IN THE CASE OF: BOARD DATE: 15 February 2019 DOCKET NUMBER: AR20160008356 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by referring the applicant's records to the Integrated Disability Evaluation System (IDES) to determine if any medical conditions failed medical retention standards and whether the applicant was unfit for continued military service at the time of his separation. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to his placement on the permanent disability retired list without referral into IDES. 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. Enclosure 1 IN THE CASE OF: BOARD DATE: 15 February 2019 DOCKET NUMBER: AR20160008356 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration 1. IN THE CASE OF: BOARD DATE: 15 February 2019 DOCKET NUMBER: AR20160008356 APPLICANT'S REQUEST AND STATEMENT: The applicant defers to counsel. COUNSEL'S REQUEST AND STATEMENT: 1. Counsel requests the applicant be referred to a Medical Evaluation Board (MEB) and/or be placed on the Permanent Disability Retired List (PDRL). 2. Counsel states: a. The applicant was a Distinguished Military Graduate from Loyola University and commissioned into the Signal Corps (SC) as a second lieutenant (2LT) in May 1983. His initial assignment was with the 18th Airborne Corps at Fort Bragg, North Carolina. He had a series of subsequent assignments in both the Regular Army and the U.S. Army Reserve and was promoted to major (MAJ). He graduated in the top 20 percent of his class in the Radio Systems Officer Basic Course and the Signal Officer Advanced Course. He served in Germany as a Battalion Signal Officer for 3 years, for his third deployment served as a Battalion Signal Officer, and then deployed as a Company Commander during humanitarian relief efforts after Hurricane Andrew and Operation Restore Hope in Somalia in 1993. His final assignment was as a battalion Signal Officer. b. The applicant was awarded four Army Commendation Medals, two Army Achievement Medals, the Armed Forces Expeditionary Medal, and the Humanitarian Service Medal. In 1992, he applied for the voluntary separation incentive/special separation benefit (VSI/SSB). His request for VSI/SSB was approved and retirement orders were issued in March 1993 with a discharge date of 15 July 1993. c. After his discharge, and despite the progression of his medical conditions, he volunteered for and was accepted for a troop program unit (TPU) assignment in which he served until October 1995 when he was transferred to the Individual Enclosure 2 Ready Reserve (IRR). He completed Command and General Staff College in 1995. He remained in the IRR until November 2001, when he was recalled to undergo his 5-year physical health assessment (PHA). He was found to be medically non-deployable and immediately returned to the IRR. He was honorably discharged from the U.S. Army Reserve in August 2003, with 11 good years for retirement. c. Upon his discharge from active duty in 1993, he was awarded a 10 percent (%) disability rating. After a series of upward adjustments, in 2009 the Department of Veteran Affairs (VA) evaluated all of the applicant's then- developed medical conditions and determined them all to be service connected due to 30 minutes of continuous unfiltered microwave irradiation in 1985 and awarded him a 100% disability rating with entitlement to the special monthly compensation based on the housebound criteria being met. His most serious service-connected disabilities include: * Hypothyroidism (100%) * Diabetes mellitus (40%) * Peripheral vascular disease, left lower (40%) * Peripheral vascular disease, right lower (40%) * Peripheral neuropathy right upper extremity (10%) * Peripheral neuropathy right upper extremity (10%). d. He suffers from several diseases that have been directly linked to his military service and the 30 minutes of continuous unfiltered microwave irradiation received from an undetected crack in a AN/TRC138 microwave transmission system while supporting the 1985 Boy Scout Jamboree at Fort A.P. Hill. As a result of that exposure, the applicant incurred medical conditions that existed at the time of his discharge but were either not sufficiently malignant to be identified or were dismissed as intermittent or spurious. The medical conditions included vitiligo, Cushing’s syndrome, hyperthyroidism, diabetes mellitus (type II), hypopituitarism, and hypogonadism, among others. e. During the applicant's 10 years of active service, he was a model officer; however, he gained nearly 60 pounds during the period 1986 to 1993 despite his efforts to reduce his weight. He was enrolled in the weight control program but was still unable to lose weight, even on an exercise, 30-day fasting and salad- only diet. Prior to 1987, he was an active long-distance runner averaging 10-15 miles per day and consistently met height/weight standards. He was evaluated at Fort Drum for hyperthyroidism when it was noted "a normal circulating level of thyroid but the TSH was elevated at 7." He was prescribed "synthroid" and the weight gained ceased. To confirm the diagnosis and receive treatment he was 2 evaluated at Walter Reed Army Medical Center (WRAMC) for abnormal thyroid. The results did not find a need for therapy. The applicant was returned to duty with medication. f. When the VSI/SSB program became available in December 1991, the applicant was encouraged by his chain of command, due to his weight issues, to seek approval for the VSI/SSB program to ensure a favorable exit from the Army. His request was approved approximately in December 1992. During his