IN THE CASE OF: BOARD DATE: 1 November 2016 DOCKET NUMBER: AR20150010737 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: 1 November 2016 DOCKET NUMBER: AR20150010737 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: 1 November 2016 DOCKET NUMBER: AR20150010737 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: a. Correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 14 October 2000, to show a new retirement date giving him 20 years of active service (i.e. 18 May 2001). (He later revised this to revocation of his separation orders, thus permitting him to return to active service so he could complete the additional 5 months and 7 days for 20 years of service). b. Based on the correction in years of service, he requests back-pay, as well as payment of Concurrent Retirement and Disability Pay (CRDP). c. Correction of his medical evaluation board (MEB)/physical evaluation board (PEB) documents from 1991 and 2000 to reflect Type 1 vs Type 2 diabetes mellitus. (He later revised this request to voiding and removing the medical records and documents associated with his MEB/PEB, conducted in 2000). 2. The applicant states, in effect: * he was forced to retire per chapter 61 (Retirement or Separation for Physical Disability), Title 10, U.S. Code, because of a wrong diagnosis; he asserts he actually had Type 1 diabetes, but was shown as having Type 2 [Type 1 diabetes - (previously identified as "insulin-dependent diabetes"), usually occurs in children and young adults, and is when the immune system destroys the cells that release insulin, eventually eliminating insulin production and requiring insulin injections.] [Type 2 diabetes - (previously called "non-insulin-dependent") is when the body cannot use insulin correctly (referred to as being "insulin resistant"). As Type 2 worsens, the pancreas may produce less insulin, creating an insulin deficiency; treatment includes either insulin pills or injections.] * he contends he currently has, and has had since 1990, Type 1 diabetes; there are differences between Type 1 and Type 2, and they are treated with different medications * he claims the wrong medications caused his diabetes to become unstable; this instability led to his forced retirement * when he retired, he had only 19 years, 4 months, and 26 days, and he was not given the option to serve the additional 7 months and 5 days needed to reach 20 years of active service; he feels this was unjust * by wrongfully forcing his removal from the Army prior to his regular retirement date, the Army never permitted him to receive the full benefit of medical care for his Type 1 diabetes * the Department of Veterans Affairs (VA) also used this incorrect diagnosis in his follow-on care; he was later correctly diagnosed by a non-governmental endocrinologist * this doctor changed his medications, and started him on an insulin pump * Type 2 diabetes often occurs over time, and many people are not aware they have it; Type 1 diabetes requires immediate action or death may come rapidly * he should have been diagnosed as a Type 1 diabetic when he lost 26 pounds in 3 weeks (referring to a weight loss that occurred in or around 1990); he trusted his doctors to know what they were doing * prior to this he had been prescribed Type 2 diabetes medications; because the medications were treating the wrong disease, they were harmful to him * he contends he should not have been separated for the wrong diagnosis, and should have been given the full option of medical treatment for Type 1 diabetes before being considered for a forced disability retirement * as a result of being prescribed the wrong medications by both the Army and VA, he now suffers from diabetes-related health issues; the VA now classifies him as 100 percent disabled 3. The applicant provides: * MEB NARSUM, dated 19 October 1990 * consultation for MEB, undated, but apparently from the 1998-timeframe * DA Form 199, dated 29 June 2000 * Orders Number 206-0104, dated 24 July 2000 * DD Form 214 * Patient Laboratory Inquiry, dated 19 January 2012 * medical notes from visit with physician's assistant, dated 15 April 2015 * letter from physician, dated 23 December 2015 * Congressional Inquiries, dated 22 June 2015 * VA Progress Note, dated February 2002 * letter from the applicant to the Army Review Boards Agency, undated, with enclosure 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 19 May 1981. Following initial training, he was awarded military occupational specialty (MOS) 98J (Electronic Intelligence Interceptor/Analyst). He served continuously on active duty, and, on 1 October 1993, was promoted to the rank of sergeant first class (SFC). 3. His official military personnel file (OMPF) contains the following relevant documents: a. DA Form 3349 (Physical Profile), approved on 10 December 1990, showed a permanent-level 3 (P3) physical profile for physical capacity ("P") due to Type 2 diabetes. [A physical profile is based on six body systems: "P" = physical capacity; "U" = upper extremities; "L" = lower extremities; "H" = hearing; "E" = eyes; and "S" = psychiatric (abbreviated as PULHES). Each factor has a numerical designation, with "1" meaning a high level of fitness; and "3" indicating significant limitations. Profiles can either be permanent (P) or temporary (T).] b. DA Form 3947 indicates an MEB was conducted on 10 December 1990, which determined he failed medical retention standards for Type 2 diabetes. His case was referred to a PEB for a fitness determination. c. A DA Form 199, dated 13 February 1991, found him fit for duty. (1) The PEB noted that a major factor in their decision was an analysis of the assignment/activity limitations assigned by the MEB. These indicated there were no physical restrictions that would preclude him from reasonably performing the normally assigned duties for his MOS and grade. (2) On 6 March 1991, he concurred with the PEB's findings and waived his right to a formal PEB. d. Memorandum, dated 11 March 1991, Subject: Approval of PEB Action UP (under the provisions of) AR 635-40, sent by the U.S. Total Army Personnel Command, notified the commander, 97th General Hospital of the applicant's PEB results. It stated, in effect: * the applicant was found fit for military service * if not scheduled for separation or retirement for reasons other than physical disability, he should be returned to duty * when a Soldier is returned to duty and is incapable of satisfactorily performing PMOS (primary MOS) duties because of disability, the Soldier should again be referred into the disability evaluation system e. Addendum to MEB, dated 24 April 2000, completed by Dr. BCF, psychiatrist, stated, in summary: * the applicant had been referred by Dr. MPW for an MEB evaluation; the date of the examination was 17 April 2000 * the applicant was initially seen by Dr. MPW, Chief, Internal Medicine at Raymond W. Bliss Army Health Center (RWBAHC); he had been treated with Celexa (antidepressant) starting 10 days prior to this visit * he reported no previous history of depression until he was diagnosed with diabetes in January 1998 * he had been evaluated by MEBs on two other occasions, and was initially seen in April 1998 by the Division Mental Health in Bad Kreuznach, Germany; at that time he was placed on Prozac * the applicant complained of sexual dysfunction and he was changed to Wellbutrin; when this also did not help, he was restarted on Prozac and continued until June 1999 * since starting Celexa 10 days prior, his sleep had decreased with multiple awakenings at night; his appetite was normal; his concentration was fair; his energy level was low * he acknowledged feelings of hopelessness and worthlessness, but denied helplessness; he also acknowledged dysphoria (generalized dissatisfaction with life) and psychomotor retardation * under Mental Status Examination, it stated the applicant was: * alert, oriented, and cooperative * his attire was clean, neat, and appropriate * he had good eye contact, and spoke clearly, coherently, and with spontaneity and relevance * his affect appeared blunted; his thought process was linear and goal direct; his thought content did not reveal any suicidal/homicidal or psychotic thinking * his insight and judgment were good and he had no cognitive deficits on the Folstein Mini Mental Status Examination (MMSE) [The Folstein MMSE is an 11 question psychological tool that tests five areas of cognitive function: orientation, registration, attention and calculation, recall, and language. Since its creation in 1975, it has been validated and is extensively used in clinical practice.] * the applicant continued to have current symptoms of depression, and was restarted on an antidepressant; it was recommended he remain on antidepressants for at least 2 to 5 years * the diagnosis was major depressive disorder, recurrent, moderate * his impairment for further military duty was moderate; his impairment for social and industrial adaptability was moderate f. DA Form 3349, approved 28 April 2000, indicated he had P3 profiles for "P" and "L" body systems. The listed medical conditions were unstable diabetes, depression, and derangement of the right knee. g. Memorandum, dated 12 May 2000, Subject: Commander's Performance Statement, prepared by the applicant's commander. It essentially stated: * the applicant had been assigned since September 1999 and his supervisor was satisfied with his duty performance * his profile prevented him from doing unit-level physical training (PT) or taking a valid Army Physical Fitness Test (APFT); he was only able to walk at his own pace * his physical problems existed prior to his current assignment; he was first diagnosed as being an insulin-dependent diabetic in 1981 [sic, 1987] * a PEB found him fit for duty, however his condition has worsened throughout his career * in 1998, a MOS/Medical Retention Board (MMRB) and PEB were initiated; he was initially found unfit for duty and given a disability rating of 20 percent; he appealed the PEB results * since his medications were changing, the PEB decided to modify its recommendation by giving him a 6-month reevaluation period; the PEB later retained him when his condition appeared to stabilize * the applicant had to eat meals at the same time daily, and perform repetitive PT that expended roughly the same amount of energy each day in order to stabilize his blood sugar * this regimen prevented him from participating in unit PT * in November 