RECORD OF PROCEEDINGS

	IN THE CASE OF:        

	BOARD DATE:            13 MAY 2004                  
	DOCKET NUMBER:   AR2003097128

	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. Carl W. S. Chun		Director	
	Mr. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Mark Manning		Chairperson	
	Mr. Richard Dunbar		Member	
	Ms. Mae Bullock		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).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  On behalf of the applicant, counsel requests reconsideration of the applicant's earlier appeal to correct his record to show that he served on active duty from    30 April 2001 to the present, that he be given the pay, service credit, and benefits that such a correction would necessitate; or in the alternative, that he be given incapacitation pay for the period 1 November 2001 to the present, emphasizing that incapacitation pay is not his preferred option.

2.  Counsel takes issue with the Board decision denying the applicant's request, stating that it was intellectually deficient and inappropriate.  He states that the applicant came to the Board seeking relief after having served honorably in a war zone, and being "jerked around beyond belief by his RSC (Regional Support Command)."  He states that if the applicant's medical records were required for a determination, the Board could have found them as it knew that the formal PEB (Physical Evaluation Board) had them, or the Board could have asked him to obtain them.  He states that the PEB awarded the applicant a 30 percent disability rating, retiring him because of his injuries, and that it was inconceivable to suggest that there was no evidence that he was unfit for duty when he was separated.  Counsel states that neither hospitalization nor an initiated MEB are required for that.  He states that the PEB rating of 30 percent conclusively demonstrated that his medical records were replete with an unfitting condition and the Board was bound by that determination.  He states that they [applicant and counsel] demonstrated gross neglect on the part of the RSC; yet the Board stated that because the applicant did not initiate a request to be retained on active duty, he loses.  He states that his command never told him he had such a right, as was their duty to do so.   

3.  Neither the applicant nor counsel provides any evidence in the request for reconsideration.

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 Army Board for Correction of Military Records (ABCMR) in Docket Number AR2003086627, on 21 August 2003.  That Board did not have access to the applicant's medical records.  The applicant's complete medical records are yet not available; however, depicted herein is information extracted from line of duty reports, MEB and PEB proceedings and related documents, which are contained in the applicant's OMPF (Official Military Personnel File).

2.  A physical fitness test scorecard shows that the applicant passed the Army physical fitness test on 29 October 1999 with a score of 282, and that he passed the push up and sit up portions of the test on 29 April 2000, but did not take the run portion of the test because of a profile.

3.  As indicated in the 21 August 2003 Board proceedings the applicant, a Reserve Soldier assigned to the 313th Hospital Unit Surgical in Springfield, Missouri, was ordered to active duty with a reporting date to Fort Benning, Georgia on 27 August 2000, enroute to the 30th Medical Brigade at Camp Bondsteel in Kosovo.  He was released from active duty, not by reason of physical disability, at Fort Benning on 29 April 2001. 

4.  A 14 March 2001 line of duty investigation shows that the applicant was treated at Landstuhl Regional Medical Center in Germany because of pain in his back incurred when transferring a patient between beds in the emergency medical tent.  His injury was in line of duty.

5.  A 5 April 2001 line of duty report prepared at Martin Community Hospital at Fort Benning, shows that the applicant was treated at the Army hospital at Camp Bondsteel in Kosovo on 7 December 2000 for a rib dysfunction, 5th and 6th subluxation with muscle spasms caused when lifting a patient from one stretcher to another. 

6.  A 6 April 2001 line of duty report prepared at Martin shows that he was treated at Camp Bondsteel on 17 October 2000 for a right knee ACL (anterior cruciate ligament) tear sustained while playing basketball.  That report shows that he had previously injured the same knee in1997.  His injury was determined to be in line of duty.

7.  A 6 April 2001 line of duty report prepared at Martin shows that he was treated at Camp Bondsteel on 9 March 2001 because of acute appendicitis s/p (status post) appendectomy.  His disease was determined to be in line of duty.