discharge physical, the examining physician identified and removed a previously undetected 3.5 by 3.5 centimeter nodule on his thyroid. In June 1993, a civilian provider affirmatively diagnosed him with hypothyroidism with vitiligo and he was issued a P2 profile, specifically noting he was not to be held to weight standards. At discharge, he weighed 245 pounds, an 80-pound weight gain. He was released from active duty under VSI/SBB and transferred to the Ready Reserve on 15 July 1993. g. The applicant voluntarily affiliated with a reserve unit at Fort Drum and served with distinction until he was mandatorily promoted to MAJ by transfer to the IRR. He was recalled to active duty in November 2001 for his 5 year PHA, wherein the military physicians noted several diseases including the hyperthyroidism with vitiligo, uncontrolled diabetes mellitus (type II), Cushing's syndrome, and pituitary disorder. His 180 pound weight gain to 345 pounds since commissioning in May 1983 was also noted. As a result, he was found to be medically unfit for further military service in accordance with Army Regulation 40-501 due to diabetes mellitus, hyperthyroidism, and miscellaneous conditions. A MEB was recommended and a permanent profile was issued. Due to the Cushing's syndrome diagnosis, the examining physician referred him for an evaluation of his pituitary gland and function. In July 2002, the Cushing's diagnosis was confirmed and he underwent surgery to remove a 4mm tumor from his pituitary gland. h. By early 2015, he weighed nearly 500 pounds, had been diagnosed with hypogonadism, diabetic peripheral neuropathy, hypopituitarism, kidney stones, sleep apnea, and was prescribed and taking more than 10 daily medications. In January 2015, he underwent gastric by-pass surgery and began to see relief from his medical conditions. By March 2015, he had lost more than 100 pounds. He was able to exercise more often, and as a result, he is no longer taking insulin, testosterone supplements, and other medications. i. It is undisputed by the Department of Defense and DVA that the applicant was exposed to 30 minutes of direct unfiltered high-intensity microwaves as a result of a crack in the microwave transmission housing of the AN/TRC-138 radio 3 repeater during his participation in the 1985 Boy Scout Jamboree at Fort A.P. Hill, Virginia. It has also been documented it is very likely the applicant was exposed to elevated levels of dioxin, a component of Agent Orange and a broadleaf herbicide stored and used on Fort A.P. Hill in the years prior to both 1981 and 1985 Boy Scout Jamborees. j. For reasons lost to the fog of time and the National Personnel Records Center, the applicant was not referred, on at least two occasions, in accordance with Army Regulation 40-501 to a MEB for his diagnosis of hypothyroidism with vitiligo: first during his unexplained weight gain over the course of approximately 18 months and second when WRAMC failed to aggressively treat the hyperthyroidism, and third when the thyroid mass was removed in 1993, after nearly 2 years of synthroid treatment. According to Army Regulation 40-501, he should have been referred to a MEB. If it was not for the fact the applicant had an approved VSI/SSB discharge and was within 30 days of his discharge-by date, the Army committed legal error when it failed to delay his already approved discharge and initiate the MEB process pursuant to Army Regulation 40-501. k. The Army also committed legal error in November 2001, when the U.S, Army Human Resources Command (HRC) did not initiate the MEB process when notified of the applicant's failure to meet medical retention standards and on being issued a P3 profile. He was returned to the IRR when he continued to "drill for points" until the 20 year anniversary of his appointment and commissioning when he was honorably discharged from the USAR. l. At the time of his discharge from active duty in 1993 and again during his PHA, Army and civilian physicians noted the applicant suffered from a variety of endocrinological disorders directly linked to 30 minutes of continuous unrestricted microwave radiation from an undetected crack in military microwave transmission equipment. At a minimum, at each of the discharge "touch-points", based on the medical evidence available at the time, the applicant should have been referred for a MEB to determine his fitness for further military service. This did not happen in 1993 out of expediency and in 2001 out of simple neglect. At a minimum, in 2001, a PHA administered by the U.S. Army leading to a P3 profile required referral to a MEB, but through no fault of his own, HRC, through apathy, mismanagement, or otherwise, failed to initiate the MEB. Further, on at least three occasions as noted above, the Army had the opportunity to refer the applicant to a MEB, but failed to do so, despite overwhelming evidence his condition was worsening. THE BOARD CONSIDERED THE FOLLOWING 4 1. Application for correction of military records with supporting documents: * 6 page brief * Personnel and medical records provided to the applicant by the National Personnel Records Center 2. Evidence from the applicant’s service record and Department of the Army and Department of Defense records and systems: * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Separation Orders * DA Form 67-8 (U.S. Army Officer Evaluation Report) * DA Form 71 (Oath of Office) * Appointment Letter * DA Form 5016 (Chronological Statement of Retirement Points) REFERENCES: 1. Title 10, United States 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. 2. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the 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 office, grade, rank, or rating. It provides for MEBs, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness). Disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. This regulation also states the following: a. Paragraph 3-1 provides that the mere presence of impairment does not of itself justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with 5 the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade, or rating. The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated. b. Paragraph 3-2b(2) states that when a member is being processed for separation for reasons other than physical disability (e.g., retirement, resignation, reduction in force, relief from active duty, administrative separation, discharge, etc.) his continued performance of duty creates a presumption that the member is fit for duty. Except for a member who was previously found unfit and retained in a limited assignment duty status in accordance with chapter 6 of this regulation, such a member should not be referred to the PDES unless his or her physical defects raise substantial doubt that he or she is fit to continue to perform the duties of his or her office, grade, rank, or rating. c. Paragraphs 3-2b(2)(a) and 3-2b(2)(b) state that when a member is being processed for separation for reasons other than physical disability, the presumption of fitness may be overcome if the evidence establishes that the member, in fact, was physically unable to adequately perform the duties of his or her office, grade, rank, or rating even though he or she was improperly retained in that office, grade, rank, or rating for a period of time and/or acute, grave illness or injury or other deterioration of physical condition that occurred immediately prior to or coincidentally with the member's separation for reasons other than physical disability rendered him or her unfit for further duty. d. Paragraph 3-5 states the percentage assigned to a medical defect or condition is the disability rating. A rating is not assigned until the Physical Evaluation Board (PEB) determines the Soldier is physically unfit for duty. Ratings are assigned from the VA Schedule for Rating Disabilities (VASRD). The fact that a Soldier has a condition listed in the VASRD does not equate to a finding of physical unfitness. An unfitting, or ratable condition, is one which renders the Soldier unable to perform the duties of their office, grade, rank, or rating in such a way as to reasonably fulfill the purpose of their employment on active duty. There is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying. 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. 6 3. Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement. a. Chapter 3 gives the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required for the individual in paragraph 3-2, below. These medical conditions and physical defects, individually or in combination: * significantly limit or interfere with the Soldier's performance of duties * may compromise or aggravate the Soldier's health or well-being if the Soldier remains in the military; this may involve dependence on certain medications, appliances, severe dietary restrictions, 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 if the individuals were to remain in the military service b. Chapter 7 (Physical Profiling) provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted. 1) In developing the system, the functions have been considered under six factors designated “P–U–L–H–E–S” which represent: * P = physical capacity or stamina * U = upper extremities * L = lower extremities – (This factor concerns the feet, legs, pelvic girdle, lower back musculature and lower spine (lower lumbar and sacral) in regard to strength, range of motion, and general efficiency.) * H = hearing and ears * E = eyes * S = psychiatric 2) Four numerical designations are used to reflect different levels of functional capacity in each of the six factors. Therefore, the functional capacity of a particular organ or system of the body, rather than the defect per se, will be evaluated in determining the numerical designation 1, 2, 3, or 4. 7 * An individual having a numerical designation of “1” under all factors is considered to possess a high level of medical fitness. * A physical profile designator of “2” under any or all factors indicates that an individual possesses some medical condition or physical defect that may require some activity limitations. Individuals with one or more factors, who are determined by a medical board to require an assignment limitation, may be awarded specific assignment limitations. * A profile containing one or more numerical designators of “3” signifies that the individual has one or more medical conditions or physical defects that may require significant limitations. The individual should receive assignments commensurate with his or her physical capability for military duty. * A profile serial containing one or more numerical designators of “4” indicates that the individual has one or more medical conditions or physical defects of such severity that performance of military duty must be drastically limited. c. Paragraph 7-8 provides for physical profile boards (PPBD), it states, when an individual with a permanent numerical designator "2" under one or more PULHES factors requires significant assignment limitations. PPBD is required in these cases because of the profile serial "2" normal denotes minor impairment