PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 20 November 2001
         DOCKET NUMBER: AR2001054817


         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
Mrs. Nancy Amos		Analyst

The following members, a quorum, were present:

Ms. Jennifer L. Prater		Chairperson
Mr. Melvin H. Meyer		Member
Ms. Regan K. Smith		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 he be compensated from the date of his discharge and that his reentry (RE) code be changed. (The Army Discharge Review Board (ADRB) has already taken action to upgrade the characterization of his discharge to fully honorable and to change the authority for his separation to Secretarial Authority.)

3. The applicant states that he has been inconvenienced because someone did not do the paperwork correctly. His medical board should have been allowed to continue. He loved the Army and would probably have served for 20 years. He wants to reenter the military but it is hard to get a waiver.

4. The applicant's military records show that he enlisted in the Regular Army on 25 April 1995. He completed basic training and advanced individual training and was awarded military occupational specialty 88M1P (Motor Transport Operator, airborne qualified). He reenlisted on 14 July 1998 for 3 years, making his expiration term of service (ETS) 13 July 2001.

5. On 15 October 1999, while on temporary duty in Egypt, the applicant experienced an episode of loss of consciousness. He was medically evacuated back to Fort Eustis, VA for evaluation. The Neurology consultation sheet noted he experienced recurrent seizures which appeared generalized in onset, had a history of childhood seizures, and a single hospitalization for prior seizures. He was diagnosed with epilepsy based on his recurrent seizures, although the specific type of epilepsy was unclear.

6. On 11 November 1999, a Navy Medical Board Report diagnosed the applicant with migraine headaches, existed prior to service (EPTS) and epilepsy, EPTS. The Medical Board Report noted that the applicant had undergone an EEG and sleep-deprived EEG and an MRI scan of the brain, all of which were normal. It noted that the applicant had childhood seizures which were transiently treated with medications and which were subsequently discontinued. His last seizure was at the age of ten. He underwent a nine-year period without seizures and on the basis of that prolonged absence of seizures, his prognosis was quite good for seizure-free adulthood. Therefore, he was allowed to enter active duty. It concluded that, given his history, that was a reasonable assessment and there was no reason to restrict him from active duty service. His case was referred to the Army for fitness for duty disposition.

7. On or about 24 November 1999, the applicant’s commander initiated action to separate the applicant under the provisions of Army Regulation 635-200, chapter 7 for erroneous enlistment. The commander specifically cited the fact that when the applicant enlisted he certified that he had not concealed any medical

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information when in fact he had a preexisting condition of epilepsy. The commander recommended the applicant receive a general under honorable conditions characterization of service.

8. On 2 December 1999, the applicant was advised by consulting counsel of the basis for the proposed separation action. He submitted a statement in his own behalf wherein he stated that he did not knowingly withhold any information upon his entrance into the military. He stated that he had no knowledge of seizures until he spoke to his mother about his childhood. Then his mother told him he had a seizure at the age of ten. When he entered the military, he had had no recollection of the seizure. He did later tell the doctor that he had epilepsy, but only because he thought that epilepsy was the same as seizures. His childhood medical records contain no conclusive evidence that he had epilepsy at the age of ten.

9. On an unknown date, the applicant’s commander formally recommended his separation under the provisions of Army Regulation 635-200, paragraph 7-15. He cited as the specific factual reasons for the action the fact that the applicant
had erroneously enlisted into the Army by certifying he had not concealed any medical information when he had a preexisting condition of epilepsy. In addition, the commander indicated that the applicant made false official statements, committed fraud, larceny of government funds and mail fraud in regard to his Do-It-Yourself move. In completing the statement as to why he did not consider other disposition feasible or appropriate, the commander entered “Fraudulent Enlistment.” There is no evidence to show that these reasons were referred to the applicant for comment.

10. On 4 January 2000, the applicant’s commander forwarded several memoranda to the Army hospital at Fort Eustis, VA informing them that elimination action was pending against the applicant.

11. The battalion commander recommended approval of the separation action and that the applicant’s service be characterized as general under honorable conditions. It appears the battalion commander attached a separate note to the packet when forwarding it to the group commander. The note states “…While on Bright Star this soldier had an apparent seizure. During the diagnosis phase, he told the doctors he’s had seizures all his life and lied to get in the Army. Our plan was to leave him in Egypt, but he went on sick call 5 times a day saying, “he felt a seizure coming on.” …Three doctors said he admitted that he had lied to get in the Army…this kid was unhappy deployed. He decided to pull this seizure thing to redeploy. I really need to send a message and rapidly get this kid out of the Army under the fraudulent enlistment chapter…”

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12. On 15 March 2000, the U. S. Total Army Personnel Command approved the applicant’s separation.