1999, he began to experience pain in his right knee; he was given physical therapy; unfortunately, this change to his daily routine made it difficult to maintain his blood sugar levels * surgery performed on 17 February 2000 removed a portion of the meniscus between the bones of his right leg, but a change to his profile caused even more fluctuations in his diabetes * while the applicant gives an effort in his duties, his medical condition is definitely a limiting factor; he is not deployable, can only perform the minimum in PT, he cannot take an APFT, he cannot stand in formation, and he is unable to fire a weapon * because of his need for a regular schedule and regular meals, he is unable to perform any kind of shift work, to include staff duty noncommissioned officer (NCO) * the commander felt the applicant was no longer able to perform the duties of a Soldier in a worldwide environment, and recommended separation under the PEB process h. His OMPF is void of any documents regarding an MMRB or an MEB/PEB conducted in or around 1998. i. Standard Form (SF) 88 (Report of Medical Examination), dated 15 May 2000, indicates he was examined based on having an MEB/PEB. (1) Item 17 (Clinical Evaluation), Notes, it shows: * diabetic requiring insulin * right knee (down-pointing arrow) lowered ROM (range of motion) [and] strength * major depressive disorder, recurrent * indicates right knee arthroscopy (2) Item 19 (Test Results) shows glucose as 175 (mg/dl) [normal is 70 to 110 mg/dl]. j. SF 93 (Report of Medical History), signed by the applicant, reflected he was medically evaluated on 15 May 2000. (1) Item 7a (Present Health) showed: * diabetic * left knee problems [sic, right knee problems] * right ankle problems [sic, left ankle problems] * hypothyroid (where the thyroid gland does not produce enough thyroid hormone) * recurrent major depressive disorder * peripheral neuropathy * erectile dysfunction * recurring stress fractures in both lower legs (2) Item 7b (Current Medication) listed the following medications: * Ultralente (a long acting form of insulin) and Humalog (another form of insulin) * Celexa (antidepressant) * Naproxen (nonsteroidal anti-inflammatory) * Synthyroid (used to treat hypothyroidism) * Sildenafil Citrate (Viagra) k. Memorandum, date 18 May 2000, signed by the applicant, Subject: Request to extended dictation for [applicant's] MEB: * the applicant requested a delay in the dictation of his MEB to allow input by Orthopedics * he stated the Fort Huachuca Orthopedics Department had only one physician to write MEB input, and this physician only came to Fort Huachuca once a month from El Paso * at the time, this physician was backlogged by 4 months, and it appeared the applicant would not be able to see him until the end of June 2000 * he contended PEBs were heavily depend on MEB input, and a JAG officer who worked closely with the PEB at WRAMC told him the PEB consisted of three officers, of which only one was a physician * in some cases, they depended solely on MEB write-ups and addenda to complete a Soldier's case * if these MEB write-ups and addenda were incomplete, a lesser disability rating would result; as such, he requested this extension to insure all information was compiled prior to forwarding his MEB packet l. DA Form 3947, dated 20 June 2000, indicates an MEB was convened and, among other listed medical conditions, he was found to be failing medical retention standards for unstable insulin-dependent diabetes. (1) Item 12 states, "The patient did not present views in own behalf." (2) Item 14 indicates his case was forwarded to a PEB for fitness determination. (3) In item 15, it states, "The patient does not desire to continue on active duty [COAD] under AR 635-40." This block also shows the applicant's initials. (4) Under the heading, "Action by Patient," in item 24, it shows the applicant agreed with the MEB's findings and recommendations. He signed it on 23 June 2000. m. Memorandum, dated 26 June 2000, Subject: Request for Discontinuance on Active Duty, signed by the applicant. This document essentially states, if found unfit by the PEB, he requested to discontinue his active duty service [i.e. COAD]. n. DA Form 199, dated 29 June 2000, wherein a PEB found him physically unfit for further military service and awarded him a disability rating of 40 percent for unstable diabetes mellitus requiring four supplemental insulin injections per day, and a 10 percent rating for right knee pain (combined disability rating of 50 percent). The diagnosis of major depressive disorder was reflected as not unfitting. (1) The PEB recommended placement on the permanent disability retired list (PDRL). (2) On 7 July 2000, the applicant concurred with the PEB's findings and recommendations, and waived his right to a formal hearing. o. Orders Number 206-0104, dated 24 July 2000, issued by U.S. Army Intelligence Center and Fort Huachuca, released the applicant from his assignment and from active duty because of physical disability effective 14 October 2000, with placement on the PDRL on 15 October 2000. His disability rating was 50 percent. p. His DD Form 214 shows he was honorably retired on 14 October 2000. It also reflects he completed 19 years, 4 months, and 26 days of net active creditable service. The narrative reason for separation is disability, permanent. 4. The applicant provides: a. MEB NARSUM, dated 19 October 1990, and an undated document, titled Consultation for MEB, both of which were part of his first MEB/PEB. The documents reflect a diagnosis of Type 2 diabetes. The MEB NARSUM notes the applicant had claimed to have had a 26 pound weight loss (189 to 163). It also notes his weight, when evaluated, was 173 pounds. b. Consultation for MEB, undated but, based upon the information contained, it was apparently completed in or around 1998, when the applicant was assigned to a unit in Germany. Dr. RSC, an endocrinologist with Landstuhl Regional Medical Center, prepared the document. It essentially states: * chief complaint: diabetes mellitus type 2, insulin-requiring * why referred: the applicant's diabetes is insulin-requiring and, in accordance with AR 40-501, fails medical retention standards because the diabetes requires medication to be controlled * the applicant underwent a previous MEB; he was retained on active duty, but he has had problems controlling his diabetes; as a result his permanent profile was revised and he was re-referred for evaluation * under the heading, history of present illness: * diabetes was first diagnosed in 1987; he has been on insulin since 1988 * he was given a P3 profile and underwent an MEB/PEB in 1991, and was retained on active duty * since his assignment to his current unit in Germany, he has had marginal to poor control of his diabetes * this is related to deployments to Bosnia and training exercises at Grafenwoehr (a training center in Germany) * when on a set schedule, the applicant reported good control of his diabetes, with glucose levels running in the range of 120 to 140 mg/dl [normal is 70 to 110 mg/dl] * he is able to do PT at his own pace and pass the APFT; but, as a senior NCO, he felt obligated to set the example * he has not been able to keep pace during unit runs and exhibited symptoms of hypoglycemia (low blood sugar); as a result his unit commander barred his participation in unit runs * with an improved schedule, and attention to his glucose readings, the applicant's diabetes control improved * laboratory data: glucose - 214; hemoglobin A1C - 7.5 * consultations: the applicant has type 2 diabetes which is controlled by insulin, and the applicant's compliance with activity and dietary recommendations * he is highly motivated and, Dr. RSC believes, he can control his diabetes well, given the proper work environment * his treatment with insulin requires access to refrigeration, and that he have ready access to a physician and an emergency room 24 hours a day * after discussion with the applicant's commander, these restrictions require him to be assigned to a non-tactical , non-deployable unit * Dr. RSC's experience with the applicant suggested he would place unit and mission ahead of the control of his diabetes * based on this, Dr. RSC stated it was imperative the applicant be assigned to a work situation that would support a lifestyle conducive to the control of his diabetes * present condition: the applicant developed fatigue and light-headedness when participating in 4-mile runs; he also developed more blood glucose variability when working on night shifts * he was otherwise able to complete his current duties c. A laboratory report from an Army Medical Center, dated 19 January 2012, for the period 5 December 2011 to 19 January 2012. The report reflects blood test results, to include blood glucose levels of 286 mg/dl on 8 December 2011, and 156 mg/dl on 12 January 2012 [normal range listed as 70 to 110 mg/dl]. d. A letter from a physician, dated 23 December 2015, that essentially states the applicant "may very well have presented with Type 1 diabetes in September 1990." 