BOARD DATE:	  17 April 2014

		DOCKET NUMBER:  AR20130012119 


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 his Physical Evaluation Board (PEB), conducted during the period April 2010-March 2012, be expunged from his records and that a new PEB be conducted.  

2.  The applicant states:

	a.  Along with never actually having a Medical Evaluation Board (MEB), the process that was done referred to as "signatures" was not supported by any regulation or law. 

	b.  Multiple negligent people were assigned to his case and no corrections of these people's actions were ever undertaken although it was requested on multiple occasions. 

	c.  There are over a dozen medical conditions that were never evaluated due to incompetence, negligence, and a desire to do the least that could be gotten away with.  When he requested reviews, the reviews were either never done or there was a refusal to conduct the required background work prior to the reviews.  
	d.  He was told to "go have the Department of Veterans Affairs (VA) do it" when it came to making corrections or evaluating the missing conditions.  He has a complete statement of what occurred during his "signatures," over 22 pages in length.

	e.  He never had the actual applicable disability evaluation that is supposed to occur.  Instead he had another evaluation referred to as "signatures" done to him.  This includes a willful lack of conducting a full and complete medical evaluation as required.

	f.  He brought to multiple people's attention the negligent actions of the staff and doctors and he was told things like:

* it does not matter anyway
* we are too busy
* the doctor is a friend of mine so do not worry about it
* they should not have done a medical evaluation anyway
* you do not know how to read the regulations
* those are not medical conditions
* go have the VA do it
* that is how we do it here

	g.  Multiple required actions for an MEB were not completed to include no written statement of his condition.  He requested an independent medical review but this was not done although he requested it twice.

	h.  Medical records were not utilized and he was told twice that the use of medical records was optional.  Medical records were not made available to him at the beginning when it was required.  Doctors invented medical actions while leaving out other significant actions and reviews were not completed or just signed off on.

	i.  His case was delayed due to multiple negligent PEB Liaison Officers, doctors, supervisors, and other staff.  This resulted in the Compensation and Pension (C&P) examination being re-conducted as it was delayed beyond the allowed 90 days.  In addition, his primary condition had changed significantly (also noted as a reason the C&P examination was to be re-conducted) but he was told by a colonel that "we will never re-conduct a C&P examination." 

	j.  After noting the level of incompetence and negligence displayed, he requested to be transferred to a different medical treatment facility but after nearly no reviews of his request, he was told "there are no other medical treatment facilities.”  He was sent back to the same doctor who had demonstrated a lack of desire to conduct an adequate medical evaluation and had invented actions/procedures while willfully not utilizing available medical records.

	k.  When he brought to the doctor's attention that there was a long list of medical conditions not evaluated, the doctor told him in no uncertain terms that he would not evaluate them.  He also brought this to the Warrior Transition Unit (WTU) chain of command's attention that these conditions were not evaluated as well as other negligent actions and he was told "there should not have been an MEB in your case" as a reason why these actions would not be corrected.

	l.  When he requested a formal PEB, the letter of instructions directed him to inform his medical treatment facility and/or chain of command of any unevaluated conditions (having unevaluated conditions evaluated was the primary reason he requested a formal PEB).  After making his request to the medical treatment facility, he never heard a reply, and he has not to this day, and he was told by his WTU battalion commander that these conditions would not be evaluated and to "go have the VA do it."  The bottom line is no medical evaluation was ever done in his case, just "signatures."

3.  The applicant provides a 37-page narrative; timeline of MEB Proceedings; a letter from the Commander, U.S. Army Medical Department Activity, Fort Carson, Colorado; and an MEB Narrative Summary.

CONSIDERATION OF EVIDENCE:

1.  On 8 July 2009, the applicant was called to active duty from the U.S. Army Reserve, in the rank of major/O-4 

2.  An MEB Narrative Summary dated 10 January 2010 shows the applicant was diagnosed with 13 conditions, 12 of which met retention standards.

3.  On 23 August 2011, the applicant was evaluated by a PEB.  He was found unfit for duty with the following two diagnoses:

	a.  Wegener's Granulomatosis to include rhinitis, rated 100 percent.

	b.  Renal Involvement of Wegener's Granulomatosis, rated 60 percent.

	c.  Wegener's Granulomatosis to include pan sinusitis and sinus headache, rated 50 percent. 

	d.  Residuals of right ankle fracture, zero percent.

4.  The PEB recommended his retirement due to permanent disability with a combined rating of 100 percent.

5.  On 22 November 2011, the PEB administratively amended his DA Form 199 (PEB Proceedings) to correct item 8b (Disability Description).  The administrative correction did not change his disposition or rating.  Item 8b noted that his other 11 conditions met medical retention standards and were not unfitting.

6.  On 16 March 2012, he was retired accordingly.  The Narrative Reason for Separation on his DD Form 214 shows the entry "Disability, Permanent (Enhanced)."

7.  He provides a 37-page narrative in which alleges multiple administrative and regulatory irregularities in his MEB/PEB process.  He also expressed his discontent with his MEB/PEB proceedings.  

8.  The Veterans Affairs Schedule for Rating Disabilities (VASRD) is used by the Army and the VA as part of the process of adjudicating disability claims.  It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation.

9.  Army Regulation 40-501 (Standard of Medical Fitness) governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the VASRD.  Ratings can range from 0 percent to 100 percent.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his PEB Proceedings conducted during the period April 2010-March 2012 be expunged from his records and that a new PEB be conducted.  

2.  The evidence shows the applicant was found unfit for further military service with a 100 percent disability rating for two medical conditions, meaning that he will receive the highest level of compensation allowed by law.  

3.  The applicant's contentions were noted; however, based on his 100 percent disability rating, which is the maximum disability rating allowed by law, there is no effective relief that can be provided by expunging his MEB/PEB proceedings.

4.  Further, his MEB Narrative Summary shows that 13 medical conditions were considered, but 11 of them were found to be not unfitting.  The PEB also considered those additional 11 conditions but also found them to be not unfitting.
5.  Based on the foregoing, there is no basis to grant the requested relief.

6.  It should also be mentioned that expunging his MEB/PEB proceedings could result in the revocation of his placement on the Permanent Disability Retired List, thereby suspending his retirement benefits until such time as another MEB/PEB could be convened and approved.

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)                                         AR20130012119



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ABCMR Record of Proceedings (cont)                                         AR20130012119



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