13. On 5 April 2000, the applicant was discharged, with a general under honorable conditions discharge, under the provisions of Army Regulation 635-200, chapter 7, section III (paragraph 7-15), erroneous entry. He had completed 4 years, 11 months, and 11 days of creditable active service and had no lost time. He was given an RE code of 3.

14. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 7, section III, paragraph 7-15 states that a soldier may be separated on the basis of erroneous enlistment. An enlistment is erroneous if it would not have occurred had the relevant facts been known by the Government, it was not the result of fraudulent conduct on the part of the soldier, and the defect is unchanged in material respects. Soldiers separated under this paragraph will be awarded an honorable character of service.

15. Army Regulation 635-200, chapter 7, section V, paragraph 7-17 states that fraudulent entry is the procurement of an enlistment through any deliberate material misrepresentation, omission, or concealment of information which, if known and considered by the Army at the time of enlistment, might have resulted in rejection. Concealment of a medical defect or disability is not normally considered fraudulent entry within the scope of this chapter. However, the concealment is fraudulent if it was done to obtain medical treatment or hospitalization, monetary benefits, disability retirement, or veteran’s benefits to which the soldier was not entitled. An honorable, general under honorable conditions, or an under other than honorable conditions character of service may be directed. In determining the character of service to be issued, evidence of preservice misrepresentation which would have precluded, postponed, or otherwise affected the soldier’s enlistment eligibility may considered. The offense of fraudulent enlistment occurs when the soldier accepts pay or allowances following enlistment procured by willful and deliberate false representation or concealment of his or her qualifications.

16. Army Regulation 635-200, paragraph 1-35, at the time stated that when the medical treatment facility commander or attending medical officer determined that a soldier being processed for administrative separation under chapters 7 (section V), 14 or 15, with an authorized characterization of service of under other than honorable conditions, did not meet the medical fitness standards for retention, he or she would refer the soldier to a Medical Evaluation Board (MEB)

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in accordance with Army Regulation 40-3, chapter 7. The administrative separation proceedings would continue, but final action by the separation authority would not be taken pending the results of the MEB.

17. Army Regulation 601-210 prescribes eligibility criteria governing the enlistment of persons, with or without prior service, into the Regular Army and the U. S. Army Reserve. In pertinent part, it states that an applicant with no prior service is eligible for enlistment if he or she meets procurement physical fitness standards of Army Regulation 40-501, chapter 2 (and any added requirements of the specific option for which enlisting).

18. Army Regulation 40-501 governs medical fitness standards for enlistment, appointment, retention and separation. Chapter 2 lists physical standards for enlistment and appointment. Paragraph 1-26 states that all forms of generalized or partial epilepsy that have persisted beyond age 5 is a cause for rejection unless the applicant has been free of seizures for a period of 5 years immediately preceding examination for military service while taking no medication for seizure control and has a normal electroencephalogram (EEG). All such cases will be referred to The Surgeon General’s Consultant in Neurology for a determination of fitness.

19. On 23 March 2001, the ADRB determined that the applicant’s discharge under the provisions of Army Regulation 635-200, chapter 7 was improper. He was being processed through medical channels to determine his fitness for duty and paragraph 1-35 of that regulation states that disposition through medical channels takes precedence over administrative separation processing under the provisions of chapter 7. The ADRB voted to upgrade his discharge to fully honorable and to change the narrative reason for his discharge to Secretarial Authority.

20. In the processing of this case, an advisory opinion was obtained from the U. S. Army Physical Disability Agency (USAPDA). The USAPDA noted that the applicant was incorrect to assume that there was an approved MEB or that his condition was one that did not meet medical retention standards and required action by a Physical Evaluation board (PEB). The USAPDA noted that the Navy Medical Board Report was not an MEB and had to be forwarded to the applicant’s military Medical Treatment Facility (MTF) for review and approval. The Army reviewing authority could accept or reject the findings, conclusions, or recommendations of the Navy Report and it did not become an official Army MEB until approved. There was no evidence in the case file that the Report was ever