requiring no significant limitations. d. Chapter 9 (Army Reserve Medical Examinations) sets the basic policies and procedures for medical examinations. It is the responsibility RC Soldier to maintain their medical and dental fitness. Paragraph 9-15 states normally, Reservist who do not meet the fitness standards set by chapter 3 will be transferred to the Retired Reserve per Army Regulation 140-10 or discharged from the USAR per Army Regulation 135-175 or Army Regulation 135-178. The will be transferred to the Retired Reserve only if eligible and if they apply for it. Reservists may submit a request for continuance or reservists temporarily disqualified because of medical defects will be transferred to the Standby Reserve Inactive list if: * Not required by law to remain a member of the Ready Reserve * Currently disqualified for retention in the USAR * The condition is considered to be remediable within 1 year from the date disqualification was determined 4. Title 10, United States 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 8 physical disability separation of a member who has less than 20 years of service and a disability rating less than 30 percent. 5. Title 38, United States Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish an error or injustice on the part of the Army. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career. The VA does not have authority or responsibility for determining physical fitness for military service. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. As a result, the VA, operating under different policies, may award a disability rating where the Army did not find the member to be unfit to perform his duties. Unlike the Army the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. DISCUSSION: 1. While 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 was appointed a second lieutenant in the Regular Army on 29 April 1983 and entered active on 28 May 1983. 3. On 15 July 1993, he was honorably discharged from active duty under the early release program and executed an oath of office as a Reserve commissioned officer. 4. His U.S. Army Evaluation Report for the period 16 July 1994 through 15 July 1995 shows he exceeded requirements in the performance of his duties. 5. On 7 October 1995, he was assigned to the USAR Control Group (Reinforcement) due to being promoted to a grade exceeding vacancy. 6. On 1 August 2003, he was honorably discharged from the USAR. Records show he completed 11 years, 1 month, and 18 days of qualifying service for retirement. 9 7. The Army Review Boards Agency Senior Medical Advisory provided an advisory opinion, it states, in pertinent part: a. A limited review of VA records through the Joint Legacy Viewer shows 19 listed problems (all VA entered) including depressive disorder, hypothyroidism, diabetes mellitus, vitiligo, kidney stones, sleep apnea, chronic pain, hypopituitarism, hypogonadism, hyperlipidemia and others. The applicant is currently VA service connected at 100 percent overall (arteriosclerosis at 40%, major depressive disorder as 30%; renal involvement in diabetes at 30%; hypothyroidism at 30%; diabetes mellitus at 20 %; paralysis of the median nerve at 10%; paralysis of posterior fibial nerve at 10%; and vitiligo at 10%). b. The applicant met medical retention standards for vitiligo, thyroiditis, history of thyroid nodule (surgically removed), and other physical, medical, dental and/or behavioral conditions in accordance with (IAW) Army Regulation 40-501, and following the provisions set forth in Army Regulation 635-40 applicable to the applicant's era of service (active service 1983-1993). At the time of the applicant's separation from active military service (at the end of 1.5 years as a company commander), the applicant clearly met retention standards per AR 40- 501. It is not clear from the available records whether the applicant met AR 600- 9 (Army Body Composition Program (ABCP) standards that may have warranted involuntary administrative separation. Obesity is not a medically boardable condition. c. Per AR 635-40 the following presumptions will apply to the physical disability evaluation system (PDES). Processing for separation from active service. Disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. When a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank and grade until the Soldier is scheduled for separation or retirement, creates a presumption that the Soldier is fit. d. The applicant did not meet medical retention standards for uncontrolled diabetes mellitus type II IAW chapter 3, AR 40-501, and following the provisions set forth in AR 635-40 applicable to the applicant's era of service (reserve service 1993-2003). At the time of the 2001 military screening evaluation, after 8 years of non-military (civilian) healthcare (limited records) the applicant's new (to the military) diagnosis of uncontrolled diabetes mellitus type II (non-insulin 10 dependent) was noted to appear not to meet medical retention standards for retention, mobilization, and continued service. He was thus not mobilized for post 9/11 military operations. The applicant was not diabetic when he left active military service in 1993. Subsequently, in 2002 his civilian providers determined the applicant had a pituitary adenoma which was surgically removed. His diabetes was clearly uncontrolled and he clearly did not meet medical retention standards. The applicant also did not meet AR 600-9 ABCP standards for height/weight and military appearance. e. The applicant met retention standards for vitiligo, hypertension, hypothyroidism, and