5. On 15 August 2016, an official from the Office of the Surgeon General (OTSG) provided an advisory opinion. a. Task: The Army Review Boards Agency requested an advisory opinion as to whether the applicant should be granted a correction of his military record in the form of a change in his retirement date to reflect 20 years of service, based on his contention he was forced out by an MEB/PEB completed 29 June 2000. (1) The Army discharged the applicant after he had served only 19 years, 4 months, and 26 days of active duty. The applicant asserted, with proper treatment, he could have remained on active duty and completed 20 years of service. (2) He also maintains the Army misdiagnosed his diabetes, type 1, as diabetes, type 2. This mistake contributed to his receipt of inappropriate treatment. (3) He further requests CRDP. b. Background: In January 1987, when the applicant was a staff sergeant (SSG), he was diagnosed with diabetes mellitus, type 2, based on a routine fasting blood glucose (sugar) test. He was placed on a diet and an oral regimen with a hyperglycemic (referring to high blood sugar) agent [used for lowering glucose levels]. (1) Over the ensuing months, his glucose seemed to respond to the treatment, and he remained within acceptable ranges. However, in the fall of 1990, he developed severe symptoms of diabetes, to include polyuria (production of abnormally large volumes of urine), weakness, blurred vision, tingling in his extremities, cramps, and a 26-pound weight loss over a 3-week period. (2) These symptoms prompted a hospital admission, during which a fasting blood glucose of 349 milligrams (mg) per deciliter (dl) and post-prandial (after a meal) glucose sugars in the 500 to 600 mg/dl range (normal is 70 to 110 mg/dl). The attending physicians felt he needed to receive insulin for blood glucose control. (3) He was begun on a regimen of insulin, and was referred to an MEB in accordance with Army Regulation (AR) 40-501, paragraph 3-11(Endocrine and Metabolic Disorders), subparagraph d (Diabetes Mellitus). (4) The older version of AR 40-501 is not available, but the current version has the same paragraph number (paragraph 3-11(d)) for diabetes. It states a Soldier should be referred to an MEB for diabetes mellitus, unless hemoglobin A1C can be maintained at less than 7 percent using only lifestyle modifications (i.e. diet, exercise). [A1C refers to a molecule in the blood, and describes when hemoglobin is bound with glucose (reflected as hemoglobin A1C, or HbA1c). The A1C test is used to diagnose diabetes; it is calculated by taking blood glucose readings over time, then averaging those readings, and entering that number into the formula shown below; generally a score of 5.6 or below is considered normal: 46.7 + Average blood glucose / 28.7 = A1C In 2000, when the applicant was referred to an MEB, the version of AR 40-501 in effect at that time did not include A1C testing; it stated a Soldier needed an MEB when his/her diabetes mellitus was proven to require hypoglycemic drugs (i.e. insulin) drugs in addition to restrictive diet for control] (5) The MEB found the applicant failed retention standards, and referred his case to a PEB on or about 19 October 1990. On 6 March 1991 [sic. 13 February 1991], the PEB rendered a decision, and found him fit for duty, based on the assumption he would be in a unit of assignment that could permit keeping his insulin in a protected environment (i.e. requiring refrigeration, for the most part). (6) It is noteworthy that, according to the MEB narrative, the applicant's diabetes had been under control when he had better control of his environmental and dietary conditions (scheduled meals and easy access to insulin). (7) Sometime in June 2000 [sic, the following information came from a document titled Consultation for MEB, prepared in or around 1998], the applicant (now an SFC) was noted to have a more difficult time controlling his diabetes. Because he was assigned to a deployable unit, he was referred for a second time to an MEB. (8) The MEB narrator noted that since his assignment to his unit in Germany, he had marginal to poor control of his diabetes mellitus. This was related to deployments to Bosnia, and training exercises at Grafenwoehr, where the applicant was required to eat MREs (meals-ready-to-eat) and work alternating schedules. (9) The MEB narrator continued, when on a set schedule, the applicant reported good control of his diabetes. He was able to do PT at his own pace, but, because he was a senior NCO, he felt an obligation to set an example. He was not able to keep pace with unit runs, and exhibited symptoms of hypoglycemia (low blood sugar) during the runs. As a result, the unit commander barred his participation. The MEB narrator concluded, with an improved schedule and attention to his glucose reading, the applicant's diabetic control improved. (10) The MEB (in 2000) again found he failed medical retention standards, however, this time, the PEB rendered a decision on 29 June 2000, finding he was unfit for continued military service. He was given a combined disability rating of 50 percent (40 percent for diabetes and 10 percent for his right knee). (11) The PEB proceeding noted his diabetes was unstable, and that the applicant had to have up to four supplemental insulin injections daily to control his blood sugar. Additionally, his failure to regulate his diet and his physical activities caused his blood sugars to exceed 200 mg/dl in many instances. The applicant also had reports of hypoglycemic (low blood sugar) episodes, with hemoglobin A1C levels of 8.8 to 9.2. Considering all of these issues, the PEB confirmed his failure of medical retention standards, and that he did not meet fitness for duty requirements. (12) His effective date of retirement was set as 14 October 2000. After some years, the applicant submitted a June 2015 Congressional inquiry seeking corrections to his military record. When he had not heard from any agencies, he sent another inquiry that led to this advisory opinion. c. Discussion. (1) In accordance with AR 40-501, various medical conditions and physical defects may render a Soldier as unfit for further military service when they: * significantly limit or interfere with the Soldier's performance of duties * may compromise or aggravate the Soldier's health or well-being, were they to remain in military service; this may involve dependence on certain medications, appliances, severe dietary restrictions, or frequent special treatments, or a requirement for frequent clinical monitoring * may compromise the health or well-being of other Soldiers * may prejudice the best interests of the government were the Soldier to remain in military service (2) Under the current medical standards lexicon, this failure corresponds to the Soldier reaching his/her medical retention determination point (MRDP). During the period the applicant was separated, the concept of MRDP was referred to as reaching the "optimal medical benefit." (3) Clearly, based on the accompanying documents submitted by the applicant, he had reached that point when he was referred to an MEB. * the stated actions by his command note that he could not keep up with the Soldiers in his unit * he had hypoglycemic (low blood sugar) episodes weekly, that could have led to unconsciousness * he had to have strict dietary management, which was not possible in a deployed or field training environment * the applicant met at least three of the four conditions stipulated for MEB referral (4) The applicant notes he was incorrectly diagnosed as a Type 2 diabetic. In support of this claim, he provides a note from his diabetologist, Dr. SZ. Dr. SZ writes, "PATIENT MAY VERY WELL HAVE PRESENTED WITH TYPE 1 DIABETES IN SEPT (September) 1990... I SUPPORT THE DIAGNOSIS OF TYPE 1 DIABETES IN 1990." (5) The applicant contends that treating his Type 1 diabetes without knowledge of the specific type led to his blood sugars being out of control, and that this hastened his separation. He adds that an insulin pump would have allowed him to continue on active duty because it would have given him better blood sugar controls. (6) As noted above, however, the dependence on certain medications and appliances would have still caused his medical providers to refer him to an MEB. (7) Additionally, the OTSG official included an article written by Dr. LRR regarding the "Reemergence of Insulin Pump Therapy in the 1990s." This article states, at the start of its use, insulin pump therapy was very difficult, and required many factors such as "motivated, compulsive patients, free of complication, at specialized diabetes centers. The risk of hypoglycemia (low blood sugar) was believed to be so great that patients with hypoglycemic unawareness were generally excluded from this therapy." (8) The article also indicated patients who were managed with multiple daily injections of insulin fell into the category of receiving intensive therapy. The applicant's medical providers managed him with this protocol. (9) AR 40-501 does not delineate between Types 1 and 2 for diabetes. The regulation just informs medical providers of the criteria needed to determine a Soldier's physical ability to continue on active duty. (10) In the treatment of Type 1 or Type 2 diabetes requiring insulin, the medical practice at the time of the applicant's separation appears to have been appropriate. The OTSG official attempted to contact Dr. SZ, but was unable to get a reply before the suspense date of the advisory opinion. (11) Even though the applicant has been on an insulin pump regimen for some years, the information he submitted indicates he still has not achieved good blood sugar control. * on 6 November 2001, his Hemoglobin A1C was 8.6 percent (normal is 4 to 6 percent) * on 1 December 2011, his glucose level was 289 mg/dl (normal is 70 to 110 mg/dl) * on 6 January 2012, his blood glucose level was 156 mg/dl * on 15 April 2015, Dr. SZ noted that, while on the insulin pump, his glucose was uncontrolled (12) The applicant had 19 years, 4 months, and 26 days of active service at his separation. In the packet he submitted, he included a memorandum, dated 26 June 2000, in which he declined consideration for COAD if found physically unfit due to disability. * the OTSG official spoke with Lieutenant Colonel (LTC) KD, Medical Policy Branch (within OTSG), who was able to obtain specific information with regard to the applicant's case * LTC KD found the applicant was informed of his opportunity to COAD, or to enter Continuance of Active Reserve (COAR) service, and there was a statement, dated 7 July 2000, that confirmed this * LTC KD was assisted by Ms. FD of the U.S. Army Physical Disability Agency in obtaining this information * in discussing the case with Ms. FD, it surfaced that the MEB also included a diagnosis of major depression, but that the PEB did not find this condition as unfitting * this diagnosis was not addressed by the applicant, but may have played a role in his overall case d. Conclusion. (1) The applicant's claim of a misdiagnosis of his diabetes has no merit. * the Army considers whether a Soldier's treatment fails to permit him/her to perform his/her duties; reaching MDRP * based on the provided documents, the applicant failed in several areas, and the treatment rendered was appropriate * the use of insulin pumps was not a part of the medical treatment plan for Soldiers during the 1990s, but multiple dose regimens [of insulin] was a form of intensive therapy for diabetic control * the MEB did not have to distinguish the types of diabetes, but it needed to determine if the condition failed medical retention standards * the applicant did fail medical retention standards; he was not forced out, and his documents reflect he agreed with the MEB's findings (2) Even years after