RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  26 April 2007
	DOCKET NUMBER:  AR20060014458 


	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. Gerard W. Schwartz

Acting Director

Mr. Dean L. Turnbull

Analyst

The following members, a quorum, were present:


Mr. William D. Powers

Chairperson

Mr. William F. Crain

Member

Mr. Dale E. DeBruler

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 that his reentry eligibility (RE) code of RE-4 be corrected to show RE-3.

2.  The applicant states, in effect, his record is in error because he does not have ulcerative colitis, a lifetime disease, which would keep him from serving in the Army.  He states, in effect, two doctors who are specialists in this field told him that he does not have this disease.  At the time he was serving on active duty the disease presented itself as a lifetime disease, but for the past seven years he has had no signs of the disease. 

3.  The applicant states, in effect, that he would like to clear up some inconsistencies in his records that were made under the mistaken assumption that he has a lifetime disease.  He believes that his RE-4 should be changed to RE-3 since he does not have a lifetime disease.  He states, in effect, he does not remember what the doctor asked him during his preexamination, but he did not say "I deny any history of abdominal pain" and "I developed ulcerative Colitis in 1996 and it lasted until 1997."  

4.  He told the doctor that he did not have any pain at the time and his condition was the worst between 1996 and 1997.  He states that he smoked and chewed tobacco occasionally and at times switched off smoking when he was preparing for (PT) physical training tests.  

5.  He further states that his doctor told him that tobacco did not cause his ulcerative colitis.  The doctor told him that the condition was stress related. However, that was an assumption at that time.  

6.  He states while he was attending college, he made the connection that chewing tobacco caused his ulcerative colitis.  He quit using tobacco and the ulcerative colitis finally went away for good.

7.  The applicant provides:

     a.  a copy of a letter dated 6 October 2006;

     b.  a copy of a Operation Report from the USIACH (U.S. Ireland Army Community Hospital) dated 29 May 2003.  In this report, it states that the applicant had a colonoscopy procedure done and his colon was completely normal; and

     c.  a copy of a DD Form 214 (Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 12 August 1999.  The application submitted in this case is dated 6 October 2006.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant's records show that he entered active duty on 20 April 1993 for a period of four years.

4.  His last unit of assignment was with the Troop C, 14th Squadron,  
16th Cavalry Regiment, Fort Knox, Kentucky.  He served in the military occupational specialty as a 19K2O (M1 Armor Crewman).

5.  On 17 March 1997, the applicant underwent a Medical Evaluation Board (MEBD).  According to the MEBD, the applicant was diagnosed with ulcerative colitis, bloody diarrhea secondary to ulcerative colitis, and was "PPD" positive.  On 25 March 1997, the applicant agreed with the board's findings and recommendations and elected not to continue on active duty.  The applicant was then referred to the Physical Evaluation Board (PEB).

6.  On 1 April 1997, an informal PEB convened and determined that the applicant was physically unfit due to Ulcerative colitis with bloody diarrhea, requiring high dose of oral steroids and anti-inflammatory medications (30 percent disabling) (MEBD diagnoses 1, 2, and NARSUM).  The PEB determined that MEBD diagnosis 3 (PPD positive) was not unfitting and not ratable.  

7.  The PEB determined that the applicant symptoms and his profile restrictions precluded his performance of the duties of his grade and MOS.  The PEB further determined that "based on a review of the objective medical evidence of record, the PEB findings that the Soldier's medical and physical impairment prevents reasonable performance of duties required by grade and military specialty."  However, the applicant's condition was not sufficiently stable for final adjudication.  On 3 April 1997, the applicant had concurred with those findings and recommendation and waived a formal hearing.

8.  On 1 June 1997, the applicant was honorably discharged and his name was placed on the TDRL the following day.

9.  The DD Form 214 he was issued shows that he was assigned a Separation Program Designator (SPD) code of SFK, an RE code of RE-4, and that he completed a total of 4 years, 1 months, and 12 days of active service.

10.  The informal PEB recommended that the applicant be placed on temporary disability retired list with reexamination during 1 April 1998.  On 13 May 1998, the PEB found that the applicant's current condition was considered sufficiently stable for final adjudication and found the applicant physically unfit and recommended a combined rating of 10 percent.  The PEB recommended separation with severance pay if otherwise qualified.

11.  On 27 May 1998, the applicant nonconcurred with the findings and recommendation but waived a formal hearing.  On 30 May 1998, the applicant submitted an appeal.

12.  The applicant submitted the appeal because at the time he his periodic physical examination, he was still having slight complications of ulcerative colitis. However, three days later he was rear ended by a drunk driver.  At that time his ulcerative colitis returned with bleeding and diarrhea.  He requested time to recover from the condition before final disposition was made on his case.

13.  On 4 June 1998, the PEB reconsidered the applicant's condition and found that the applicant's impairment has not sufficiently stabilized to permit final adjudication and recommended retention on TDRL for additional reexamination on 1 June 1999. 

14.  On 24 June 1999, the PEB found that the applicant remained physically unfit to reasonably perform the duties required by previous grade and military specialty.  The applicant's condition was considered sufficiently stable for final adjudication, so the PEB recommended he be permanently retired with a combined rating of 30 percent.

15.  On 12 August 1999, the applicant was removed from TDRL and placed on the retired list with a 30 percent disability.

16.  AR 635-5-1 (Separation Program Designated Codes), Table 2-3, states that SPD SFK denotes Retirement, Disability, Temporary.

17.  The Army Human Resources Command publishes a cross-reference of SPD and RE codes.  This cross-reference shows SFK is assigned an RE code  
of 4.

18.  Ulcerative colitis is an inflammatory bowel disease (IBD), the general name for diseases that cause inflammation in the small intestine and colon.  It can be difficult to diagnose because its symptoms are similar to other intestinal disorders and to another type of IBD called Crohn’s disease.  Some of these problems go away when the colitis is treated.  Some people have long periods of remission, when they are free of symptoms.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his RE code of RE-4 should be corrected to show RE-3.

2.  The evidence shows that the applicant was diagnosed and treated for the ulcerative colitis.  His condition was sufficiently stabilized and the applicant was removed from the TDRL on 12 August 1999, and placed on permanent disability retired list with 30 percent disability.

3.  Based on the applicant's separation for physical disability, the SPD of SFK and the RE-4 code was appropriately entered on his DD Form 214.  Therefore, the applicant is not entitled to correction of his records to show RE-3.

4.  Although, the applicant claimed that his condition went away for good, as a result of not using tobacco, ulcerative colitis is very unpredictable and can reoccur at anytime.  While civilian physicians have now stated that the applicant never had ulcerative colitis, that is simply their medical opinion, an opinion given years after the applicant's placement on the TDRL.  The applicant's claim of inconsistencies is noted.  However, he has not submitted any documentation to show any inconsistencies in his processing by the MEBD or PEB.

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

6.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 12 August 1999; therefore, the time for the applicant to file a request for correction of any error or injustice expired on  
11 August 2002.  The applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

_________  _______  ________  GRANT FORMAL HEARING

__ded____  ___wdp_  ___wfc___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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 for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.




__________William D. Powers_______
          CHAIRPERSON




INDEX

CASE ID
AR20060014458
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070426
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.