PROCEEDINGS

	IN THE CASE OF:   

	BOARD DATE:            15 July 1999                  
	DOCKET NUMBER:   AR1998013486

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Loren G. Harrell		Director	
	Mr. David E. Weightman		Analyst	

  The following members, a quorum, were present:

	Mr. George D. Paxson		Chairperson	
	Ms. Jennifer L. Prater		Member	
	Ms. Debra Williams		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests correction of his records to show he was not discharged on 22 October 1991, that he was retained on active duty at the time for medical disability processing, that he was placed in TDRL (Temporary Disability Retired List), that he was retired with 100% disability and placed on the permanent disability retired list effective 14 February 1997, and that he was issued a DD Form 214 (Report of Separation) for this period of time.

3.  The applicant states he was in excellent health before entering active duty on 12 December 1990, and that his disability was incurred/caused while in the Gulf war.  He was disabled when he returned from the Gulf war and he should have been retained on active duty and/or placed on the TDRL until he was properly evaluated and processed for disability retirement.  He submits his retirement order dated 3 February 1997 and his DD Form 214 dated 22 October 1991 in support of his request.

4.  The applicant was born on 2 November 1939 and was appointed in the Army effective 18 September 1964.  His branch was Veterinary Corps and he served on extended active duty as a Reserve officer from 4 January 1965 to 8 April 1968, and from 8 July 1974 to 15 November 1977.  He was otherwise a drilling reservist.  His Personnel Qualification Record shows he attained the rank of colonel effective 30 July 1987.

5.  The applicant’s automated Personnel Qualification Record shows 20 years of qualified service certified on 5 May 1990.

6.  On his Report of Medical History evaluation for retention (quadrennial over 40), conducted on 17 November 1990, he indicated he was in excellent health.  He showed several operations, including treatment in 1990 for an undiagnosed gastro-enteritis.

7.  On 16 November 1990 he was ordered to active duty for 180 days in support of Operation Desert Shield/Desert Storm.  His applicable DD Form 214 shows he entered on active duty effective 1 December 1990, and he served in Southwest Asia – Saudi Arabia, from 27 January to 5 (sic) June 1991.

8.  He reported to medical authority on 3 June 1991 complaining of joint pain and spasms.

9.  Also on 3 June 1991 he received a medical examination for release from active duty.  He was found qualified for discharge from active duty, with a physical category and profile of A-111111.

10.  On 5 June 1991, based on a demobilization evaluation, the applicant was not medically cleared for separation, with further disposition pending.
11.  On 18 September 1991 the applicant was medically cleared for release from active duty, noting his medical problems should resolve, and with follow-up with the Walter Reed Army Medical Center (WRAMC) as necessary.

12.  On 23 September 1991 it was noted by medical personnel that further evaluation continues and further testing and observation are necessary to define his disease and determine optimal therapy, and that an MEB (medical evaluation board) and referral to a PEB (physical evaluation board) will be done as an outpatient.

13.  The applicant continued to receive follow-up care at the WRAMC.

14.  On 22 October 1991 the applicant was released from active duty based upon completion of the required service, with accrued ordinary/transition leave.  He was transferred/returned to his Reserve unit, the 352d CA CMD, Riverdale, Maryland.  He was issued a DD Form 214 for this active duty service.  He was credited with 10 months and 22 days of net active service this period.

15.  The applicant rejoined his Reserve unit and participated in his Reserve training until on or about 17 September 1993.  His Chronological Statement of Retirement Points as of 9 December 1994 shows he was credited with 99 points for 1991 to 1992 and 98 points for 1992 to 1993.  It also shows he had 26 years of qualifying service and 30 years of longevity service.

16.  On 6 January 1994 an MEB referred the applicant’s case to a PEB.

17.  On 8 April 1994 an informal PEB found the applicant physically unfit and rated his condition as 20 percent disabling.  Separation with disability severance pay was recommended.  He disagreed and demanded a formal PEB.  The case was returned to the medical treatment facility for further review.

18.  On 8 May 1995 he applied to the Correction Board for medical retirement.  His request was administratively closed since his case remained under review within the medical disability system.

19.  On 7 March 1996 the Director, Health Services Directorate, Office of The Surgeon General (OTSG) advised the Board by memorandum that OTSG consultants agreed the applicant should have been referred to an MEB/PEB.

20.  On 22 October 1996 a PEB found the applicant 100 percent disabled with “Systemic lupus erythematosus [SLE] manifested by polyarthritis, positive double stranded DNA, hypocomplementemia, history of proteinuria, DNS involvement with partial complex seizures and vestibular neuropathy.”  VA code 6350.  It concluded that his medical condition prevented satisfactory performance of duty in his grade and specialties.  It also found the disability was not caused by an instrumentality of war or from a combat related injury, and that he was a member of the Reserve.