the completion of his MEB/PEB, the applicant still has difficulty controlling his blood sugars. He uses an insulin pump and takes oral hypoglycemic medications. Despite this, he has had significant complications over the years due to his diabetes being out of control. Given the fact his environment and dietary conditions are now more stable and predictable, the OTSG official assumes that, during his active duty, he would not have been able to maintain them to the degree necessary to meet medical retention standards. (3) The applicant requests CRDP due to his falling short of a full 20-year retirement. [Until the introduction of CRDP in 2004, it was against the law to receive both military retirement pay and VA disability compensation. When the Veteran chose to receive VA disability compensation, the amount of VA compensation was deducted from military retired pay. CRDP permitted the payment of both, given certain criteria, to include having a disability rating of 50 percent or more when the retiree had 20 years or more of active service. CRDP was not allowed if the Soldier was a disability retiree with a VA disability rating of 50 percent or more, but the sole reason for separation was based on disability.] (4) In several instances from June to July 2000, however, he had the opportunity and refused to elect COAD. (5) A review of his MEB/PEB revealed his major depression failed medical retention standards, and this condition was not found as unfitting by the PEB. * the psychiatrist stated the applicant was mentally capable of understanding the PEB proceeding * his condition, however, was manifesting psychomotor retardation, dysphoria, anhedonia (inability to feel pleasure), and a decreased ability to concentrate * these manifestations may have contributed to his apparent inability to comprehend the counseling he received e. Recommendations. (1) The applicant should ask to redress his military record with regard to his major depression. (2) He should also readdress his mental status when he failed to elect COAD during his separation processing. 6. On 16 September 2016, the Case Management Division (CMD), Army Review Boards Agency, provided the applicant a copy of the advisory opinion. He provided a rebuttal, with 40 enclosures. a. His rebuttal essentially stated: (1) Dr. MPW (his medical provider in 2000 at Fort Huachuca) was never qualified to initiate an MEB according to AR 40-400 (Medical Services - Patient Administration) [apparently citing the version currently in effect as the regulation in effect at the time did not contain these requirements]. * during the time Dr. MPW was his doctor and was treating him for his diabetes, he had just started working for the military (citing an enclosure with Dr. MPW's contract) * his degree was from England, and was as a civilian general practitioner; he never served in the Army * "[Dr. MPW] was not and [sic] Endocrinologist, specialized with handling diabetes patients;" the applicant asserts he (the applicant) was probably Dr. MPW's first MEB attempt * Dr. MPW initiated, all by himself, the applicant's last MEB for diabetes, depression, and a right knee injury, and he hand-wrote his diagnoses on a permanent profile * the permanent profile was issued without evaluations being made by, and without the signatures of, two other doctors * Dr. MPW was neither an endocrinologist (diabetes), a psychiatrist (depression), nor an orthopedic physician (knee); in accordance with AR 40-400, he was not qualified to make these diagnoses * Dr. MPW also made reference to laboratory results from the applicant's last physical because the Fort Huachuca laboratory was not able to perform tests at that moment * he tried to override the applicant's previous PEB determination of fit for duty; this was a violation of AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) * Dr. MPW was unfamiliar with the retention requirements for his military occupational specialty * according to AR 40-400, paragraph 5-6 (Length of Hospitalization for AD (active duty) Army Soldiers), subparagraph a, states: "Army personnel on AD for more than 30 days who are likely to be medically fit for return to duty within 12 months are given maximum hospital benefits" * paragraph 5-6b states, "Patients not likely to be medically fit for return to duty within 12 months will be processed for disposition after receiving optimum hospital benefit" "An MEB/PEB is appropriate because these patients may continue treatment in a TDRL (temporary disability retired list)/PDRL retired list status" * Dr. MPW's attempt to remove him from the service without 12 months of assessments to see if his diabetes, depression, and/or right knee would improve is a violation with AR 40-400 * based on this violation, the MEB documentation, and even some of his medical assessments, should be removed from his records and voided (2) Dr. MPW's "Reason for Medical Board" lacks accurate statements, as is required by AR 40-501, chapter 3. As a non-endocrinologist, he incorrectly calculated the applicant's Hemoglobin A1C. He showed the applicant's A1C as 9.2 and 8.8. The correct calculations actually were 6.7 and 6.2, both of which are well below the medical retention standard of 7.0 A1C. (3) As a non-psychiatrist, he diagnosed his depression without the 90 days outlined in AR 40-400, paragraph 5-14b (Psychiatric Patients). [Paragraph 5-14b states: "At MTFs (Medical Treatment Facilities) designated as psychiatric STSs (specialized treatment service), patients with psychosis ordinarily will undergo prolonged periods of observation to determine the permanency of the disability. The patient's response to treatment will be evaluated as soon as practicable after a definite diagnosis has been made. When treatment does not result in substantial improvement, disposition will be made as quickly as practicable. Usually intensive treatment for a period of under 90 days will be sufficient to establish the degree of disability and provide optimum improvement."] (4) Dr. BCF, the psychiatrist, saw him only once, and that was for the MEB addendum. He too did not qualify to fully diagnose his mental health, according to AR 40-400 (apparently referring to the 90-day period cited above). (5) As a non-orthopedic doctor, Dr. MPW wrongly diagnosed his right knee injury a month after surgery, wherein the surgeon scraped and removed all arthritis from his right knee. Additionally, Dr. MPW's clinical notes were from a doctor who never saw the applicant. The applicant saw Dr. JP for his knee surgery. (6) The "Reasons for Medical Board" document did not meet the requirements of paragraph 7-24 (Records Sent to a PEB), AR 40-400. [The applicant then lists requirements actually named in paragraph 7-9 (Preparing MEB Narrative Summaries)]. Based on this, both the "Reasons for Medical Board" document and the PEB that followed should be voided. (7) As for his cognizant ability during the period in question, besides depression, he was prescribed Celexa, Naprosyn (anti-inflammatory for arthritic pain), and received two Depo-Medrol injections (for treating pain and swelling from arthritis) for his right knee. Each of these drugs had a number of negative side effects, to include: * Depo-Medrol - aggressive reaction, agitation, anxiety, depression, emotional instability, psychosis, stupor (emotionally numb) * Celexa - abnormal dreams, anxiety, depression, psychosis, stupor * the combination of these medications gave him severe headaches with a fever (8) He has no recollection of signing any forms associated with COAD. During this time, he was suffering from depression and had been given different mind-effecting medications. He does not remember his PEB liaison officer (PEBLO) briefing him on COAD options. At the time, he felt his career was lost. He had tried to be assigned to the Military Intelligence Academy as an instructor, but lost this assignment because of his ongoing MEB. His JAG (Judge Advocate General legal counsel) told him he did not have a "leg to stand on." Everything negative was happening at once. (9) As to why he waited 15 years to address this change to his records, there are two reasons. The first was he learned the Army had misdiagnosed his diabetes, showing it as Type 2 instead of Type 1. The second was, a year ago he learned of a lawsuit that had been brought against the ABCMR, with the result that the submission limit of 3 years after separation was extended to 15 years. He realized he fell within this window, and he applied to restore his dignity and honor by not letting his diabetes control him, but by controlling his diabetes. (10) His diabetes did not "kick him out" in 1991. He proved his self-worth as a Soldier with diabetes, and he exceeded the average Soldier. (11) He actually wanted to stay in the Army for 22 years so that he and his wife (then a SSG) could retire together (she later retired in 2003). They had just bought a house together, and they were using his higher SFC/E-7 housing allowance to pay for it. They did not want to suffer the financial hardship the loss of career pay would cause, along with the subsequent loss of retirement benefit due to the Disabled Veterans Tax (i.e. concurrent receipt). (12) If he had wanted to get out of the Army, he would not have gone to Walter Reed Army Medical Center (WRAMC) 2 years earlier to fight his command's effort to separate him. He won his case and was retained, after which he was transferred to Fort Huachuca. It was at Fort Huachuca that Dr. MPW, an unqualified doctor, tried to rapidly remove him from the Army. (13) Because of the numerous regulatory violations performed, mostly by Dr. MPW, his MEB/PEB records from 2000 should be voided and removed from his records. Additionally, his separation orders should be voided and removed, so he can be permitted to complete 20 years of active service. b. He provided a document, titled Greater Evidence Provided, in which he wrote, in effect: (1) Background. His initial PEB listed him as "fit for military service" in accordance with AR 635-40. It also stated, "if the Soldier was not scheduled for separation or retirement for reasons other than physical disability, the Soldier should be returned to duty. When a Soldier is returned to duty and is incapable of satisfactorily performing PMOS (primary MOS) duties because of disability, action should be initiated to again refer the Soldier into the disability evaluation system for reevaluation." (2) While he was in