other physical, medical, dental and/or behavioral conditions IAW Chapter 3, AR 40-501, and following the provisions set forth in AR 635-40 applicable to the applicant's era of service (Reserve service). The applicant's medical conditions were duly considered during medical separation processing. The applicant clearly met medical retention standards at separation form active service in 1993. The applicant clearly did not meet medical retention standards in 2001 or 2002 due to uncontrolled diabetes mellitus, a non-active-duty related condition developed at some point between 1993 and 2001 while in a non-duty status. There is no compelling medical evidence or data supporting the applicant's claim his vitiligo and thyroiditis were caused by or are associated with the alleged brief exposure to microwave radiation or alleged exposure (method not revealed) to Silvex in August 1985. f. A review of the available documentation found no evidence of a medical disability or condition which would support a change to the character or reason for the discharge in this case. The applicant appears to have actually been separated in 2003 for three consecutive (2001, 2002, 2003) non-selections for promotion to lieutenant colonel (LTC) by the Department of the Army Reserve Components Selection Board, i.e., failure to keep pace or the progress with contemporaries such as successive promotion failure when compared to other officers of the same grade, branch, and length of service. Officers discharged for the reason will be furnished an Honorable Discharge Certificate. g. Assuming the applicant elected to undergo a non-duty related physical evaluation board (PEB) in 2001 or 2002, the applicant would have been found not to meet medical retention standards by the MEB and found unfit for duty by the PEB. He would have been subsequently administratively separated from the USAR without disability compensation from the U.S. Army. He would/did apply to the VA for disability evaluation and compensation (currently 100 percent overall). Alternatively, the applicant could have elected to administratively separate from the USAR for failure to meet medical retention standards. If the applicant had sufficient duty time/retirement points he may have been eligible for 11 retired pay at age 60. There were no records found indicating the applicant had or did not have sufficient points to meet retirement eligibility requirements. He would/did apply to the VA for disability evaluation and compensation (currently 100 percent). g. In summary, there is no medical reason for initiation of PDES processing for this applicant at this time. 8. The applicant was provided a copy of the advisory and afforded the opportunity to respond and submit additional evidence on his behalf. 9. On 5 January 2019, in response to the advisory opinion counsel submitted a copy of VA medical records from 31 January 2002 to 2 March 2016 and a written rebuttal which reiterates the contentions for the requested relief and states: a. The Medical Advisor's opinion is, respectfully, disjointed and makes assumptions and vast leaps in judgment that are not based in fact or regulation. The Medical Advisor effectively states because the documentary evidence does not exist the incident could not have happened. The Army lost the applicant's medical records. The records the Army has are incomplete. The applicant's records are incomplete. But the evidence that does exist is clear: in the hours and days after his 8+ minute exposure to direct microwave radiation, just weeks after his exposure "his once olive colored fingers were white like my northern- European skin color ... with a white band around his eyes that gave him an almost raccoon appearance." In the months that followed, a once avid runner with an athlete's physique gained 30 pounds in three months. He went on a starvation diet for which he was reprimanded. The medical effects of close proximity radar wave exposure have been thoroughly studied by the Army and have been warned against and corrected in various technical bulletins over the years. b. As to the Silvex/Dioxin exposure, the environmental issues at Fort A.P. Hill have been amply documented in the press, and in the Army and Environmental Protection Agency records. It was the Army occupational specialist that identified the medical conditions from which the applicant was suffering that prompted him to identify the chemical exposure location. The applicant was billeted in a building with a cement floor that was surrounded a wire fence to set up battalion headquarters. Not only did they perform daily operations in this building but they also slept this building. In fact the applicant slept on the cement floor in his sleeping bag. Prior to his unit using this building for battalion headquarters, this building was one of the ones the base used to store the hazardous pesticide, Silvex which contains dioxin, the hazardous part of Agent Orange. Fellow 12 Soldiers were not aware of this building prior use for storing hazardous chemicals. c. The medical conditions with which the applicant has suffered since August 1985 have been directly linked to his radiation and chemical exposure at Fort A.P. Hill. These are not conditions the applicant developed years after his military service. They were actively existing and progressing while he was on active duty, and after he transferred to the Army Reserve. The Medical Advisor takes issue with the fact the applicant was a company commander and he successfully executed that mission with excellent reviews. He claims if the