RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  25 October 2005
	DOCKET NUMBER:  AR20050001052 


	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. James E. Anderholm

Chairperson

Mr. Jose A. Martinez

Member

Ms. LaVerne M. Douglas

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests reconsideration of the Board’s denial of his request to upgrade his discharge under other than honorable conditions (UOTHC), and to correct his military medical records to show that he suffered internal injuries as a result of a motorcycle accident.

2.  The applicant states that his motorcycle accident caused internal injuries and contributed to his current medical condition of nerve damage and disc disease.  His motorcycle accident also caused him to suffer from Post-Traumatic Stress Disorder (PTSD), which has caused him to experience horrific flashbacks, depression, anxiety, sleeplessness and, to mask these symptoms, drug and alcohol abuse.  The applicant adds that he was not properly medically screened prior to his enlistment.  Also, he never consulted with legal counsel in conjunction with his discharge, nor did he sign any documents which stated that he did.

3.  The applicant provides a diagnostic radiology dated 4 December 1998 which shows that the applicant had an L5-S1 disc space narrowing and transverse process anomaly.  He also submits a patient instruction sheet dated 12 September 2004 which shows the medication he was prescribed.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20040001782, on 30 November 2004.

2.  Army Regulation 635-40, paragraph 1-2, in effect at the time, provided that no enlisted member may be referred for physical disability processing when action has been or will be taken to separate him or her for unfitness, except when the officer exercising general court-martial jurisdiction determines that the disability was the cause or substantial contributing cause of the misconduct, or that circumstances warrant physical disability processing in lieu of administrative processing.  A copy of the signed decision of the general court-martial authority directing physical disability processing will be included with the records.

3.  Army Regulation 635-40, in effect at the time, provided that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a Medical Evaluation Board (MEB).  Those members who do not meet medical retention standards will be referred to a physical evaluation board (PEB) for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.  

4.  Army Regulation 635-40, in effect at the time, stated that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  The overall effect of all disabilities present in an individual whose physical fitness is under evaluation must be considered both from the standpoint of how the disabilities affect the individual’s performance, and requirements which may be imposed on the Army to maintain and protect him during future duty assignments.  All relevant evidence must be considered in evaluating the fitness of a member.  When a member is referred for physical evaluation, evaluations of his performance of duty by his supervisors may provide better evidence than a clinical estimate by a physician of the member’s physical ability to perform the duties of his office, grade, rank, or rating until the time he was referred for physical evaluation.  Thus, if evidence establishes that the member adequately performed the normal duties of his office, grade, rank or rating until the time he was referred for physical evaluation, he might be considered fit for duty, even though medical evidence indicates his physical ability to perform such duties may be questionable. 

DISCUSSION AND CONCLUSIONS:

1.  Medical records which show that the applicant suffered from nerve damage and disc disease 18 years after his discharge does not establish that he had these conditions while he was on active duty.

2.  The applicant has not submitted any documentation which would show that he has been diagnosed with PTSD while he was on active duty.

3.  However, even if the applicant did have nerve damage, disc disease and PTSD while he was on active duty, there is no evidence or indication that these conditions were medically disqualifying or physically unfitting.  As such, he would not have been eligible to be considered for separation due to physical unfitness.

3.  Also, since the applicant was pending a discharge UOTHC due to his conviction by two summary courts-martial, he could not be referred to physical disability processing in accordance with Army Regulation 635-40.

4.  As such, there is no basis to correct the applicant’s medical records or to upgrade his discharge UOTHC.

5.  The Board stated in its previous consideration that the applicant, after consulting with counsel, acknowledged his contemplated separation for misconduct.  He also elected not to submit a statement in his own behalf.  The applicant refutes that statement in his current request to the Board.  In this regard, the applicant stated in his signed request for discharge dated 4 August 1980, “I have been advised by my consulting counsel of the basis for the contemplated action to accomplish my separation for misconduct . . .”

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____lmd_  ____jea__  ___jam__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20040001782, on 30 November 2004.




_________James E. Anderhjolm______
          CHAIRPERSON




INDEX

CASE ID
AR20050001052
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20051025
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.