8.  The applicant's officer evaluation report for the period 24 August 2000 through 1 April 2001 while serving as an assistant emergency treatment nurse with Headquarters and Headquarters Company, 30th Medical Brigade (Forward), TFMF (Task Force Med Falcon), at Camp Bondsteel, shows that his rating officials considered his performance of duty as outstanding, indicating that he should be promoted ahead of his contemporaries and placed in a position of increased leadership.

9.  In a 5 April 2001 memorandum, the Chief, Patient Administration Division of the Army Medical Department Activity at Fort Benning informed the applicant that upon release from active duty he was authorized 30 days of health care at any uniformed services medical treatment facility, and at the conclusion of the         30 days, he was authorized care for any in line of duty injury, illness, or disease at any DVA (Department of Veterans Affairs) or Department of Defense Military Treatment Facility (MTF).  That official stated that the applicant had been diagnosed as having a right knee ACL tear, rib dysfunction, 5th and 6th subluxation with muscle spasms, and acute appendicitis s/p appendectomy.  His injuries were first treated at Camp Bondsteel, Kosovo on 17 October 2000,          7 December 2000, and 9 March 2001.  He was informed that responsibility for medical treatment had been transferred to the Air Force Medical Center Scott, Scott Air Force Base, Illinois.  He was further informed that his next appointment for medical evaluation would be coordinated by his unit.  He was also informed that if it was determined that his treatment would take longer than 30 days, he could request to be returned to active duty, and if that was the case, he should ask his home unit for details or contact the Fort Benning point of contact, which was listed in the memorandum.  He was also provided the address and telephone number of the Reserve liaison officer in his Regional Medical Command. 

10.  In a 12 March 2002 memorandum the commanding officer of the applicant's unit, the 313th Hospital Unit Surgical, requested that the commander of the     89th Regional Support Command make a determination of fitness for duty in connection with the applicant's re-injury to his right knee and his injury to his back.  That officer stated that the applicant had reinjured his right knee during physical fitness [training] in October 2000 and that his prior knee injury was on    8 October 1997, and that he injured his back in November 2000.  He stated that the applicant could not do military work without causing himself pain.  

11.  A medical evaluation board (MEB) report prepared on 29 March 2002 by an Air Force doctor of the 375th Medical Group, Scott Air Force Base, indicates that the applicant returned to the St. Louis area after his release from active duty, and was seen by that doctor in April 2001 because of left sided rib pain.  That report indicates that the applicant was referred to several different specialists, had been seen by a doctor in the St. Louis Barnes Pain Clinic as well as multiple others.  He had a full orthopedic evaluation to include nerve conduction tests, MRIs (magnetic resonance imaging), CTs and oral medications.  Tests were inconclusive.  He was referred to a doctor in the St. Louis pain clinic, and a repeat evaluation including more MRIs, etc., were also inconclusive.  It was decided that the applicant was suffering from neurologically derived pain 

secondary to nerve root irritation from the nerves going to the left anterior rib cage.  The applicant underwent nerve ablation therapy which improved his symptoms somewhat; however, at today's [29 March 2002] visit the applicant stated that the pain had returned.  The report indicates that in the last 12 months the applicant had been tried on numerous combinations of pain medicines, that he was currently stable on long acting oral narcotics, but had just recently had to have an increase due to increasing pain.  The report indicates that prior to being diagnosed with his left anterior rib pain, the applicant had a history of mild hypertension for which he was on Atenolol, and mild lower back pain.  The lower back pain was subsequently worked up along with his rib pain and it was found that he had mild sciatic nerve irrigations based on nerve conduction studies, although again MRI evaluation was inconclusive.  The report indicates that his hypertension was ongoing and controlled with oral antihypertensive. 

a.  The report indicates that the applicant sees the Barnes Jewish Pain Clinic where he was followed by a doctor, that he was presently being seen by an orthopedic surgeon for a separate diagnosis of ACL tear, repair, and chronic knee pain, that he has been seen by a doctor of the mental health clinic for ongoing depression, and that he also saw a doctor of the neurology department where he underwent nerve conduction studies.  The report indicates that the applicant was on various medications. 

b.  The applicant's condition was diagnosed as chronic left rib cage pain of uncertain etiology; mild right sided lower extremity sciatica that was currently stable; depression secondary to pain; hypertension, currently controlled on medications; erectile dysfunction likely secondary to a multitude of factors; adult attention deficit disorder (ADD) diagnosed by mental health; and knee pain, ACL repair pending.  The doctor recommended that the applicant be considered for separation/retirement because he felt that his fitness for continued active duty was questionable. 

