BOARD DATE: 22 March 2016 DOCKET NUMBER: AR20150003125 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 retirement due to maximum authorized years of service be changed to a medical retirement due to physical disability. 2. The applicant states he must be returned to the United States Army Reserve (USAR) to be properly medically retired. He was hospitalized and not afforded a timely diagnosis or afforded the Medical Evaluation Board (MEB) process. He was hospitalized while he was a drilling member of the USAR. He was diagnosed with a rare neurological condition call transverse myelitis after receiving the annual mandatory influenza vaccine. He had a severe reaction and demyelination of the spinal cord. As result of the condition he became a quadriplegic and is catastrophically disabled. 3. The applicant provides: * orders * medical records * DA Form 2173 (Statement of Medical Examination and Duty Status) * DD Form DA Form 2173 (Statement of Medical Examination and Duty Status) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * three DA Forms 7574-1 (Military Physician’s Statement of Soldier’s Incapacitation/Fitness For Duty) * eight DA Forms 7574 (Incapacitation Pay Monthly Claim Form) * pay records * letter from the Department of Veterans Affairs (VA) * letter from the Reserve Health Readiness Program * Standard Form 600 (Chronological Record of Medical Care) * letter from Health Source Chiropractic and Progressive Rehab, dated 17 December 2013 * letter from Neurological Associates, P.C., dated 4 December 2013 * a compact disc containing 2,510 pages of medical documents CONSIDERATION OF EVIDENCE: 1. On 1 August 1985, the applicant was appointed a Reserve commissioned officer and executed an oath of office on the same day. 2. A Standard Form 600 shows he received an influenza vaccine on 7 November 2012. 3. A DA Form 2173 shows he was seen on 13 December 2012, for transverse myelitis following a viral illness related to the influenza vaccine. The illness was determined to have been incurred in the line of duty (LOD). 4. Records show he was determined to be unfit for duty beginning on 13 December 2012. He was approved for incapacitation pay from 13 December 2012 through 31 July 2013. 5. On 3 May 2013, he was released from the USAR and assigned to the Retired Reserve effective 1 August 2013 due to maximum authorized years of service. 6. A letter from a VA physician, dated 17 December 2013, stated, in part, that it was least as likely as not that the causative agent for the onset of transverse myelitis in the applicant’s case was the influenza immunization he was ordered to receive. 7. There is no indication his commander or other designated USAR representative referred the applicant for processing through the Army Physical Disability Evaluation System (PDES) prior to him being transferred to the Retired Reserve. 8. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army 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. It provides for an MEB, which is convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness). If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a Physical Evaluation Board (PEB). Soldiers who sustain or aggravate physically unfitting disabilities determined LOD will be eligible to receive retirement and severance pay benefits. 9. Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement. Paragraph 3-30 list neurological disorders that necessitate referral to an MEB, including transverse myelitis. 10. Department of Defense Instruction (DoDI) 1332-18 (Disability Evaluation System) states the Secretary of the Military Department will refer Service members who meet the criteria for disability evaluation regardless of eligibility for disability compensation. Medical authorities will refer eligible Service members into the PDES who have one or more medical conditions that may, individually or collectively, prevent the Service member from reasonably performing the duties of their office grade, rank or rating including those duties remaining on a Reserve obligation for more that 1 year after diagnosis. DISCUSSION AND CONCLUSIONS: 1. The evidence of record shows he was treated for transverse myelitis, a condition that may be cause for referral to an MEB. His condition was determined to have been incurred in the line of duty. 2. A VA physician concluded that it was least as likely as not that the causative agent for the onset of transverse myelitis in the applicant’s case was the receipt of the influenza immunization, for which he was on military orders to attend. 3. While receiving incapacitation pay as a member of the USAR, he was released from the USAR and assigned to the Retired Reserve due to maximum authorized years of service. There is no indication his commander or any other designated USAR representative referred the applicant for processing through the Army PDES prior his placement in the Retired Reserve, nor is there evidence the applicant requested processing through the PDES based on his condition. 4. In view of the foregoing evidence, there is insufficient evidence to grant the applicant's request for medical retirement; however, as a matter of justice he should be allowed to be considered by an MEB to make a determination if his case should or should not be referred to a PEB for a determination of fitness and a possible rating. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ___X_____ ___X_____ ___X__ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by the Office of The Surgeon General contacting the applicant to arrange, via appropriate medical facilities, a physical evaluation and, if appropriate, an MEB through the use of invitational travel orders to the applicant. a. In the event a PEB becomes necessary, the individual concerned will be issued invitational travel orders to prepare for and participate in consideration of his case by a PEB. b. If warranted, all required reviews and approvals will be made subsequent to completion of the PEB. c. If a determination is made that he should have been separated through the PDES, these Proceedings serve as the authority to: * void his discharge from the USAR * issue the appropriate disability separation order effective 1 August 2013 * if required by law, pay him all back pay less any entitlements already * received 2. The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to retiring him for permanent disability. _______ _ 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) AR20150003125 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150003125 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1