Germany, Major General (MG) LE attempted to usurp these findings and ordered Colonel (COL) DJR to set up an MMRB. COL DJR made himself the president of this board, and attempted to forward selected Soldiers (to include the applicant) for disability separations. In doing this, COL DJR violated AR 635-40 by disregarding the applicant's previous PEB findings. When he signed the MMRB results, COL DJR was mocking the system with a direct conflict of interest. In the recommendations for the MMRB it stated, "in view of these findings, the board recommends [applicant] be referred to an MEB/PEB." MG LE, in turn, signed his own recommendation. (3) The applicant had to hire an attorney in the continental U.S. (CONUS), pay for a ticket to Washington, D.C., as well as the hotel expense, and go to WRAMC to appeal the MMRB results. He won his case, and the MEB/PEB recommendation was voided. (4) Having his career, family, and retirement being placed in question was a traumatic event for him. He sought out mental health help, and was diagnosed with depression. His next company commander noticed a severe drop in his mental performance, and wrote the most negative NCO evaluation report (NCOER) of his career. He was, by that point, placed on multiple anti-depressant medications as his mental health providers tried to find the best medication. (5) When he arrived at Fort Huachuca, he sought out medical help at RWBAHC for his diabetes and the increasing pain he felt in his right knee. (6) Right knee. Dr. JD examined his knee and left ankle. He indicated the left ankle was likely the result of an old fracture, but prescribed Naprosyn for pain, along with physical therapy and an ultrasound for his knee. * after months of physical therapy, the applicant initially showed improvement until his meniscus split further * Dr. JD discussed the possibility of injecting his knee with Depo-Medrol, but said this medication could affect his blood sugar levels * as an alternative, he mentioned surgery for his knee; because he wanted to keep his diabetes stable, and due to "accusations [he] was receiving from Dr. MPW" the applicant agreed to the surgery (7) Following his surgery, during which Dr. JD removed the arthritis from his knee, the applicant was prescribed Depo-Medrol. The applicant again noted this medication's side effects (listed above). On his fourth follow-up visit with Dr. JD, the doctor injected his knee with Depo-Medrol. Dr. JD reminded him the injection would likely affect his blood sugar levels. (8) On his sixth follow-up visit, Dr. JD mentioned Dr. MPW had contacted him regarding the MEB. Dr. JD said he believed it was too early to make any assessment as to his knee, but said his supervisor, LTC PL, might be involved. The applicant asked for a permanent profile for his knee. The applicant does not recall ever seeing LTC PL. (9) The applicant reiterated his assertion that he was not permitted 12 months prior to referral to an MEB/PEB, and contended his right knee was not allowed to improve. (10) Diabetes/Depression/Right Knee diagnoses from Dr. MPW. The applicant again described Dr. MPW as being unqualified to make these diagnoses and, as a general practitioner, should not have changed his diabetes medications. * during his first appointment with Dr. MPW, he changed his insulin dosage; he stated the applicant's blood sugar fluctuated as a result of his limited bicycle exercises * Dr. MPW noticed his symptoms of depression; the applicant's weight at the time was 220 pounds * Dr. MPW did not think the side-effects of the Naprosyn was adding to his symptoms of depression * during his second appointment, Dr. MPW changed his short-term insulin, and gave a new sliding scale based on blood sugar testing performed at home * Dr. MPW seemed to feel minor reactions resulting from low insulin, and glucose levels above 200, were major concerns * he told the applicant his A1C was 9.2, but he became irritated when asked to show these results; also, other doctors were not permitted to see the applicant's laboratory results; his weight at this visit was 208.2 pounds (11) The A1C results of 9.2 must have been an error. A1C is derived from the average of blood sugar readings over a 3-month period. The Blood Sugar Levels Chart in his health record showed some highs and some lows, but it is the average that counts. If Dr. MPW only looked at the applicant's high blood sugars instead of averaging them, it may have caused him to incorrectly calculate his A1C as 9.2. (12) An endocrinologist would have known how to properly assess his blood glucose readings. The overall average for the Blood Sugar Levels Chart is 146.56, and this number results in an A1C of 6.7 (46.7+146.56/28.7=6.7). This score is just below the 7.0 A1C used for determining the medical retention standard stated in AR 40-501, paragraph 3-11. Additionally, his HbA1c was deemed stable by his last endocrinologist in Germany. The applicant provides a Diabetes Control Chart that shows ranges of numbers in the categories of HbA1c, mean blood sugar, and glucose. (13) His third appointment with Dr. MPW was distressing. Dr. MPW seemed upset, and he might have been projecting this attitude toward the applicant. The applicant's weight had increased from 208.2 to 215 pounds. This weight increase may be been influenced by the Naprosyn, the Depo-Medrol, and/or by the fact he had more items in the cargo pockets of his uniform. At his first appointment with Dr. MPW, his weight was 220 pounds. Instead of noting an improvement in his weight, by comparison, Dr. MPW accused him of gaining 15 pounds. This too was an error, as his weight had only increased by 7 pounds. (14) During this third appointment, Dr. MPW told him he was submitting the applicant for an MEB. Instantly, the applicant's depression seemed to worsen, and Dr. MPW noticed. Dr. MPW reported the applicant's flat affect, apparent feelings of depression, and the applicant's remark that he felt he needed to see someone. It is possible that, in that moment, he was reliving his earlier PEB fight, or feeling the effects of his medications. Dr. MPW blamed everything on the applicant, as if he alone was to blame for his diabetic condition and his weight gain. He told the applicant the main reason people became diabetic was weight gain. This statement assumed his diabetes was Type 2, not Type 1. (15) Dr. MPW believed the applicant's depression deserved an immediate MEB, without any input from a psychiatrist. He also believed the applicant's knee injury necessitated an immediate MEB. He knew he was ending the applicant's career as he gave him no choice. He did not take into account the effects Depo-Medrol might be having on his blood glucose levels. As such, these medical pages should be removed from his medical records. (16) The applicant stated again that he thought his case was Dr. MPW's first attempt at MEB referral. He also restated his assertions that Dr. MPW was unqualified, and that his actions violated both AR 40-400 and AR 635-40. He once again went on to describe Dr. MPW's efforts to have Dr. JD "write a statement for the Med Board concerning [the applicant's] R Knee." The applicant contended this request was an attempt to expedite his separation, and he reasserted Dr. MPW must have realized the regulation did not authorize him to make an MEB addendum for an orthopedic issue. (17) The applicant states his depression "kicked in" and, in effect, he felt hopeless. He asked JAG for help, but they treated his situation as a joke. Dr. MPW made an appointment for the applicant to see Dr. BCF (psychiatrist). The applicant affirms he never requested this appointment and, by making this appointment, it is evident Dr. MPW realized he was not permitted by regulation to make an MEB addendum on a psychiatric issue. (18) Dr. BCF diagnosed his depression as reoccurring, and prescribed Celexa. The applicant reiterated this drug's side effects. He also noted, once he realized the side effects of the Celexa and Naprosyn, he stopped taking both medications. After he stopped taking these medications, his headaches and fever disappeared. (19) On his fourth visit with Dr. MPW, the doctor scrutinized his glucose levels and talked about the prescribed depression and pain medications. He also said the applicant's last A1C was 8.8, but again refused to let him see the test results. By his computation, Dr. MPW erred again because the applicant's average glucose levels were 132.28, which would give an A1C of only 6.2. (20) Dr. MPW wanted to prescribe a 50 percent increase of his Ultralente (a long acting insulin). The applicant objected, insisting this was too much and would cause him to be hospitalized. Dr. MPW became irritated, and again threatened the MEB. He showed the applicant a new DA Form 3349 (Physical Profile), now signed by two doctors, neither of whom were known to the applicant. The applicant then reiterated his contention Dr. MPW was not qualified and his diagnoses should be voided. (21) Upon recent analysis of all of his laboratory results, the applicant notes none included any A1C tests. He states, the American Diabetes Association did not recommend using A1C tests until 2010. Because no laboratory results were added to his records by Dr. MPW, and because A1C testing was not performed before 12 May 2000, all laboratory results should be voided and removed. (22) On 24 April 2000, Dr. BCF, the psychiatrist, prepared the psychiatric addendum for the MEB. Dr. BCF based this addendum on an appointment with the applicant. Dr. BCF did not meet the requirements of AR 40-400, paragraph 5-14b, in that the regulation requires intensive treatment for a period under 90 days, and states this is usually sufficient to establish the degree of disability. One or two visits with Dr. BCF did not meet this criterion for determining disability. As such, his addendum should be voided and removed. (23) His company commander signed the MEB profile on 12 May 2000. The applicant felt totally helpless, worthless, and hopeless. The applicant asserts this document should be removed based on his contention Dr. MPW did not meet the requirements of AR 40-400. (24) His fifth and last appointment with Dr. MPW again scrutinized his blood sugars over 200. * he told the applicant his blood sugars were unstable * he noted the applicant's weight had gone down, and indicated the applicant was suffering from a virus, but failed to list the cause (i.e. the combination of Celexa and