12.  The applicant provided a seven page narrative summary rebuttal to the MEB, contending that the summary contained an extensive amount of incorrect, false, and baseless information, which, if used would mislead the review board.  In his rebuttal he provided information concerning his chief complaint/unfitting condition, the classification of his pain, the description and location of his pain, a list of the unsuccessfully interventions, and his current and past medications.  He stated that he was not employed due to his medical conditions, and that he was forced to turn down offers to practice privately and in the hospital setting.  He stated that he was licensed to practice as an acute care nurse practioner and was a member of several professional organizations.  He stated that he had served in the Army Reserves for over ten years and was rated above center of mass on every officer evaluation report.  

a.  The applicant diagnosed his conditions as chronic neuropathic/myofascial pain syndrome with radiculopathy of the left posterior thoracic region secondary to chronic/recurrent rib subluxation/rib dysfunction, facet syndrome, and thoracic nerve root irritation; persistent myofascial spasms (compensatory) of the paraspinal muscles secondary to chronic rib subluxation, precipitated/protracted by nerve irritation; chronic fatigue (neurasthenia) secondary to pain syndrome and effects of current medication regimen; depression secondary to chronic pain syndrome; causalgia of the right lower extremity secondary to nerve entrapment of the femoral branch of the sciatic nerve (occurred as a result of prolonged tourniquet application during ACL revision August 2001); right knee pain and instability – status post ACL revision, right knee arthroscopy; and essential hypertension-controlled with medications.

b.  The applicant then provided a more in-depth description of his current medical history and pathology.  

c.  He provided a line by line delineation of the incorrect information in the narrative summary dictated by the Air Force doctor, e.g., deployment dates should be August 2000 to April 2001; date of initial onset was 5 December 2000; description of treatment, length of treatment incomplete, statement regarding that he was taken off of active duty misleading-he finished the deployment; duration of symptoms was incorrect – he did not originally present to him, but to another physician – he did not see him until May; statement regarding evaluation by multiple specialists misleading; location of pain incorrect, consultations incomplete and some incorrect statements, final diagnosis incomplete, incorrect diagnosis (sciatica, ADD), etc.

13.  The applicant then provided his own MEB narrative summary, a nine page document, with the diagnosis of his condition as indicated above, with the recommendation that he be considered for separation/retirement, because he was not fit for duty due to medical problems.

14.  In an undated statement, the doctor at Scott Air Force Base stated that he concurred with the changes to his [the doctor] narrative summary submitted by the applicant. 

15.  A 4 April 2002 physical profile report shows that the applicant's physical profile serial was 4 4 4 1 1 1 because of rib pain.

16.  A 28 May 2002 report of medical examination prepared at Scott Air Force Base was completed for the purpose of a MEB.  It shows that the applicant was not qualified for world wide service with a physical profile serial of 4 4 4 1 2 1.  In the report of medical history that he furnished for the examination, the applicant stated that his health was fair.  He provided a listing of his injuries and diseases, his treatment, and the doctors who treated him.
17.  In a 3 June 2002 memorandum the commanding officer of the applicant's Reserve unit informed the President of the Physical Evaluation Board (PEB) that the applicant had not performed duty with the 313th since he was released from active duty in April 2001.  He stated that his last official duty was out-processing at Fort Benning in April 2001, that he had been seen for medical treatment since then, and that he had been excused from all duties with the 313th due to his medical condition.  He stated that the applicant's profile precluded him from physical activities and from completing his duties in his specialty.

18.  A 28 June 2002 MEB conducted as Scott Air Force Base diagnosed the applicant's conditions as chronic left rib cage pain of uncertain etiology; mild right sided lower extremity sciatica; depression secondary to pain; hypertension controlled with medications; erectile dysfunction secondary to multitude of factors; and knee pain, ACL repair.  The MEB recommended that he be referred to an Army PEB.