21.  SLE is a chronic and potentially fatal connective tissue inflammatory disease in which immunological reactions cause abnormalities of blood vessels and connective tissue involving the joints, kidneys, nervous system, and skin.  Webster’s New World Dictionary describes lupus erythematosus as “usually a chronic inflammatory disease in which immunological reactions cause abnormalities of blood vessels and connective tissue:  the systemic form commonly involves the joints, kidney, nervous system, and skin”.

22.  On 28 October 1996 the applicant concurred with the PEB findings and recommendations and waived a formal hearing of his case.

23.  The PEB erroneously showed his status as Active Guard/Reserve.  He was not on active duty at the time.

24.  On 3 February 1997 the PEB was approved by the Total Army Personnel Command Physical Disability Branch, by order of the Secretary of the Army, and orders were published for permanent physical disability of the applicant for 
100 percent disability and placement of the Retired List in the rank of colonel on 
14 February 1997.

25.  The orders showed his total combined active duty service of 12 years, 11 months and 23 days, and his total Reserve and active duty service combined as 
32 years, 4 months, and 27 days.

26.  The orders also showed the disability as not caused by an instrumentality of war.

27.  There is no record of a line of duty investigation conducted in this case.

28.  The applicant started receiving $1,018.00 monthly from the Social Security Administration (SSA) for disability in February 1994.

29.  The Department of Veterans Affairs awarded the applicant 100 percent disability at the rate of $1,774.00 on 1 September 1993, for Chronic Fatigue Syndrome.

30.  Title 10, United States Code, section 1202, provides for the placement of a member on the Temporary Disability Retired List when the disability may be permanent.

31.  The DVA Schedule for Rating Disabilities (VASRD) shows that SLE is rated under code 6350.

32.  Army Regulation 635-40 governs the evaluation for physical fitness of soldiers who may be unfit to perform their military duties because of physical disability.

33.  Requirements for placement on the TDRL, for a period not to exceed 5 years, are the same as for permanent retirement, that is to say, the individual must be found physically unfit to perform the duties of his or her office, grade, rank or rating with a disability rated at 30 percent or higher.  Additionally, however, the unfitting condition must be determined at the time of evaluation to be temporary or not stable for rating purposes which could result in a different rating at the time of a subsequent evaluation. The soldier must be unfit to perform the duties of his or her office, grade, rank, or rating at the time of an evaluation.  The condition must be determined to be temporary or unstable.

34.  A soldier who is determined to be physically fit will not be placed on the TDRL regardless of the severity of the physical defects or the fact that they might become unfitting were the soldier to remain on active duty for a period of time.

35.  Disability processing may be provided to soldiers who incur or aggravate an injury or disease in the line of duty while performing inactive or active duty training.

36.  Unfitting conditions must have been the proximate result of performing the Reserve duty for purposes of disability processing of a Reservist.

37.  If the unfitting condition is the result of a disease rather than an injury, the soldier is ineligible for disability processing unless a medical authority has decided that the disease is service-connected.

38.  A Reserve soldier not on extended active duty who is unable to perform the duties of his or her office, grade, rank or rating because of physical disability may be referred for medical evaluation, including MEB or PEB processing.

39.  Army Regulation 635-5 governs the issuance of DD Forms 214.  It specifies that DD Forms 214 will be completed for all personnel who are discharged, retired or released from the Active Army.

40.  On 7 August 1997 the applicant’s request for a DD Form 214 for his retirement was denied by the National Personnel Records Center.  It was stated that “No Separation Document was issued at Retirement from USAR, DD 214s issued for Active Duty only…..see attached retirement points.”
41.  On 12 April 1999 the Army Review Board Agency (ARBA) Medical Advisor expressed the opinion that the applicant should have had an MEB in September 1991, prior to separation from active duty, and that while it is questionable that evaluation of the applicant prior to his separation from active duty would have led to placement on the TDRL, it may have been prudent to have done so.  He also noted the 2 ½ year delay in the handling of the applicant’s case by the medical authorities.

42.  On 24 June 1999 the applicant concurred with the findings of the advisory opinion.

CONCLUSIONS:

1.  The applicant is not entitled to correction of his records to show he was not discharged on 22 October 1991, that he was retained on active duty at the time for medical disability processing, that he was placed on the TDRL, that he was retired with 100% disability and placed on the permanent disability retired list effective 14 February 1997, and that he was issued a DD Form 214 (Report of Separation) for this period of time.  In view of all of the circumstances in his case, he has not sufficiently shown error, injustice or inequity for the relief he is requesting.