Naprosyn) * Dr. MPW stated the combination of Celexa and Naprosyn gave the applicant a severe headache and, as a result, stopped both medications * Dr. MPW went on to say Dr. BCF wanted the applicant to stay off Celexa for a month, after which he would reassess * the applicant poses the question, "does this mean [he had not been] fully assessed according to AR 40-400?" (25) Dr. MDW again changed his dosage of Ultralente without consulting an endocrinologist. He noted the applicant's worsening peripheral neuropathy, but did not mention this as a side effect of Celexa. As such, the applicant asserts these pages should be removed from his medical records. (26) On 24 May 2000, clinical notes from LTC (Dr.) PL of the orthopedic clinic. The notes were unsigned, but the writer was identified as the PEBLO [sic, document shows it was completed by LTC PL, but form also reflects copies were furnished to others, including the applicant's PEBLO]. It did not state that it was an addendum for the MEB. * the writer mistakenly discussed knee surgery on his left knee, but later changed it to a discussion of his right knee * the applicant's left ankle is mentioned in the context of hurting when reinjured, but the writer failed to mention the normal 3-day period an ankle usually needs to recover * the writer noted radiographic (x-ray) results, stating they showed "marked osteoarthrosis or other conditions," but then contradicted this statement by writing, "mild to moderate degenerative arthritis of the right knee" * Dr. PL was not present during his knee surgery, nor did he see the applicant's arthritis * the applicant contends Dr. PL misstated the type of surgery he received, and incorrectly indicated the surgery was for his left knee * the writer also noted the applicant was "in the recovery" of his surgery, suggesting full recovery had not yet occurred * the writer described his right knee range of motion as being from about 10 degrees to 125 degrees of flexion; the reading of 10 degrees of flexion was last determined on 19 January 2000 * two March 2000 visits with Dr. JD showed his flexion had actually improved to 5 degrees * on the basis of the later findings, these notes should be voided and removed (27) On 2 June 2000, Dr. MPW signed the "Reason for Medical Board." The applicant asserts this document contains many inaccuracies, omissions, and misstatements. * he made no mention of the applicant's previous PEB, which the applicant asserts violated AR 635-40 * he stated the applicant's diabetes was "somewhat unstable;" rather, his blood glucose levels actually dictated minor daily instability, but when his quarterly HbA1c levels are calculated, they show his blood glucose levels were, in fact, stable * Dr. MPW wrote, "the fluctuations in his blood sugars were exacerbated by the requirement that he perform PT some days of the week, and not others" * this statement disregarded the reason for the lack of exercise, i.e. his recent knee surgery * Dr. MPW failed to identify the two Depo-Medrol injections as being a cause for the fluctuations in blood sugars * Dr. MPW described how it had been arranged for the applicant to perform the same amount of PT daily, and that this seemed to improve blood glucose control * despite this change in PT schedule, Dr. MPW stated the applicant still had blood glucose levels over 200 mg, and experienced overnight hypoglycemic attacks about once a week * his statement ignored that his right knee was healing, and this allowed him to exercise more * Dr. MPW also mentioned his peripheral neuropathy, manifested by numbness in the toes of both feet; this comment disregarded the Depo-Medrol side effects of numbness or tingling in the legs (28) With regard to his depression, Dr. MPW wrote: * major depressive disorder developed in 1998, and had only partially responded to treatment; the applicant affirmed the medications he was given did not stabilize his depression * the applicant further states the Celexa and Naprosyn, when combined, caused him to have a fever and severe headaches; he stopped taking these medications because of this * he contends his depression could not be properly assessed after he stopped the medications, and reiterates that he did not receive the 90 days of evaluation he asserts is mandated by AR 40-400 (29) As to his right knee, Dr. MPW wrote: * the applicant was continuing rehabilitative physical therapy; but he failed to mention how the lack of exercise was affecting his diabetes * MEB referral also meant he was not being allowed to optimally recover from surgery * Dr. MPW mentioned his left ankle, and cited the unsigned MEB addendum completed by Dr. PL, which contained inaccuracies (30) Regarding medications, Dr. MPW did not list the correct medications he was taking at the time. Ultralente is shown, but the applicant was actually taking Humalog (a fast-acting insulin). He also failed to state the many dosages of insulin he (Dr. MPW) had changed during the applicant's five visits. (31) Under the heading of Discussion, Dr. MPW wrote: * the applicant's unstable diabetes rendered him nondeployable, even though he had deployed to numerous training exercises as a diabetic during his prior assignments * his diabetes was "somewhat unstable," but statement was based on inaccurately calculated Hb1Ac readings * Dr. MPW said the applicant's major depression meant he could not assume any leadership role, despite the fact he was then serving as a platoon sergeant * Dr. MPW cited paragraphs 3-11b (dealing with adrenal hyperfunction) [sic, should be paragraph 3-11d for diabetes], 3-34 (Organic Mental Disorders), and 3-13c(2) (Joint Ranges of Motion - Knee) of AR 40-501 * the applicant cites the current version of AR 40-501 that shows the medical retention standard as an A1C score of less than 7 percent using only lifestyle modifications (i.e. not requiring insulin) [the version of AR 40-501 in effect in 2000 stated the medical retention standard as being when a Soldier's diabetes mellitus was proven to require hypoglycemic drugs (i.e. insulin) drugs in addition to restrictive diet for control; there is no mention of A1C scores] * he further notes his records show no laboratory results that reflect his A1C was ever tested; however, by his calculations, his A1C was below the regulatory 7 percent * he contends, again, he had already been found fit for duty by the 1991 PEB * additionally, he quotes that part of AR 40-400, as is currently in effect, requires a thorough evaluation of the impact of medical conditions on duty performance * he notes he was in a "desk job" and the severity of his diabetes had not changed since 1991 * he cites other provisions of AR 40-400 (current version) to support his assertion Dr. MPW's MEB referral was inaccurate * based on the cited provisions, it should be voided and removed along the entire MEB and PEB (32) He concludes by stating he wanted to stay in the Army. He was a subject matter expert in his field and had written numerous books. He described the success of one book in particular that was written on his home computer with the approval of the National Security Agency. He suggests he may have indirectly saved lives by the training he provided. His EOB (electronic order of battle) training aid was still being used in 2010 at Fort Huachuca. (33) He has no recollection of being counseled about COAD or about any associated forms/documents he purportedly signed. He notes, at the time, he was depressed, and taking different mind-effecting medications. In fact, the medications he was given during his last years of service may have temporarily aggravated his depression. When his knee got better, he was able to exercise, and this improved his diabetes. He closes by requesting his PEB be voided because the MEB violated AR 40-400 by not permitting him a full 12 months to recover, and because Dr. MPW violated AR 635-40 by disregarding his 1991 PEB results. c. Memorandum, undated, Subject: Summary of MMRB Proceedings, issued by Headquarters, 1st Armored Division Support Command, showed an MMRB had convened on 17 September 1997 to assess whether the applicant should be retained in his MOS, reclassified, or recommended for an MEB/PEB. * the applicant was present; all records and other pertinent information were reviewed * the board found the applicant's diabetes prevented him from performing duties in his MOS; he was unable to deploy, he had to have the availability of diabetic meals, and needed refrigeration for insulin * the concern was for his safety; any MOS had the possibility of deployment to a remote site where necessary medical care might not be available when needed * the applicant was a diabetic who required insulin shots; he needed access to a physician and emergency facilities at all times * although he could perform his MOS, he was a non-deployable Soldier who needed a stable environment; the board felt the Army could not provide for the applicant's specialized needs * the board agreed with the applicant's commander; he was a very competent Soldier who performed in an outstanding manner; he contributed greatly to his branch of service * it was very unfortunate his medical situation dictated his career path; his skill would be a great loss to the Army * the recommendation was for the applicant to be referred to an MEB/PEB d. Letter, dated 25 March 1998, sent by the U.S. Army PEB, WRAMC, notifying the applicant that his formal PEB was scheduled for 21 April 1998. No results of this PEB have been included. e. DA Form 3349, dated April 2000, showing P3 profile for "P" and "L." Under the heading "Action by Commander," the applicant's commander wrote: * this permanent change in profile did require a change in the applicant's MOS * the applicant was not deployable * while the physical requirements for the MOS and grade were minimal, deployability was a major issue given the Army's current rotation schedule and optempo (operational tempo) for this MOS REFERENCES: 1. AR 40-3 (Medical Services - Medical, Dental, and Veterinary Care), in effect in 1990 and 2000, assigned responsibilities and provided guidance on patient administration in Army medical facilities. This regulation prescribed procedures for MEB processing until its supersession by AR 40-400, dated 12 March 2001. a. Chapter 6 (Treatment and Disposition of Patients) addressed the disposition of military patients. (1) It required all patients to be evaluated for retention in military service. (2) The