501 (2 pages)
* Automated DA Form 5286-R (Individual Training Record – Infantry OSUT)
* two DA Forms 3349 (Physical Profile)
* medical documentation (15 pages)
* Army Board for Correction of Military Records (ABCMR) Record of Proceedings Docket Number AR20120005026
* 44 photographs

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20120005026 on 21 August 2012.

2.  The applicant provides photographs, statements, and associated medical and training documentation which were not previously reviewed by the ABCMR.  Therefore, it is considered new evidence and as such warrants consideration by the Board.

3.  The applicant enlisted in the Regular Army on 12 May 2010.  He completed basic combat and advanced individual training as well as the Basic Airborne Course at Fort Benning, GA, and he was awarded military occupational specialty 11B (Infantryman).

4.  On 10 December 2010, the applicant was seen at his local military clinic in Germany for what was most likely believed to be cholinergic urticaria.  He stated his rashes began to occur in basic training and they would flare up when his body heat increased.  He was issued a trial dosage of Zyrtec (cetirizine) to take 30 minutes prior to exercise.

5.  Between January 2011 and March 2011, the applicant was treated at various times at the local clinic for cholinergic urticaria.  He reported urticaria with any increase in body temperature or with mood changes (anxiety, anger, or excitement).  Exercise was a common trigger, but it frequently occurred outside exertion as well.  Initially, treatment with Zyrtec prior to exercise helped, but it was no longer working.  The applicant subsequently received a referral to dermatology and an allergist for testing and to make a recommendation for a permanent physical profile or MEB, if necessary.

6.  On 2 March 2011, the applicant was notified during an event-oriented counseling that he was being considered for administrative separation under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-17 (Other Designated Physical or Mental Conditions).

7.  On 4 March 2011, the applicant was seen by the allergist who clinically felt very comfortable with a diagnosis of cholinergic urticaria and intended to focus efforts on planning for an eventual high-dose antihistamine therapy.  Although improvement was expected, perfect control of the applicant's symptoms was not expected.

8.  On 11 March 2011, the applicant was seen at his local clinic to receive an update to his temporary physical profile.  He stated he tried to take his medication, but it pretty much knocked him out and he could not function while taking the medication.  He further stated he continued to break out when his body temperature would rise.  The physician noted that if the applicant's condition could not be controlled with medication then he would need either a referral to an MEB or discharge under the provisions of Army Regulation 635-200, paragraph 5-17.  The physician noted that he would consult directly with the MEB physician about the applicant's case and recommend a disposition accordingly.  There is evidence that the applicant followed up with the allergist for a medication change.  

9.  On 7 April 2011, the applicant underwent a separation medical examination at the 172nd Brigade Aid Station, Grafenwoehr, Germany.  The physician determined the applicant was not qualified for service and cleared him for administrative separation under the provisions of Army Regulation 635-200, paragraph 5-17, due to cholinergic urticaria.  He was diagnosed as having:

* cholinergic urticaria and prescribed anti-histamines as required
* hyperlipidemia with a recommendation for lifestyle changes and follow up with the Department of Veterans Affairs (VA) in 6 months for a retest

10.  His immediate commander referred him for a mental health evaluation, stating the applicant began noticing complications upon his arrival to the unit in October 2010.  He experienced difficulties performing physical activities due to his allergies and he was taking medication since December 2010 with no change in his condition.

11.  On 13 May 2011, he underwent a mental status evaluation at the U.S. Army Health Center, Grafenwoehr, Germany.  The military clinical psychologist indicated that Axis 1 (psychiatric condition) revealed normal variations in stress and emotional level exacerbating urticaria.  The psychologist stated:

* that from a behavioral health standpoint, the applicant was fit for duty, including deployment
* the applicant had no cognitive impairments, but his pre-existing medical-dermatological condition was highly sensitive to normal variation in stress and emotional levels
* the applicant was able to understand and participate in administrative proceedings
* the applicant's medical condition was highly reactive to normal and expected variations in day-to-day stress levels
* the applicant's interaction of his medical condition with the normal changes in his psychological state, such as stress, anger, frustration, and even strong positive feelings made him poorly suited to meet the demands of active duty service

12.  On 9 June 2011, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him for other designated physical or mental conditions.  The specific reason for discharge was based on the recommendation by the psychiatrist due to normal variations in stress and emotion levels exacerbating his urticaria.  He recommended an honorable discharge.

13.  The applicant acknowledged receipt of the separation notification memorandum by reason of other designated physical or mental condition under the provisions of Army Regulation 635-200, paragraph 5-17, and subsequently consulted with legal counsel.  He was advised of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of his rights.  He acknowledged he understood that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him.

14.  Subsequent to this acknowledgement, the applicant's immediate commander initiated separation action against him under the provisions of Army Regulation 635-200, paragraph 5-17.  He recommended the issuance of an honorable discharge.

15.  On 9 June 2011, the intermediate commander recommended approval of the applicant's separation with an honorable discharge.

16.  Consistent with the chain of command's recommendations, the separation authority approved the applicant's separation under the provisions of Army Regulation 635-200, paragraph 5-17, on 10 June 2011 by reason of other designated physical or mental condition with an honorable discharge.

17.  The applicant was honorably discharged on 14 August 2011 after completing 1 year, 3 months, and 3 days of active service.  His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, paragraph 5-17, by reason of a condition, not a disability.

18.  There is no evidence in the applicant's available medical records which shows he received a permanent physical profile or referral to an MEB.