2.  Notwithstanding the opinion in this case from the ARBA Medical Advisor, the applicant was found fit for separation from active duty on 22 October 1991 and he was properly separated at that time based upon completion of his tour of extended active duty.  The medical evidence of record establishes that the applicant was physically fit at the time of his separation from active duty.  Pertinent regulations specify that a soldier who is determined to be physically fit will not be placed on the TDRL regardless of the severity of the physical defects or the fact that they might become unfitting were the soldier to remain on active duty for a period of time.  Having been determined to be fit for discharge he was not referred for disability processing.  Having not been referred for disability processing he was not entitled to retention on active duty.  His active duty tour expired and he was released from active duty.  He was properly released from active duty and he received follow-up care.

3.  Having been found medically fit for service upon his release from active duty on 22 October 1991 is not disputed by the Board.  His complaints of illness were considered by medical personnel, but not found disabling at the time.  Upon his release he was transferred back to his Reserve unit and continued to drill in an IDT and ADT status for a period of 2 years, until approximately September 1993. The reason for his termination of drill with his unit is not stated.  He also qualified for benefits from the SSA and the DVA in February 1994 and September 1993, respectively, well subsequent to his separation from active duty.  The Board concludes that his service was not interrupted on 22 October 1991 based on disability.

4.  The Board notes that while the PEB recommended 100 percent disability, it did not find the applicant entitled to the disability based on an instrumentality of war.

5.  In his Reserve status the applicant was then treated as all other Reservists in relation to unfitness and disability processing.  He was referred to an MEB on 
6 January 1994 and to an informal PEB on 8 April 1994.  This procedure appears to be within the provisions of pertinent regulations for a Reservist.  He deserves his disability as recommended by the PEB, but not retroactive to 22 October 1991.

6.  The Board does conclude, however, that the applicant’s case was mishandled by medical officials responsible for disability processing.  Subsequent to his MEB and initial PEB in 1994, his case apparently floundered within the system without proper and timely actions taken at the time.  He should have been considered by a formal PEB within a reasonable amount of time of the informal PEB.  The Board then concludes he should have been considered by a formal PEB on 
31 December 1994, a reasonable time after the informal PEB, allowing for medical officials responsible for disability processing to prepare for that action, and allowing for the applicant’s illness to be clearly manifested.  Had that occurred, the Board further concludes the applicant would have received the same results as those found and recommended by the formal PEB held on 
22 October 1996, i.e., 100 percent disability for “Systemic lupus erythematosus manifested by polyarthritis, positive double stranded DNA, hypocomplementemia, history of proteinuria, DNS involvement with partial complex seizures and vestibular neuropathy [i.e., manifestations of SLE].”  He was not diagnosed as such prior to 31 December 1994.  He may then have been retired from the Reserve on that date and placed on the Retired List on 1 January 1995.

7.  The applicant received a DD Form 214 for his extended active duty service as authorized by pertinent regulation, which specifies that DD Form 214’s are completed for all personnel who are discharged, retired or released from the Active Army.  He is not entitled to another DD Form 214.  His previous request for issuance of a DD Form 214 for retirement from the Reserve was denied.

8.  In view of the foregoing, the applicant’s records should be corrected as recommended below:

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected:

a.  by showing that the action separating the individual concerned from the Reserve on 14 February 1997, is void and of no force or effect;

	b.  by showing that on 31 December 1994, he was physically unfit to perform the duties of his office, grade, rank or rating by reason of systemic lupus erythematosus manifested by polyarthritis, positive double stranded DNA, hypocomplementemia, history of proteinuria, DNS involvement with partial complex seizures and vestibular neuropathy, for a combined 100 percent disability rating under Code 6350 of the VASRD; that the disabilities were permanent;  that they were incurred while he was entitled to receive basic pay as a member of a Reserve component in an active Reserve status; that they did not result from misconduct or willful neglect; that they were not incurred during a period of unauthorized absence; that they were incurred in line of duty;  that they were not the direct result of armed conflict; and that they were not caused by an instrumentality of war; and 

	c.  by showing that he was relieved from the active Reserve on 
31 December 1994, by reason of physical disability, rated 100 percent disabling in accordance with the VASRD; and that, effective 1 January 1995, he was permanently retired under the provisions of Title 10, United States Code, section 1204, with entitlement to retired pay of the highest grade satisfactorily held within the meaning of Title 10, United States Code, section 1372.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:

Gdp_____  jlp______  dw_____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

					___________________
					      CHAIRPERSON

INDEX

CASE ID	AC98-09150/AR1998013486	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	YYYYMMDD	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.	108.00	
2.		
3.		
4.		
5.		
6.