long-range effect, if any, on the health and well-being of the patient after return to regularly assigned duties will be considered. There is no inference a person who is unable to meet special standards but is otherwise fit for duty should be continued in a disabled status. (3) All administrative actions, to include MEB processing, will be taken as early as possible to expedite the eventual disposition of military patients. (4) Attending medical officers are responsible for the care of their assigned patients, and the patient's continual evaluation for early dispositions. b. Paragraph 6-12 (Psychotic Patients), MTFs designated as specialized treatment centers for psychiatry will have cases of psychosis undergo prolonged periods of observation to determine the permanency of the disability. The patient's response will be evaluated as soon as practicable after a definite diagnosis has been made. In most cases, intensive treatment for periods under 180 days will be sufficient to establish the degree of disability and provide optimum improvement. c. Chapter 7 (MEBs) stated MEBs were convened to document a service member's medical status and duty limitations insofar as duty was affected by the medical status. Decisions regarding fitness for further military duty was the prerogative of the PEB. d. Paragraph 7-3 (Composition) states MEBs are composed of two or more physicians. One will be a senior medical officer with detailed knowledge of directives pertaining to the standards of medical fitness, the disposition of patients, disability separation processing, and the Veterans Administration Schedule of Rating Disabilities (VASRD). The other members will be familiar with these matters. e. Paragraph 7-5 (Uses of MEBs) described when MEBs were used: * cases in which PEB referral was contemplated for other than Temporary Disability Retired List periodic examinations * for patients with medical conditions or physical defects that were usually progressive in nature and expectations for reasonable recovery could not be established * cases where a claim against the government could be expected * cases involving hospitalized patients whose medical fitness for return to duty was problematic or controversial * any other type of case determined necessary by the appointing authority f. Paragraph 7-7 (MEB Proceedings), states MEBs operate informally. Their members assemble to discuss and evaluate the patient's case. Clinical, health, and other records, as appropriate, are reviewed. When a patient's condition permits, he or she should be given the opportunity to appear in person to present his/her views relative to the proposed disposition. 2. AR 40-400, currently in effect, incorporates what was previously in AR 40-3 with regard to MEBs. Also, chapter 5 (Dispositioning Patients), outlines the policy that, before military outpatients or inpatients are returned to their units, they will be evaluated for duty restrictions. The long-range effect, if any, on the health and well-being of the patient after return to regularly assigned duties will be considered. 3. AR 40-501, both current and the regulation that was in effect at the time, provides medical retention standards and is used by MEBs to determine which medical conditions will be referred to a PEB. 4. AR 635-40 establishes the Army Physical Disability Evaluation System (PDES), and sets forth policies, responsibilities, and procedures for the evaluation of Soldiers who may be unfit to perform their military duties because of physical disability. a. Chapter 3 (Policies) states medical retention standards, as outlined in AR 40-501, were established to ensure all Soldiers are physically qualified to perform their duties in a reasonable manner. (1) These medical retention standards serve as guidelines for applying fitness decisions, and should not be interpreted to mean the possession of one or more the listed conditions automatically signifies disability retirement or separation. (2) The overall effect of all disabilities must be considered both from the standpoints of how the disabilities affect the Soldier's duty performance, and the requirements imposed on the Army to maintain and protect the Soldier in future duty assignments. (3) All relevant evidence must be considered when evaluating the fitness of a Soldier. Findings as to fitness or unfitness will be based on the preponderance of evidence. Evaluations of the performance of duty by supervisors may provide better evidence than a clinical estimate by the Soldier's physician. (4) Although the ability of a Soldier to reasonably perform his or her duties in all geographic locations under all conceivable circumstances is a key to maintaining an effective and fit force, this criterion (worldwide deployability) will not serve as the sole basis for a finding of unfitness. b. Paragraph 3-10 (COAD by Soldiers Unfit because of Physical Disability) states Headquarters, Department of the Army may defer the disposition of a Soldier who, although unfit, can still serve effectively with proper assignment limitations. The Soldier must consent to being deferred. (1) Basically, the physical disability must be stable or be a condition where accepted medical principles show a slow progression. (2) The Soldier must be able to maintain himself in a military environment without jeopardizing individual health or the health of others. Additionally, the Soldier must not require an excessive amount of medical care. (3) The Soldier will not be COAD solely to increase benefits, and will not be COAD unless retention will be of value to the Army. (4) Soldiers approved for COAD will be reevaluated when their term of service expires or requests a continuance on active duty. At the time of final retirement, the Soldier will be referred to an MEB/PEB. c. Appendix B (Army Application of the VASRD), implemented Congressional guidance for the use of the VASRD in rating decisions. Regarding diabetes, it stated: * the format published by the 1979 National Diabetes Group was to serve as the basis for classifying diabetes * PEBs were instructed to individualize the severity of each case, taking into account the expected natural course of the variants of diabetes * insulin dosage was, by itself, not a good indicator of the severity of this condition; PEBs should also look at response to specific therapy, diet, activity, compliance, and time * with adequate compliance, many diabetics are fit with minimum profile restrictions; this was particularly true of Type 2 (non-insulin dependent) cases, even when insulin was prescribed for optimum control * young adults with Type 1 (insulin dependent) were at high risk for retention * care needed to be taken to insure the rating reflected the severity of the diabetes 5. AR 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), currently in effect, prescribes policies and procedures for enlisted administrative separations. Chapter 12 (Retirement for Length of Service) outlines the requirements to be retired based on length of service. a. As stated in Title 10, U.S. Code, sections 3914 and 3917, Soldiers must be on active duty when they retire. b. A Soldier in the Regular Army who has completed 20, but less than 30 years of active Federal service in the U.S. Armed Forces may, at the discretion of the Secretary of the Army, be retired at his or her request. The Soldier must have completed all required service obligations at the time of retirement. 6. CRDP allows military retirees to receive both military retired pay and Department of Veterans Affairs (VA) compensation. Military retired pay is otherwise offset by the amount of VA compensation paid. a. This program became effective with a change in law on 1 January 2004, and, if qualified, military retirees are automatically enrolled. b. To be eligible, the military retiree must meet the following requirements: * a Regular Army length of service retiree with a VA disability rating of 50 percent or more; or * a U.S. Army Reserve retiree with 20 qualifying years of service, a VA disability rating of 50 percent or more, and who has reached retirement age (in most cases, this is age 60); or * retired under the Temporary Early Retirement Act, and has a VA disability rating of 50 percent or more; or * a disability retiree who earned the entitlement to retired pay under any provision of law other than solely by disability, and who has a VA disability rating of 50 percent or more 7. AR 15-185 (ABCMR) prescribes policies and procedures for the ABCMR. It states, the ABCMR considers individual applications that are properly brought before it. a. Paragraph 2-9 states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. b. Paragraph 3-1 states the Army, by law, may pay claims for amounts due to applicants because of the correction of military records. DISCUSSION: 1. The applicant initially requested the correction of his DD Form 214 to show a retirement date that gives him 20 years of active service. Concurrent with that request, he asked for back pay and CRDP. He additionally requested the correction of his record to show a diagnosis of Type 1 vs Type 2 diabetes. In his response to the OTSG advisory opinion, he amended his requests. He asked that his MEB and PEB from 2000 be voided, and for the removal of all associated documents and medical records. He also requested the revocation of his separation order (thus permitting him to return to active duty so he could serve the remaining 7 months and 5 days needed for 20 years of active service). 