IN THE CASE OF: BOARD DATE: 7 April 2016 DOCKET NUMBER: AR20150008749 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X___ ____X___ ____X___ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 7 April 2016 DOCKET NUMBER: AR20150008749 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. IN THE CASE OF: BOARD DATE: 7 April 2016 DOCKET NUMBER: AR20150008749 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, in effect, correction of his records to show he retired due to physical disability in lieu of being discharged due to physical disability. 2. The applicant states, in effect: * he was unfit for duty according to his medical records * after he was determined to be unfit, he was unfairly released from the military because the examining physician determined his disability was not aggravated by military service * he never had any medical problems in his life prior to joining the military * he was near his expiration term of service date of 7 May 2001, his claim was simply denied and he was forced to separate in April 2001 because he was unable to perform the duties associated with his military occupational specialty of 31R (Multi-channel Operator Maintainer) * he was advised to just go to the Department of Veterans Affairs (VA) and get something from them * he was advised on at least two occasions to just accept the medical evaluation board (MEB) and physical evaluation board (PEB) determinations and not appeal * he was previously unaware he could file a grievance to have his MEB and PEB decisions overturned until he began researching online 3. The applicant provides: * self-authored statement * DA Form 3349 (Physical Profile), dated 27 November 2000 * DA Form 3947 (MEB Proceedings), dated 15 February 2001 * Medical Board Summary * DA Form 199 (PEB Proceedings), dated 4 April 2001 and allied medical documents * DD Form 214 (Certificate of Release or Discharge from Active Duty) * various medical documents in excess of 30 pages, to include laboratory, consultation, electrodiagnostic, and radiology reports CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant enlisted in the Regular Army on 8 May 1997. 3. His Medical Board Summary delineates his history of recurrent exercise-induced muscle fatigue and collapse. The first episode occurred in March 1999 during an Army Physical Fitness Test (APFT) at Fort Hood, TX, after which he began vomiting and experiencing fatigue and dizziness. He was admitted to Darnell Army Medical Center, Fort Hood. He had multiple documented recurrences of the disorder and was assigned a medical profile rating since that incident. 4. The evidence reveals extensive laboratory work done in March 1999, September 1999, November 1999, April 2000, and October 2000. In April 1999, an electrocardiogram, echocardiogram, 24-hour Holter monitoring, and exercise stress testing were conducted. In July 2000, nerve conduction velocity/needle electromyography studies were conducted. In October 2000, nerve conduction velocity/needle electromyography studies were conducted, a right quadriceps muscle biopsy with metabolic panel and chest x-rays were taken. On 11 October 2000, a nephrology consultation was completed to further evaluate and review the medical evidence. 5. He was diagnosed with cryptic myopathy, a disorder characterized by a primary structural or functional impairment of skeletal muscle. It was noted there are many mild inherited myopathies due to some minor enzyme abnormality that currently defy further description. Given the persistent nature of the applicant's condition the prognosis was he was likely to continue to have similar problems related to the cryptic myopathy of varying degree in the future. With the identification and elimination of factors responsible for aggravating this condition, is it possible that related problems could be reduced to a minimum. It was deemed unlikely that he would be able to perform the activities required during time of conflict. 6. A DA Form 3349 shows he was assigned a permanent physical profile rating on 27 November 2000 related to his diagnosed medical condition of cryptic myopathy. 7. His DA Form 3947, dated 15 February 2001, shows he was diagnosed with metabolic myopathy, manifested by exertional fatigue and increased muscle enzymes. His myopathy was deemed medically unacceptable in accordance with Army Regulation 40-501 (Standards of Medical Fitness) and he was referred to a PEB. The applicant signed the PEB Proceedings on 26 February 2001, agreeing with the board's findings and recommendations. 8. A 12 March 2001 memorandum from the Chief, Rheumatology Service, Walter Reed Army Medical Center, to the PEB clarified the applicant's diagnosis and service aggravation. It states the applicant has recurrent elevation of his muscle enzymes after mild to moderate exertion. He has a sensation of fatigue, weakness, and soreness during these exacerbations. An extensive work up, including a muscle biopsy, failed to reveal the specific enzyme defect. It concluded he had a metabolic myopathy with an unidentified enzyme defect which is likely an inherited or congenital enzyme defect as suggested by a positive family history. The metabolic myopathy is aggravated by service and prolonged marching, wearing a backpack, and taking an APFT were to be avoided. 9. His DA Form 199, dated 4 April 2001, shows the PEB convened on the date of the document and determined the medical condition of cryptic myopathy was unfitting and that he should be separated from the Army without disability benefits. He was not assigned a disability rating as his medical condition was determined to be a congenital condition which existed prior to service and is the result of natural progression, not service connected. The applicant signed the document on 9 April 2001, concurring with the findings and waiving a formal hearing of his case. 10. On 7 May 2001, he was honorably discharged by reason of disability, existed prior to service. He was credited with 4 years of net active service. REFERENCES: 1. Army Regulation 40-501 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 VA Schedule for Rating Disabilities. 2. The VA Schedule for Rating Disabilities 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. 3. Army Regulation 635-40 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. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: a. The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. b. The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. 4. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent. 5. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency, under the operational control of the Commander, U.S. Army Human Resources Command, is responsible for administering the PDES and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). a. The objectives of the system are to: * maintain an effective and fit military organization with maximum use of available manpower * provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability * provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected b. Soldiers are referred into the PDES: * when they no longer meet medical retention standards in accordance with Army Regulation 40-501, chapter 3, as evidenced in an MEB * receive a permanent physical profile rating of 3 or 4 and are referred by a Military Occupational Specialty Medical Retention Board * are command-referred for a fitness-for-duty medical examination * are referred by the Commander, U.S. Army Human Resources Command c. The PDES assessment process involves two distinct stages: the MEB and the PEB. The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his or her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are separated receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. d. The mere presence of medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. DISCUSSION: 1. The applicant's request for correction of his records to show he retired due to physical disability was carefully considered. 2. He was properly discharged from the Regular Army under the provisions of Army Regulation 635-40, chapter 4, after referral to an MEB and subsequent PEB which found he did not meet medical retention standards for the unfitting condition of cryptic myopathy. 3. His condition was determined to have been an inherited, congenital condition which existed prior to service and was the result of natural progression, not service connected. Thus, he was not assigned a disability rating. The applicant signed the PEB Proceedings, concurring with the findings and waiving a formal hearing of his case. 4. Title 10, U.S. Code, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent. The applicant had neither a disability rating of 30 percent nor did he have 20 years of service to render him eligible for a physical disability retirement. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150008749 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150008749 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2