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forwarded to his MTF and no evidence that the appropriate reviewing authority had ever taken any action on it at the time of his separation. Accordingly, there was no Army MEB that had found that his condition did not meet medical retention standards at the time of his separation nor any prohibition to his being processed and separated as he was. The USAPDA noted that the Navy Report recommended temporary duty to further review his condition and to ascertain the effectiveness of medication. These recommendations were virtually identical to the guidelines found in Army Regulation 40-501. The Army standard would have been to provide a temporary profile and medication to ascertain controllability of the seizure disorder and, if he suffered no further seizures, he would be continued on active duty. If an MEB had found that he did not meet medical retention standards, a PEB would have considered his case. If there was evidence that the seizures could not be adequately controlled, he would have been found unfit and separated without compensation as his condition was EPTS.

21. A copy of the advisory opinion was provided to the applicant for comment or rebuttal. He did not respond within the given time frame.

CONCLUSIONS:

1. The Board concludes that a Government error occurred in this case.

2. In accordance with the advisory opinion, there is no evidence to show that the applicant’s medical processing was mishandled. In any case, it appears that he may have been found fit for duty, a determination it appears he agrees with since he is attempting to reenter the service.

3. The Board concludes that the applicant was improperly discharged for a reason other than the medical processing issue. The applicant’s commander initiated separation action under the provisions of Army Regulation 635-200, paragraph 7-15, erroneous enlistment. The applicant’s commander then made reference to the applicant’s “fraudulent enlistment” which is paragraph 7-17 of that regulation. The applicant did not meet the criteria for either an erroneous enlistment separation or a fraudulent enlistment separation. His enlistment was not erroneous because it most likely it would still have had occurred had the relevant facts (that he had been seizure free for more than 5 years prior to his enlistment) been known by the Government, it was not the result of fraudulent conduct on his part, and the defect was unchanged in material respects. His enlistment was not fraudulent since concealment of a medical defect or disability

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is not normally considered fraudulent entry within the scope of that chapter. In addition, it does not appear to the Board that the “concealment” was done to obtain medical treatment or hospitalization, monetary benefits, disability retirement, or veteran’s benefits to which the soldier was not entitled.

4. More egregious, after the initial separation action was referred to the applicant the commander cited additional reasons for separation in his recommendation without referring them back to the applicant. These additional reasons may have been a reason for separation for misconduct but that was not the authority under which he was separated.

5. The applicant’s enlistment would not have expired until 13 July 2001. Since there is good reason to conclude that, but for his premature and improper discharge, he would have remained on active duty to complete that enlistment, it appears appropriate and proper to void his premature discharge. This would revive his old enlistment contract. It would be appropriate to show that he continued to serve under that enlistment, to grant him full active duty credit through his ETS, and to issue him a new Honorable Discharge Certificate effective the date of his scheduled ETS. Due to the Government error, the Board at this point disregards any misconduct charges that may have been pending had he remained on active duty.

6. It does not appear appropriate or proper to credit the applicant with active service beyond his scheduled ETS, or to now order him directly to active duty on the assumption that, if qualified, he would have reenlisted at his ETS. Reenlistment is a contract, the creation of which requires volitional acts by the applicant which did not occur and which should not be retroactively presumed. It would be appropriate to give him the opportunity to apply for reenlistment under the applicable regulations.

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

RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected by:

a. voiding the ADRB-corrected discharge which was issued to the applicant on 23 March 2001 and by showing that he continued to serve on active duty until 13 July 2001, when he was separated from the service with an Honorable Discharge Certificate by reason of his ETS under the provisions of chapter 4, Army Regulation 635-200 and given a reentry code of 1; and

b. paying to him all pay and allowances due as a result of this correction.
2. The Board removes any impediments to the applicant’s reenlistment in the Regular Army in pay grade E-4 provided he is morally and physically qualified and makes application therefor within 120 days of official notification of this action. If the only medical disqualification discovered is his record of seizures, and the applicant has had no further seizures since the one on 15 October 1999, then recruiting medical authorities should give every consideration to waiving that disqualification and allowing the applicant to enlist in the Army. Any other medical or other disqualifications discovered will be processed according to regulatory guidance.

3. That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:

__jlp___ __mhm___ __rks___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION



                           Jennifer L. Prater
                  ______________________
                  CHAIRPERSON

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INDEX

CASE ID	AR2001054817
SUFFIX
RECON
DATE BOARDED	20011120
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(GRANT)
REVIEW AUTHORITY
ISSUES 1.	110.03
2.
3.
4.
5.
6.