19.  The applicant provides:

	a.  a statement from his spouse who attests to the negative impact the cholinergic urticaria has had on the applicant and his family;

	b.  a statement from his mother who states the applicant played sports since he was 6 years old and he was never diagnosed or treated for asthma or urticaria.  She further states the applicant lived in a home without air conditioning for 20 years without any incident of hives or rashes;

	c.  numerous photographs;

	d.  Extracts from DODI 1332.38 and Army Regulation 40-501 which he believes support his argument;

	e.  an Automated DA Form 5286-R which shows the applicant satisfactorily completed all basic combat training tasks and successfully completed the Army Physical Fitness Test on 9 August 2010;

	f.  DA Forms 3349, dated 11 March 2011 and 3 May 2011, which show he received temporary physical profiles for a rash with exertion/heat;

	g.  Medical Progress Notes printed on 7 November 2012 at the Detroit VA Medical Center used in the application for disability benefits.  Based on the applicant's history and examination, along with review of medical records, the claimed condition of cholinergic urticaria was deemed at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness; and

	h.  Medical Progress Notes, dated 6 February 2013, which show the applicant was seen for a follow-up visit for urticaria.  He had tried several antihistamines with no relief.  Since his last visit in November 2012, he reported he had urticaria about 2-3 times a week, his duration of hives was 90 minutes to 2 hours and resolved without medication.  He was assessed with chronic cholinergic urticaria refractory to antihistamines and doxepin.  The notes indicated the applicant was aware of the triggers and to avoid activities that might bring on urticaria.  He was advised to quit smoking in order to reduce his pulmonary symptoms.  These  VA documents indicated he still is not on medication.

20.  Army Regulation 635-200, paragraph 5-17, states commanders who are special court-martial convening authorities may approve separation under this paragraph on the basis of other physical or mental conditions not amounting to disability that potentially interfere with assignment to or performance of duty.  A recommendation for separation must be supported by documentation confirming the existence of the physical or mental condition.  Members may be separated for physical or mental conditions not amounting to disability, sufficiently severe that the Soldier's ability to effectively perform military duties is significantly impaired.

21.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army's 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.

22.  Army Regulation 635-40, paragraph 3-1, outlines the standards of unfitness because of physical disability.  It states the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  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.  When a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement creates a presumption that the Soldier is fit.

23.  Army Regulation 635-40, appendix B-3, paragraph 3c, states there are many conditions, such as asthma, hypertension, epilepsy, and diabetes, which may be improved sufficiently by treatment to prevent disability, or to significantly decrease it.  If a Soldier unreasonably fails or refuses to take prescribed medications, or to observe prescribed restrictions on diet, activities, or the use of alcohol, drugs or tobacco, that portion of the disability that results from such failure or refusal will not be rated where it is clearly demonstrated that the Soldier was advised clearly and understandably of the medically proper course of treatment, therapy, medication or restriction and the Soldier’s failure or refusal was willful or negligent and not the result of mental disease or a physical inability to comply.

24.  Army Regulation 40-501 states situational maladjustments due to acute or chronic situational stress do not render an individual unfit because of physical disability, but may be the basis for administrative separation if recurrent and causing interference with duty.  Paragraph 3-38ac further states urticaria is cause for referral to an MEB if it is found to be chronic, severe, and not responsive to treatment.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for reconsideration of his previous request for correction of his DD Form 214 to show he was medically discharged for a disability instead of honorably discharged by reason of a "condition – not a disability" has been carefully reexamined.  However, a review of the new evidence and arguments fails to provide a compelling evidentiary basis which would support revising the original decision of the Board.

2.  The purpose of the PDES is to maintain an effective and fit military organization with the maximum use of available manpower, provide benefits for eligible Soldiers whose military service is terminated because of a service-connected disability, and provide prompt disability processing while ensuring the rights and interests of the Army and the Soldier are protected.



3.  As such, a Soldier who suffers an injury or an illness while serving on active duty is retained in the service until he or she has attained maximum hospital benefits and completion of a disability evaluation if otherwise eligible for referral into the disability system.  Medical officials are responsible for counseling Soldiers concerning their rights and privileges at each step in the disability evaluation process beginning with the decision of the treating physician to refer the Soldier to an MEB and until final disposition is accomplished.

4.  There is insufficient evidence in the available records and the applicant did not provide sufficient evidence to show he was ever diagnosed with a medical condition which was of such severity that it would have warranted his entry into the PDES.  The evidence contained in the applicant's medical records shows his physician inquired with the MEB physician and allergist regarding the possible need for an MEB or discharge in accordance with Army Regulation 635-200, paragraph 5-17.

5.  Although neither recommended referral to an MEB, the allergist appeared confident in achieving satisfactory results medically and the psychiatrist elicited a strong history of an overlying emotional component to the applicant's malady and recommended discharge in accordance with Army Regulation 635-200, paragraph 5-17.  The evidence of record shows an MEB was contemplated and was apparently considered inappropriate by the medical authorities present.

6.  The issue is not whether or not his condition existed prior to service, but whether he should have been medically separated via the PDES.  The available evidence shows the applicant was not compliant with the prescribed medications.  When he was offered a paragraph 4-17 discharge he accepted the discharge.  Had he desired to remain on active duty to pursue a disability separation he should have returned to the allergist to modify his treatment or determine that he was not treatable.

7.  Absent evidence to the contrary, there is a presumption that the applicant's separation processing was accomplished in accordance with applicable regulations and that he received all required medical examinations and screening necessary prior to his discharge in 2011.

8.  In view of the foregoing, there remains an insufficient evidentiary basis to support amendment of the original Board decision and/or to grant the 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 the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20120005026, dated 21 August 2012.



      ___________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)                                         AR20130004839



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ABCMR Record of Proceedings (cont)                                         AR20130004839



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