MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 20 June 2002
         DOCKET NUMBER: AR2002068831

         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
Ms. Nancy L. Amos		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’Connor, Jr.		Chairperson
Mr. Roger W. Able		Member
Mr. John T. Meixell		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: In effect, that his administrative separation be changed to a medical discharge.

APPLICANT STATES: That he should have been given a medical discharge because he caught a severe fungus infection in the desert that was eating his feet away. At the time, he accepted the discharge because he could not go to Panama wearing boots. The fungus still comes and goes. He provides his Certificate of Release or Discharge from Active Duty, DD Form 214, as supporting evidence.

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

He enlisted in the Regular Army on 28 August 1979. He completed basic training and advanced individual training and was awarded military occupational specialty 12B (Combat Engineer). He was assigned to Fort Ord, CA on or about 20 December 1979.

On 14 May 1980, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for failing to go to his appointed place of duty.

On 22 May 1980, the applicant completed a separation physical but neither the “is qualified for” (separation) or “is not qualified for” (separation) block is checked.

On 20 June 1980, the applicant received a mental status evaluation and was found to be mentally responsible, able to distinguish right from wrong and to adhere to the right, and to be mentally capable of understanding and participating in any board proceedings.

On 23 June 1980, the commander initiated separation action on the applicant under the provisions of Army Regulation 635-200, paragraph 5-31, Expeditious Discharge Program. The commander cited his constant inability to adapt to the changing work demands that the unit and the Army put on a soldier. He had numerous incidents of disrespect and disobedience of a lawful order and had made no attempt to better himself.

On 23 June 1980, the applicant acknowledged notification of the action and voluntarily consented to the discharge. He provided a statement in his own behalf. He stated that he requested the discharge because he was constantly lied to and mentally harassed beginning in basic training. He wanted out but he was counseled by his squad leader, platoon sergeant, chaplain, and his mother to stay in. But incidents kept happening. He wanted to go to another company

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but instead he was sent to a different platoon. He had two major illnesses – bad
feet and a stomach ailment. They kept treating his feet for a fungus. It got so bad he had to be seen at the troop medical clinic every day. It started eating away his feet, then they started treating it as a dermatological problem. He got severe stomach pain for which he was not treated and which caused bowel problems and urinary problems. They finally gave him an appointment to seen Internal Medicine which determined he did not have an ulcer. He was scheduled for a circumcision but that was messed up. His command would not listen to his problems.

On 24 June 1980, the appropriate authority approved the recommendation and directed the applicant be given an honorable discharge.

On 1 July 1980, the applicant was discharged with an honorable discharge in pay grade E-2, under the provisions of Army Regulation 635-200, paragraph 5-31. He had completed 10 months of creditable active service and had 4 days of lost time.

The applicant’s service medical records show, for foot and stomach problems:

On 25 February 1980, he received treatment for a complaint of athlete’s foot on both feet. A fungal infection versus a contact (reaction) was diagnosed and he was advised to soak his feet, to wear white cotton socks, to use a foot powder, and to return for follow-up care. On 26 February 1980, he referred himself to the Mental Hygiene Clinic. He stated that he always felt nervous and got stomach cramps when he was around other people. He had that problem since he was in his early teens but he was getting headaches daily since being at Fort Ord, CA. He reported drinking and smoking marijuana excessively since he was in the Army. He said he wanted to be discharged and would go absent without leave (AWOL) if he was not discharged. He was diagnosed with a personality disorder and was referred to ADAD (acronym unknown).

On 24 March 1980, he received treatment for a complaint of a rash on his feet which was diagnosed as an apparent fungal infection. He was given a topical cream to apply. On an unknown date, he was treated for chronic athlete’s feet and advised to continue his medications (cream and powder). On 25 April 1980, he was seen for a diagnosis of dermatophytoses pedia (another name for athlete’s foot), resolving. On 11 May 1980, he was seen for a complaint of abdominal pain. Mylanta had provided some relief. An examination of his abdomen revealed minimal tenderness and intact rebound bowel sounds. Colitis was ruled out. It cannot be determined what his treatment was. On 15 May 1980, he was seen for a complaint of stomach pain. He was instructed to do