19.  On 19 August 2002 the MEB was forwarded to the PEB at Fort Lewis, Washington.  On 23 August 2002 the PEB at Fort Lewis returned the case to Fort Leonard Wood, Missouri for a complete psychiatric examination, and correction of administrative deficiencies, to include a commander's evaluation.

20.  In a 9 September 2002 memorandum the commander of the 313th informed the commander of the Fort Leonard Wood Army Community Hospital that the applicant had not drilled with the unit since his return from deployment in April 2001, but that he had corresponded with him regarding his medical condition.  He stated that he was unable to comment on the applicant's military performance or proficiency.  He stated that the applicant indicated that he had not been able to work as a nurse since his redeployment.  He stated that he was unable to comment on his ability to perform nursing functions of his specialty.

21.  On 14 September 2002 the applicant was evaluated by a psychiatrist, who provides a history of the applicant's present illness, indicating that the applicant's current psychiatrics symptoms began in 1999 as a consequence of a significant loss with the death of his father, which developed into a bereavement followed by a depressive disorder.  The psychiatrist indicated that during the applicant's deployment to Kosovo, he maintained himself on antidepressants via a doctor's care; however, at that time, he had an occupational accident [resulting in back pain].  The applicant did not have resolution of his pain.  A brace was designed; however, designed by the applicant as well as by physical therapy.  There was a question of whether it was endorsed by the initial physician who diagnosed the rib subluxation.  It caused further atrophy of musculature for his stature and 

eventually caused more difficulty for the applicant.  He was released from active duty and told to follow up with a civilian practioner.  The applicant was unable to return to work and developed a significant pain syndrome, which caused significant social and occupational problems.  There appeared to be multiple factors involved in the development of pain to include the general medical condition of the rib subluxation as well as possible psychological factors which appeared to be perceived rejection by his unit due to them not taking care of incapacitation pay as well as keeping him on active duty while he had the injury evaluated.  This appeared to mirror the psychological factors related to the loss of his father.  The psychiatrist indicated that the applicant was pursuing a medical board.  He stated that the applicant's current psychiatric symptoms appeared to be primarily low self-esteem due to loss of his functional career, some reported decreased concentration, difficulty with memory, and persistent mild to moderate depressive mood.

a.  The psychiatrist provided information concerning the applicant's past psychiatric history, his family's psychiatric history, his past medical history, and his past personal history, to include the statement that the applicant continued to be engaged; however, was currently not planning on being married due to the current legal and medical issues he was addressing.  The psychiatrist stated that the applicant had not returned to work full time and that the applicant related that he had significant financial difficulties due to his injury.  

b.  The psychiatrist provided information concerning the applicant's mental status examination and provided an assessment and diagnosis of the applicant's condition.  He diagnosed his condition as depressive disorder, not otherwise specified, which existed prior to his service; pain disorder associated with both psychological factors and a general medical condition, which was clinically causing a significant distress and impairment of social and occupational and other important areas of functioning.  He stated that the applicant had no specific characterologic disorder; however, he did demonstrate some mild grandiosity and exaggerated slightly some of his achievements and talents.  He indicated that the applicant had a chronic medical problem and an occupational problem, and recommended that the applicant be referred to the PEB. 

22.  On 2 October 2002 a PEB determined that the applicant was physically unfit to perform his duties because of left sided chest pain, and recommended that he be separated with a 10 percent disability rating.  The applicant nonconcurred and demanded a formal board hearing.  A formal board was scheduled for               13 November 2002.

23.  In a 13 November 2002 memorandum the PEB informed the commander of the Fort Leonard Wood Army Community Hospital, that the applicant's case was recessed and returned for a neurological and orthopedic evaluation of the right lower extremity (mild right lower extremity sciatica).  

