PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 1 November 2001
         DOCKET NUMBER: AR2001051892


         I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Edmund P. Mercanti		Analyst

The following members, a quorum, were present:

Mr. Walter T. Morrison		Chairperson
Mr. Arthur A. Omartian		Member
Mr. Curtis L. Greenway		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests that this Board “. . . adopt [the] decision of Army Discharge Review Board [ADRB].”

3. The applicant states the Department of Veterans Affairs (DVA) will not give him medical treatment without this Board affirming the ADRB’s ruling. He is in dire need of this treatment since he has no health insurance and his medical condition has deteriorated to the point where he is suffering from near stroke like symptoms.

4. The applicant’s military records show that he was commissioned in the Army Nurse Corps and entered on active duty on 17 February 1981. He was promoted to captain and was sent to Saudi Arabia in support of Operation Desert Storm on 2 January 1991.

5. In March 1991 court-martial charges were preferred against the applicant for stealing controlled substances, falsifying the controlled substances log, and by attempting to destroy Government property (the controlled substances) by placing them in the trash can.

6. On 14 March 1991 the applicant submitted his resignation for the good of the service.

7. In the processing of the applicant’s request for discharge, a letter was written in his behalf from his attending physician who stated that the applicant suffered from polysubstance abuse/possible dependence as well as a long history of severe migraine headaches. This physician continued that the applicant’s medical records show that his migraine headaches had been treated with numerous narcotics, with the amount of narcotics being prescribed being an issue of concern for the last two years. This physician opined that the military treatment plan, the long-term use of narcotic prescriptions, strongly contributed to the applicant’s polysubstance abuse/dependence. Another letter written in the applicant’s behalf from the nurse supervisor who discovered the theft of the controlled substances by the applicant stated that prior to deployment to Operation Desert Storm the applicant was evacuated to a medical center for evaluation of an endocrine problem and the possibility of addiction to prescribed drugs. However, he was returned to the unit in November 1990 cleared for duty.

8. On 14 March 1991 a sanity board convened and determined that the applicant had the mental capacity to understand the nature of the proceedings and to cooperate intelligently in his defense.

9. On 10 May 1991 the Chief, Army Nurse Corps, Office of The Surgeon General, stated in a memorandum to the applicant’s commander that “This officer was not provided with the appropriate rehabilitation when his problem was initially identified two years ago” and approved the applicant for attendance at a residential treatment facility for his drug dependence.

10. The applicant entered into and successfully completed drug rehabilitation. Upon his release from that residential program, on 16 July 1991 he resigned his commission and was discharged under other than honorable conditions for the good of the service, in lieu of trial by court-martial.

11. On 1 February 2000 the applicant submitted a request to the ADRB to have his discharge upgraded. In that request he explained that he was diagnosed as suffering from migraine headaches in 1987, for which he was prescribed Demerol and Visteral and allowed to sleep off the headache and effects of those medications. When he was sent to Saudi Arabia in support of Operation Desert Storm he was extremely fearful that if the treatment facility that he was assigned to were to receive mass casualties from the war he may have a migraine headache and be unable to perform his duties as Triage Nurse and Assistant Head Nurse of the Emergency Room, and was particularly fearful that if the Triage Surgeon left for surgery, he would be the only triage officer manning the incoming patient area. His fears of suffering from a debilitating migraine headache came true shortly after he was caught taking the controlled substances, which resulted in his transport to an emergency room and treatment with Demerol and Visteral by injection. The applicant also claimed to have received inadequate legal counsel and excessively harsh treatment in comparison to other medical personnel who have illegally taken controlled substances in conjunction with a drug addiction. His request for detoxification prior to his discharge was initially denied by the installation commander, but was granted by the Chief of the Army Nurse Corps. Based on that approval he attended and completed a six-week rehabilitation at a Residential Treatment Facility. The other Medical Corps officers who attended that treatment regimen were returned to duty. He believes that he was unjustly singled out to be discharged under other than honorable conditions. Subsequent to his discharge his medical condition has deteriorated, with him now being diagnosed as suffering from hemiplegic migraine headaches, more commonly known as complex migraine headaches, which mimics stroke-like symptoms. The applicant concludes that an under other than honorable discharge is inequitable in consideration of the isolated nature of the offense, his 10 years of honorable service, his inadequate legal counsel, and the disparity in how he was treated in comparison to other medical personnel who had done the same thing that he did.  The ADRB determined that the length and quality of the applicant’s service mitigated his misconduct and upgraded his under other than honorable discharge to under honorable conditions (general discharge).

12. In the processing of this case the staff of the Board contacted the applicant and requested that he submit any documentation he may have concerning his treatment for migraine headaches. The applicant submitted 25 pages of medical records pertaining to treatment of his migraine headaches, and informed the staff of the Board that there are many more treatment records which had been locally maintained by physicians who were providing him ongoing care for his migraine headaches.

13. These medical records show that the applicant was treated for acute migraine headaches which were of the severity to have symptoms of an aura of photophobia, nausea, and vomiting, for which he was treated with a variety of intravenous narcotic drugs, non-rebreather oxygen therapy, and quarters to sleep. In 1988 he was treated for migraines once a month from March through May, twice in June, seven times in July, and four times in August. On 12 July 1988 he was given a computerized axial tomography of his brain to attempt to determine the cause of his migraine headaches. At that time a clinical summary was dictated which stated that the applicant reported having migraine headaches since 1983, but had “increased frequency of migraine type headaches over the past three to four months and most recently had a migraine headache three days prior to admission . . .” On 15 November 1990 the applicant was air evacuated for evaluation of a six-month history of increased fatigue, weight gain, and decreased appetite. He was diagnosed as suffering from transient hypothyroidism, osteogenesis imperfecta (abnormal fragility and plasticity of bone, with recurring fractures on trivial trauma), and a history of migraine headaches. He was tested for suspected drug and alcohol abuse, but the tests came back negative. However, he had an elevated count in one test which was considered secondary to previous alcohol and drug history.

14. 38 CFR §3.12 states that DVA benefits are not payable where the former service member was discharged or released as a result of resignation by an officer for the good of the service. Discharges upgraded by an DRB established under Title 10 USC §1553 does not set aside any bar to benefits imposed in this section. However, an honorable discharge or discharge under honorable conditions issued through a board for correction of records established under the authority of Title 10 USC §1552 is final and conclusive on the DVA. The action of the BCMR sets aside any prior bar to benefits imposed under this section.

CONCLUSIONS:

1. The Board certainly agrees with the ADRB that the length and quality of the applicant’s service warrants an upgrade of his discharge from under other than honorable conditions to under honorable conditions (General Discharge Certificate). The Board has also taken into consideration other matters of mitigation, including the applicant’s migraine headaches and the use of narcotics to treat that condition, in reaching this conclusion.

2. It is the opinion of the Board that the only way to provide the relief sought by the applicant is to affirm the applicant’s general discharge by adding to Item 25 of his DD Form 214, Separation Authority, “and Title 10 USC, §1552.”

3. In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by issuing to him a DD Form 215 which changes the separation authority in item 25 of the applicant’s new DD Form 214 to read “AR 635-120, Chapter 5 and Title 10 USC, §1552.”

BOARD VOTE:

__aao___ ___wtm _ ____clg_ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  _________Walter T. Morrison _______
                  CHAIRPERSON

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INDEX

CASE ID	AR2001051892
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20011101
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.	108.05
2.
3.
4.
5.
6.