MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 23 August 2001
         DOCKET NUMBER: AR2001057716

         I certify that hereinafter is recorded the record of consideration 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:

Mr. John H. Kern		Chairperson
Mr. Thomas Lanyi		Member
Ms. Paula Mokulis		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

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

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APPLICANT REQUESTS: That the narrative reason for his discharge be changed from a chapter 11 discharge to a medical discharge with a change in his reentry (RE) code.

APPLICANT STATES: That about 6 months prior to his enlistment he had a section of skin cancer removed from his upper left arm. He thought all of it had been removed but about 3 weeks into basic training it reappeared. He had his civilian physician send his medical records to the Army hospital. The Medical Review Board reviewed the records (which were several months old). Their conclusion (made even though they had not examined his arm and based on the mistaken belief that his civilian doctor had removed all cancerous tissue) was that immediate attention was not required. The Review Board denied his request for a medical discharge, thereby leaving him and his family quite distressed over the possible ramifications of not treating the affected area immediately. He and his family felt that his condition should be taken care of immediately by his family physician. After consulting with hospital physicians and his commanding officer, he requested a chapter 11 discharge as that would get him home as quickly as possible so he could begin treatment of the arm. Serving in the Regular Army is no longer feasible; however, he would still like to serve his country as a Reservist. According to his local recruiter, he must wait 2 years before applying for reenlistment. Further, as he is 35 years old an age waiver may also be necessary unless his enlistment date can be retroactively applied.

COUNSEL CONTENDS: Counsel makes no additional statement.

EVIDENCE OF RECORD: The applicant's military records show:

The applicant enlisted in the Regular Army on 20 September 1999.

On 13 October 1999, Entrance Physical Standards Board (EPSBD) Proceedings were held. Objective findings (a physical examination) found a red, elevated lesion of the skin on the applicant’s upper arm with tenderness. A diagnosis of squamous cell carcinoma was made. The board recommended that the applicant be separated from the Army for failure to meet medical procurement standards. He had met medical retention standards. The approving authority disapproved the findings of the EPSBD, finding that retention was practical and the condition was not unfitting.

On 14 October 1999, the applicant referred himself for a mental health evaluation. He requested help for a lesion on his upper left arm and severe depression and despair attendant to the re-emergence of the cancerous lesion. The Report of Mental Status Evaluation indicated that he was diagnosed with an adjustment disorder with anxious mood but that (mental health) treatment was not deemed necessary at that time. It was recommended he be expeditiously discharged under the provisions of Army Regulation 635-200, chapter 11 due to anxiety and excessive worry due to his diagnosis of squamous cell carcinoma.

On 14 October 1999, the applicant was counseled that he was being recommended for separation for a lack of discipline and failure to uphold the Army values.

On 14 October 1999, the applicant’s commander initiated separation action on him under the provisions of Army Regulation 635-200, chapter 11 for entry-level status performance and conduct. The applicant acknowledged notification. (His acknowledgement is not available.) He agreed with the separation because he could no longer maintain motivation or the desire to complete training due to the mental anguish and distress he was suffering due to his recently diagnosed skin cancer. The appropriate commander approved his discharge.

On 22 October 1999, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 11, for entry-level performance and conduct. His character of service was uncharacterized, he was given a separation program designator (SPD) code of JGA (involuntary discharge for entry level performance and conduct) and a re-entry code of 3. He had completed 1 month and 3 days of creditable active service.

The applicant provides a letter from his attending physician showing that his skin cancer was treated on 28 October 1999.

Army Regulation 635-200, chapter 11 sets the policy and prescribes procedures for separating members who were voluntarily enlisted in the Regular Army, National Guard or Army Reserve, are in an entry level status and, before the date of the initiation of separation action, have completed no more than 180 days of creditable continuous service, and have demonstrated that they are not qualified for retention. The following conditions are illustrations of conduct that does not qualify for retention: cannot or will not adapt socially or emotionally to military life; cannot meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation or self-discipline; or have demonstrated character and behavior characteristics not compatible with satisfactory continued service.

Army Regulation 40-501 governs medical fitness standards for enlistment, retention, and separation. Paragraph 2-40b(10) states that skin tumors such as basal cell and squamous cell carcinomas surgically removed are not disqualifying for procurement purposes. Paragraph 3-42 states that malignant neoplasms which are unresponsive to therapy or when the residuals of treatment are in themselves unfitting are causes for referral to a medical evaluation board.

Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned RE codes based on their service records or the reason for discharge. Army Regulation 601-210 covers eligibility criteria, policies and procedures for enlistment and processing into the Regular Army (RA) and the U.S. Army Reserve. Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment. That chapter includes a list of armed forces RE codes, including RA RE codes. RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable.

Army Regulation 635-5, SPD/RE Code Cross Reference Table, states that when the SPD is JGA then RE code 3 will be given.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.

2. The Report of Mental Status Evaluation indicated that no mental health treatment was deemed necessary at that time. However, there is no evidence other than the applicant’s self-authored statement to show that the Army was not going to treat his skin cancer. The EPSBD indicated that it had found a red, elevated lesion of the skin on his upper arm with tenderness. Based upon that, a diagnosis of squamous cell carcinoma was made.

3. Since the medical evidence indicated that the applicant did not have skin cancer at the time of his enlistment, he had met procurement standards. Since his cancer reappeared after he entered active duty, and it was treatable, he met retention standards. Therefore, he was not eligible for a medical discharge.

4. From the applicant’s statement, it appears that his major concern was that his condition be taken care of immediately by his family physician. The Board fully understands why the Army would not permit that. The evidence shows that it was not the cancer that resulted in his discharge. Rather, it appears that his anxiety over the Army’s failure to allow him to have his family physician treat him immediately caused his motivation to continue in the Army to fail. Lack of motivation is one of the reasons for a chapter 11 discharge. Therefore, he was discharged under the proper authority and the RE code given was and still is appropriate.

5. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

___JHK__ __TL____ __PM____ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2001057716
SUFFIX
RECON
DATE BOARDED	20010823
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	108.00
2.	100.03
3.
4.
5.
6.