24.  On 12 December 2002 the applicant was evaluated by an orthopedist for his right lower extremity.  That doctor indicated that the applicant had an extensive evaluation done that the PEB was well aware of; however, he provided information concerning the applicant's history, indicating that the applicant had five prior knee surgeries, the first in January 1999, a right knee anterior cruciate ligament reconstruction performed in St. Louis while he was a civilian.  He provided information concerning the applicant's physical examination, reviewed tests conducted by a staff neurologist at Scott Air Force Base, and assessed the applicant's condition as status post revision anterior cruciate ligament reconstruction with stable knee graft and denervation injury of the right distal sciatic nerve that was symptomatic and limiting to the applicant at that time.  

25.  On 18 December 2002 a formal PEB determined that the applicant was physically unfit because of his left sided chest pain and tourniquet palsy distal right sciatic nerve following knee surgery, and recommended that the applicant be retired with a disability rating of 30 percent.  The proceedings indicated that    the applicant was present during a formal hearing conducted on 13 November 2002, that the formal hearing was continued to obtain additional information, which was received and evaluated and incorporated into the finding, and that counsel had affirmed that there was no further input to the case and personal appearance of the applicant and/or counsel at the continuance was neither requested nor required.  This formal PEB proceeding was available to the         21 August 2003 Army Board for Correction of Military Records proceedings.   

DISCUSSION AND CONCLUSIONS:

1.  Notwithstanding the lack of the applicant's complete medical records, his medical conditions as evidenced by MEB and PEB proceedings are well documented.  He did have medical conditions that were unfitting as determined by the December 2002 PEB.    

2.  The applicant's contention that his painful conditions prevented him from working is well documented in his initial request to this Board, and in the information contained in his MEB and PEB proceedings.  Nevertheless, during his tour of active duty, the applicant served well and apparently with no indication that he was physically or mentally unable to do so up until his release from active duty in April 2001, as evidenced by his evaluation report for the period that he was on active duty – this despite his well documented injuries.  Furthermore, 

although the applicant's medical conditions were noted at the time of his release from active duty, there was no determination made that he was physically unfit and that he should be hospitalized or undergo physical disability processing.  He apparently did not request to be retained on active duty.  Indeed, he was released from active duty not by reason of any physical disability. 

3.  He received incapacitation pay, apparently for six months through October 2001, as indicated in the 21 August 2003 Board proceedings.  The applicant, through counsel, has stated that a request for an extension of incapacitation pay was lost or mishandled by the applicant's RSC; however, there is no evidence to support this contention.  There is no evidence to show that the applicant's commanding officer initiated a request that the applicant be paid incapacitation pay for more than six months, in accordance with regulatory requirements.       

4.  The evidence does show that the applicant received follow up medical care for his injuries immediately after his release from active duty.  He was seen and evaluated on numerous occasions by medical personnel until the December 2002 formal PEB which determined that he be retired with a 30 percent disability rating.  There is, however, no evidence that the applicant requested to be returned to active duty – despite his apparent statement to a psychiatrist in September 2002 that his unit would not keep him on active duty while he had his injury evaluated.  The applicant was informed prior to his release from active duty that he could request to be returned to active duty if it was determined that his treatment would take longer than 30 days, and provided a point of contact at Fort Benning in this regard.  Counsel is mistaken in his contention that the applicant was unaware that he could request to be returned to active duty.

5.  The applicant's release from active duty in April 2001 was proper.  He was treated for his injuries subsequent to his release, and received incapacitation pay for six months, until November 2001, all in accordance with regulatory guidance.

6.  However, there is no evidence that the applicant or his commanding officer made a request for continuation of incapacitation pay to defray lost income, nor is there any evidence that the applicant requested that he be returned to active duty for treatment of his injuries to ease his alleged financial difficulties.  It was his responsibility to do so.    

7.  Consequently, his request that his record be corrected to show that he served on active duty from 30 April 2001, or in the alternative, that he be given incapacitation pay beginning on 1 November 2001, is without merit.   

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__MM ___  __RD___  __MB___  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 to amend the decision of the ABCMR set forth in Docket Number AR2003086627, dated 21 August 2003.

		____ Mark Manning______
		        CHAIRPERSON

INDEX

CASE ID	AR2003097128	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20040513	
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.	129.00	
2.		
3.		
4.		
5.		
6.