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physical training at his own pace until he was seen by Internal Medicine Clinic. On 23 May 1980, he was seen for a complaint of urinary tract infection and stated he had cramps in his stomach that hurt so bad he had to stop everything. It cannot be determined if he was treated for stomach pains at that time. On 29 May 1980, he was seen by the Internal Medicine Clinic. The consultation report is partially illegible but it noted that he complained of stomach pain that occurred at any time and lasted 10 minutes to 24 hours. It occasionally interfered with his falling asleep but never woke him from sleep. On 29 May 1980, he was seen for athlete’s feet. He was given medicated cream and advised to soak and scrub, to use telfa pads, and to wear white socks.

On 2 June 1980, he was seen for athlete’s feet. The area looked better and the sores were drying up. He was followed-up on 3 June 1980. On 4 June 1980, the sores were drying up well. On 5 June 1980, the lesions were looking better. On 6 June 1980, the sores were looking good and drying up. On 8 June 1980, the dressings on his feet were changed. On 10 June 1980, the sores on his feet remained the same. On 13 June 1980, the applicant stated “treatment (for feet) is helping a lot.” On 17 June 1980, he was treated for stomach cramps. An abdominal examination was normal, tenderness in the upper abdomen was noted. No rebound pain was noted. He was also treated for his feet rash and it was noted that it was resolving well. On 18 June 1980, he was treated for his feet rash and it was noted that it was resolving very well. On 19 June 1980, he was treated for abdominal pain. It was noted he had been given laxatives and they did seem to help. The pain usually occurred when doing physical training. He had bowel activity sounds, normal percussion, no rebound tenderness or pain on palpation. On 23 June 1980, he was treated for his feet rash. It was noted that the lesions were closed, the skin dried up, and there was great improvement.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. The pertinent paragraph in Chapter 5 provides that members who have completed at least 6 months but less than 36 months of continuous active service on their first enlistment and who have demonstrated that they cannot or will not meet acceptable standards required of enlisted personnel because of poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally or failure to demonstrate promotion potential may be discharged. It provides for the expeditious elimination of substandard, nonproductive soldiers before board or punitive action becomes necessary. No member will be discharged under this program unless he/she voluntarily consents to the proposed discharge.

Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability. The regulation defines “physically unfit” as unfitness due to physical disability.

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The unfitness is of such a degree that a soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty. A decision as to whether or not a soldier should appear before a physical evaluation board is based on the criteria in Army Regulation 40-501, chapter 3.

Army Regulation 40-501 governs medical fitness standards for enlistment, retention, and separation. Paragraph 3-5 (abdominal and gastrointestinal defects and diseases) states that stricture of the rectum with severe symptoms of obstruction characterized by intractable constipation, pain on defecation, or difficult bowel movements requiring the regular use of laxatives or enemas or requiring repeated hospitalization is a cause for referral to a medical evaluation board (MEB). Chronic stomach pain with no underlying cause is not listed as a reason for referral to an MEB. Paragraph 3-38m (skin and cellular tissues) states that fungus infections are causes for referral to an MEB if not responsive to therapy and interfering with the satisfactory performance of duty.

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. The applicant has failed to submit evidences that would satisfy this requirement.

2. The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights. He consented to be voluntarily discharged and there is evidence in his discharge packet statement and in his medical records to show he wanted to be discharged as early as February 1980.

3. Despite the fact the applicant’s separation physical did not clearly identify that he was qualified for separation, there is no evidence to show his complaints met the regulatory criteria for referral to an MEB. There is no evidence to show he had a dermatalogical condition other than athlete’s foot. The last available treatment record for his feet rash indicated the lesions were closed, the skin dried up, and there was great improvement. There is no evidence to show there was an underlying cause for his stomach problems that would have required referral to an MEB and no evidence to show he had a stricture of the rectum with severe symptoms of obstruction.

4. 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

__RVO__ __RWA__ __JTM__ DENY APPLICATION

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

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INDEX

CASE ID	AR2002068831
SUFFIX
RECON
DATE BOARDED	2002/06/20
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	108.00
2.
3.
4.
5.
6.