applicant was as sick as he claims, he would not have been a successful officer. The applicant's executive officer at that time notes " ... I had to annotate [his weight] on both OERs I gave him," but he also comments the applicant was not "lazy, uncommitted to a professional appearance, or lethargic in any manner ... he never complained about his health, excused his medical issues, or even mentioned his illnesses." The applicant put his command, subordinates, and colleagues ahead of his own best interests - as we all do. d. The Medical Advisor also takes issue with the fact the applicant was a three time pass-over for promotion to Lieutenant Colonel. He claims the applicant "clearly met medical retention standards and medical deployment standards to deploy to a hostile fire zone in Jan 1993." He finally notes the applicant was a "no-go" for deployment at the end of his Reserve career due to medical conditions - but those medical conditions were not related to his military service - because he was treated by civilian physicians. He claims that the various medical tests conducted by military physicians - contained in incomplete medical records, show the medical conditions were not progressing "properly" for a proper diagnosis. The Medical Advisor mentions these facts as if they excuse the Army, or the applicant should have made difference choices with his military career and his medical treatment in order to prove his case twenty-plus years later. He also presupposes commanders and supervisors don't exert influence, with the support of the Soldier or Officer they are trying to help, over others to "get what they want." In this case, it is not beyond the realm of possibilities the applicant wanted to deploy to Somalia; that his commander wanted him to deploy to Somalia; and that certain requirements for medical readiness were ignored in order for everyone to get what they wanted. That has never happened ... (said dripping with sarcasm). e. The advisory opinion should be disregarded because it does not accurately reflect the applicant's service medical records, and ascribes a standard of compliance and behavior and pattern of conduct on both the applicant and the Army to which neither party could comply. The applicant was exposed to direct 13 microwave radiation during his service resulting in physical changes. He was exposed to dioxin causing physical changes. His medical conditions, identified during military service, have been directly linked to radiation and chemical exposure. The applicant has met the standard of a preponderance of the evidence to support his claim his medical conditions are directly related to his military service and the medical conditions were evident, diagnosed, and did not meet the standards for medical retention under AR 40-501 at the time of his discharge from active duty and again later when he was discharged from the USAR. f. The Army in the 1980s and 1990s was not the Army of today. Rules were bent easily because the Army had not yet been subject to the 24-hour news cycle and social media. Records were incomplete and on paper. The applicant should have been given the benefit of these conditions and have his medical and service records independently reviewed by the IDES process. 10. The VA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual’s employability. Accordingly, it is not unusual for the VA to award a veteran a disability rating when the veteran was not separated due to physical unfitness. 11. In regards to the applicant's contention of not receiving an MEB while on active duty, Army Regulation 40-501, in effect at the time states, when an individual with a permanent numeral designator "2" under one or more PULHES factors requires significant assignment limitations. PPBD action is required in these cases because the profile serial "2" normally denotes minor impairment requiring no significant limitations(s). a. The applicant states in June 1993, a civilian provider affirmatively diagnosed him with hypothyroidism with vitiligo and he was issued a P2 profile. Neither the applicant nor his records provide a copy of his DA Form 3349. b. His record shows he continued performance of assigned duties commensurate with his MOS. His record is void of evidence showing he was unable to perform his duties while on active duty. 12. In regards to the applicant's contention of not receiving an MEB while in the USAR, Army Regulation 40-501, in effect at the time, states, normally, reservists who not meet fitness standards will be transferred to the Retired Reserve or discharged accordingly. Reservists may submit a request for continuance or 14 reservists temporarily disqualified because of medical defects will be transferred to the Standby Reserve Inactive list if: * Not required by law to remain a member of the Ready Reserve * Currently disqualified for retention in the USAR * The condition is considered to be remediable within 1 year from the date disqualification was determined a. The applicant states he was found medically unfit while assigned to the USAR; however, neither he or his record provide a copy of DA Form 3349. b. His record shows, while assigned to the USAR, he was a three time non- select for promotion to LTC and discharged honorably on 1 August 2003. A statement of retirement points shows he earned 11 years, 1 month and 18 days of creditable service. 13. The ARBA Senior Medical Advisor states a review of the available documentation found no evidence of a medical disability or condition which would support a change to character or reason. //NOTHING FOLLOWS// 15