2. The applicant initially argued his retirement date should be amended to show he served 20 years of active service. His basis was that his disability retirement was, in effect, invalid because his medical condition, which he asserts was Type 1 diabetes, was misdiagnosed as Type 2. Because of this wrong diagnosis; the medications he received made his diabetes unstable, and necessitated his consideration for a disability retirement by an MEB and PEB. a. With regard to amending his retirement date to show he served 20 years of active service, there is no provision in either law or regulation that permits service credit to be granted unless the period in question is actually served. Additionally, neither the record, nor the applicant offer any indication his retirement date was not correctly stated on his DD Form 214. Because there does not appear to be a basis to change his date of retirement, there also is no justification for authorizing back pay and he does not appear eligible for CRDP. b. As to the validity of a diagnosis of Type 1 vs. Type 2 diabetes: * the advisory by OTSG noted AR 40-501 did not delineate between Types 1 and 2 for diabetes when determining medical retention * regardless of type, Soldiers with diabetes in or around 2000 were to be referred to an MEB when they needed to use hypoglycemic drugs (i.e. insulin), in addition to a restrictive diet * the evidence of record clearly shows the applicant had to have insulin multiple times each day in addition to following a strict diet c. Even assuming his argument, having Type 1 vs Type 2 would not have changed the fact he failed medical retention standards and, by regulation, necessitated referral to an MEB. Based on this, there does not appear to be a basis to revise his MEB/PEB documents to reflect Type 1 vs Type 2 diabetes as there is insufficient evidence of an error. d. With regard to whether he received proper treatment for the type of diabetes he had, the OTSG advisory states, "patients who were managed with multiple daily injections of insulin fell into the category of receiving intensive therapy. [The applicant's] providers managed him with this protocol." "In the treatment of Type 1 or Type 2 diabetes requiring insulin, the medical practice at the time of [the applicant's] separation seems to have been appropriate." 3. In his response to the OTSG advisory, the applicant modified his contentions. He asserted his MEB and PEB, conducted in 2000, should be voided, and his separation orders revoked. With these actions, his status would essentially revert to being on active duty, and he could then complete the remaining time needed to serve 20 years. a. His arguments for the voiding of the MEB and PEB are, in essence: * his MEB was erroneous because both his primary care physician and his psychiatrist were unqualified, in accordance with the current version of AR 40-400 * he also suggests his primary care physician essentially led a campaign to separate him from the Army * the fact his 1991 PEB, with its findings of fit for duty, were reconsidered violated AR 635-40 * his medical conditions were not given to appropriate assessment time * by virtue of the MEB being flawed, the PEB must also be considered flawed b. The evidence of record, however, shows neither AR 40-400 nor AR 635-40 support his arguments. (1) AR 40-400: * the applicant cites the current version of AR 40-400 to support his arguments; this regulation was not in effect at the time of his MEB/PEB in 2000; the regulation in effect was AR 40-3 * AR 40-3 required attending physicians to evaluate and provide proper disposition as expeditiously as possible for their assigned military patients * Dr. MPW was fulfilling his regulatory responsibilities as his primary care doctor * the provision the applicant cites with regard to not receiving 12 months of medical assessments, then, as now, framed this as being within 12 months, not requiring a full 12 month to transpire * he asserts he should have been evaluated over a 90-day period for his major depressive disorder, citing the current AR 40-400 * in both this version and AR 40-3, the context is for patients with psychosis; the applicant was not diagnosed with psychosis * additionally, in the context of a psychotic patient, the regulation states an assessment for disability purposes should be able to be accomplished in "a period of under 90 days" (2) AR 635-40: * Memorandum, dated 11 March 1991, Subject: Approval of PEB Action UP (under the provisions of) AR 635-40, sent by the U.S. Total Army Personnel Command, notified the commander, 97th General Hospital of the applicant's PEB results * it stated when a Soldier is returned to duty and is incapable of satisfactorily performing PMOS duties because of disability, the Soldier should again be referred into the disability evaluation system * based on this restatement of the requirements of AR 635-40, it was clearly appropriate to refer the applicant when he later failed medical retention standards c. As to his contention his primary care provider essentially led a campaign to separate him, the evidence of record does not substantiate this claim. (1) The applicant did fail the medical retention standards that were in effect in 2000. In fact, he had failed medical retention standards three times during the course of his career (1990, 1998, and 2000, respectively), each of which led to a referral into the Army's Physical Disability Evaluation System (PDES). (2) The key difference between his earlier referrals into the PDES and his referral in 2000 was how the PEB (not the MEB) responded. * in 1991, the PEB found him fit based on the assumption the restriction described by the MEB would not preclude him from fulfilling his duties * in 1998, after initially finding him unfit, a formal PEB determined he was fit based on the fact his medications were changing and, after a 6-month reevaluation period; his condition appeared to stabilize * the PEB in 2000 found he needed up to four insulin injections per day, and efforts to regulate diet and physical activities failed to prevent the development of neuropathy * the PEB further noted blood sugars over 200 mg/dl, and that he experienced episodes of hypoglycemia; his HbA1c was reflected as being high (3) In its guidance to PEBs, AR 635-40 states all relevant evidence must be considered when evaluating the fitness of a Soldier. Findings as to fitness or unfitness will be based on the preponderance of evidence. Evaluations of the performance of duty by supervisors may provide better evidence than a clinical estimate by the Soldier's physician. * in the DA Form 3349, dated April 2000, the applicant's commander noted, while the physical requirements for the MOS and grade were minimal, deployability was a major issue * this was because of changes in the Army's rotation schedule and optempo (operational tempo) for the applicant's MOS * the commander's performance statement, dated May 2000, highlighted the fact the applicant needed daily to eat meals at the same time and perform PT that expended the same energy daily * the commander acknowledged the applicant's efforts to fulfill his duty requirements, but stated he felt the applicant should be separated due to his medical restrictions (4) By regulation, the PEB would have had to give appropriate consideration to the commander's observations, particularly based on the apparent change in requirements for his MOS. The commander's statement, coupled with his need to have multiple insulin injections daily, likely weighed heavily in the PEB's recommendation for placement on the PDRL. 4. Concerning the removal of medical records and documents associated with his 2000 MEB/PEB, the Army has an interest in maintaining the integrity of its records for historical purposes. The data and information contained in those records should reflect the conditions and circumstances that existed at the time the records were created. In the absence of a showing of material error or injustice, there is a reluctance to recommend that the applicant's medical records and documents associated with his 2000 MEB/PEB be removed. 5. As to not being given the option to continue his active service so he could have completed 20 years of active service, the evidence of record shows he specifically requested to discontinue his service if found unfit by the PEB, and did so on more than one occasion. a. The OTSG advisory suggested his major depressive disorder may have played a role, and the applicant now argues his COAD declination may have been the result of the medications he was taking. While his depression likely did have an effect, the preponderance of the evidence suggests he was more of a willing participant in the MEB/PEB process. (1) The applicant was first diagnosed with depression in or around April 1998 while still assigned in Germany. While documentation regarding the MEB/PEB conducted in or around 1998 are not available for review, the applicant has included a letter reflecting a formal PEB was conducted at WRAMC on or about 21 April 1998. Additionally, his commander references this PEB in his commander's statement. The presence of depression does not appear to have prevented him from successfully disputing and appealing the PEB's findings in 1998. He was subsequently found fit for duty. (2) By contrast, in 2000, the applicant concurred with both the MEB and PEB results. Had he actually intended to remain on active duty, his earlier success would reasonably have motivated him to once again appeal the PEB's findings. (3) He also had a number of opportunities to request COAD, but, in each case, he declined (20 June 2000 on his MEB Proceedings (DA Form 3947); 26 June 2000 by memorandum; and 7 July 2000 by statement). It appears reasonable to presume, had he really wanted to remain on active duty, he would have elected to do so on at least one of these occasions. (4) Significantly, in May 2000, he requested the delay in dictation of his MEB to allow more time for the addition of an orthopedic addendum. His reason was, without it, his disability rating might end up being lower. (5) This concern for ensuring he received the maximum disability benefit does not appear consistent with a Soldier who actually intended to stay in until reaching 20 years of active service. Additionally, this memorandum appears to run counter to his claims he was essentially forced to have his orthopedic conditions added to the MEB without the benefit of a full term of medical care. (6) It is worth noting, at the time of his retirement, CRDP had not yet been implemented. As such, being retired then or at any point in the foreseeable future point would have meant a reduction in military retired pay to offset VA compensation. With only 7 months and 5 days until 20 years of service, requesting COAD would not have significantly changed his retired pay. (7) With the change in law in 2004, however, having served a full 20 years on active duty became an important factor for retirees, such as the applicant, who had a disability rating of 50 percent or more, and who had been retired solely due to a physical disability. By missing the opportunity for COAD, he was not automatically eligible for CRDP when it became effective. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150010737 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150010737 18 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2