MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            26 May 1999       
	DOCKET NUMBER:   AR1999018147

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

	Mr. Loren G. Harrell		Director	
	Mr. Kenneth Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Mark D. Manning		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Ms. Barbara J. Ellis		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

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

APPLICANT REQUESTS:  In effect, physical disability retirement.  He requests reinstatement on active duty for pre-existing service-connected medical conditions that were undiagnosed and untreated prior to his retirement; that he receive a thorough medical evaluation; and that his records be corrected to accurately reflect his medical condition.  

APPLICANT STATES:  He retired from the Army on 28 February 1994.  Private medical authorities confirm that he has Lyme disease, sleep apnea and other symptoms of unknown etiology (symptoms reported while on active duty and reported to the VA in early 1995), and that those existed while he was on active duty.  Diagnosis of service-connected medical problems also include Epstein Barr virus, and hepatitis A.  He also has other medical problems undiagnosed to date.  He has had acute lower back pain since July 1972, and since the Gulf War the pains have resumed.  He states that his diseases have gone either undiagnosed or misdiagnosed by both the Army and the VA.  Lyme disease problems have been in remission because of antibiotics, but have not been cured.  He will likely have to continue antibiotics.  He also has been prescribed a breathing apparatus to control the sleep apnea.

He states that his doctor informed him that he had concurrent medical problems, as yet undiagnosed, attributable to his service in the Middle East, and that sleep apnea is related to other symptoms he has from the Gulf War.  Most of the associated medical symptoms were reported during his retirement physical examination.  He should have undergone additional testing prior to his release from active duty.  His problems would have been identified and treated, and he would not have been released from active duty had those diseases been identified.

He enrolled into a program at the Gulf War Health Center at Walter Reed Army Medical Center in December 1996, and their initial examination included findings of an infectious infiltrate in the lower left lung, B-12 deficiency, muscle enzyme deficiency, and possibly a polyp on his colon.

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant was inducted into the Army on 12 November 1969 and remained on continuous active duty until his retirement in 1994.  He completed numerous military courses during his Army career, including graduation from the Sergeant Majors Academy.  He obtained a bachelor of science degree from the University of Maryland in 1992.  

The applicant had assignments in locations throughout the world, to include Fort Bragg, North Carolina, Fort Rucker, Alabama, Fort Polk, Louisiana, Columbus, Ohio, Fort Knox, Kentucky, Fort Ritchie, Maryland, Washington, D.C., Vietnam, Australia, Israel, and Southwest Asia, among other locations.  He has received numerous awards to include the Legion of Merit, the Defense Superior Service Medal, the Defense Meritorious Service Medal (1st oak leaf cluster), Army Commendation Medal (1st oak leaf cluster), Army Good Conduct Medal            (8th award), Vietnam Service Medal, Joint Meritorious Unit Award, Joint Chiefs of Staff Identification Badge, Presidential Service Badge, and Southwest Asian Medal with two bronze service stars, among others.

The applicant’s evaluation reports during his Army career have been outstanding, as one would expect from a soldier who had attained the rank of Sergeant Major. All these reports, at least from the first required recordings in 1977, show that he was physically fit; and he passed each physical fitness test since 1983, when the results of the Army’s physical fitness test were required to be entered on evaluation reports.  His evaluation report ending in July 1993 while assigned to the Military Observer Group in Washington D.C. indicated that the applicant worked 70 hours a week.

The applicant retired from the Army on 28 February 1994 in the rank of Sergeant Major E-9.  He had over 24 years of service.

Laboratory reports in May and June 1995 from the Hager Park Health Center in Hagerstown, Maryland, indicate that the applicant was tested for hepatitis A antibody screen, Epstein-Barr virus VCA antibody, quantitative IGG, Epstein-Barr nuclear antibody titer, and Lyme IGG antibody (Western blot); among other tests conducted.

In a 19 February 1996 letter a doctor at The Sleep Disorders Center of Hagerstown stated that the applicant had a significant past medical history of questionable encephalitis, bronchitis, questionable Lyme disease, questionable Gulf War syndrome, and questionable post traumatic stress disorder (PTSD); and Epstein-Barr virus antibody positive.  He was referred because of abnormal sleep behavior, to include sleep walking.  He had memory problems, excessive daytime fatigue, and non-refreshing sleep.  His wife stated that he thrashes around shouting, yelling, and cursing during sleep, among other problems.  He was given a broad diagnosis of rapid eye movement behavior disorder, PTSD, and obstructive sleep apnea syndrome.  The doctor planned to obtain an overnight polysomnogram on the applicant.

A 9 April 1996 polysomnograph report indicated that the applicant’s sleep efficiency was 83 percent and the sleep on the first night was abnormal, among other remarks in the report.  He had a total of 150 episodes of arousals and 20 awakenings.  He was diagnosed as having obstructive sleep apnea syndrome.  The doctor recommended a repeat study with CPAP initiation and titration during sleep.
A 5 June 1996 CPAP polysomnograph report indicated that the applicant had a total of 123 episodes of arousals and 11 awakenings.  He was again diagnosed as having obstructive sleep apnea syndrome.

In a 13 August 1996 document a doctor at the Robinwood Medical Center indicated that the applicant had been under his care since May 1995 and that he had multiple complaints including abnormal sleep behavior, severe low back pain, difficulty concentrating, and easy fatigue ability.  He had a definite diagnosis with an immunoblot significantly positive for Lyme disease.  He was treated for Lyme disease and intermittently treated for those symptoms, most of which were in remission.  He complained of sleep apnea, which has been documented.  He had a long standing history of Lyme disease which the doctor believed was present prior to his discharge.  He stated that he believed that he had symptoms referable to his experience in the Gulf War of uncertain etiology which are persistent.  His sleep apnea was of uncertain etiology and it might in fact be related to his other symptoms which began after being in the Gulf War.

Army Regulation 635-40, paragraph 3-2b states that disability compensation is not an entitlement acquired by reasons of service-incurred illness or injury; rather, it is provided to soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  When a soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his rank or grade until the soldier is scheduled for separation or retirement creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  Absent medical evidence to the contrary, it is presumed that the applicant was medically fit for separation.  He has submitted no probative evidence to the contrary.  His continued performance of duty raised a presumption of fitness which he has not overcome by evidence of any unfitting, acute, grave illness or injury concomitant with his separation.  Accordingly, he was released from active duty because of his approved voluntary retirement application.

2.  The applicant did not have any medically unfitting disability which required physical disability processing.  Therefore, there is no basis for physical disability retirement or separation.  Nor is there reason for returning him to active duty for processing in the physical disability system, notwithstanding the medical documentation that he submits with his application.  

3.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.   

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__mdm___  ___aao__  ___bje__  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999018147	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990526	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1. 108.00		
2.		
3.		
4.		
5.		
6.