RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  25 September 2007
	DOCKET NUMBER:  AR20070004080 


	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.


Ms. Catherine C. Mitrano

Director

Ms. Jeanne Marie Rowan

Analyst

The following members, a quorum, were present:


Mr. William Powers

Chairperson

Ms. LaVerne Douglas

Member

Mr. Jerome Pionk

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, in effect, that his honorable discharge be changed to a medical discharge due to service-related medical conditions.   

2.  The applicant states, in effect, he would like a thorough review of the process and procedures or protocol that was used when he was discharged honorably instead of medically.  He alleges that the Army National Guard of the State of Louisiana (LAARNG) did not properly separate him.  

	a.  Additionally, he would like to have his compensation and pension claim with the Department of Veterans Affairs reopened due to the long term negative effects of the medication, dilantin, to his teeth and gums.  

	b.  Further, he states he would like to be compensated by the Department of Veterans Affairs (VA) for increased depression and his lack of motivation due to his health and dependence on his wife and family for financial support.  He states, in effect, his speech, fine motor skills, and memory have significantly deteriorated since his brain surgery specifically his quality of life is poor due to the alleged long term effects of the medication that he takes to prevent epileptic type seizures.  

	c.  He also is asking for a complete set of his medical records from the New Orleans Department of Veterans Affairs Medical Treatment Center.  

	d.  The applicant alleges his unit did not want to complete the requirements of a line of duty investigation for it did not want the negative publicity. 

3.  The applicant provides a self-authored narrative in support of this application.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's military records show he enlisted in the Regular Army on 15 November 1990 for a period of 3 years.  He successfully completed basic combat and advanced individual training and was awarded the military occupational specialty (MOS) 77F (Petroleum Supply Specialist).  He was released from active duty on 11 August 1993.  He completed 2 years, 8 months and 27 days of net active service, which was characterized as honorable. 

3.  He immediately enlisted on 12 August 1993 in the LAARNG. He completed 5 years, 2 months and 26 days in the LAARNG as a petroleum supply specialist and was honorably discharged upon his expiration of term of service on 7 November 1998.  

4.  On 5 August 1996, the applicant was assigned to Headquarters and Headquarters Company (HHC), 1st Battalion (BN), 244th Aviation Brigade 
(AV BDE), located in New Orleans, Louisiana, per Orders P298-003, dated 24 October 1996, published by the State of Florida, Departments of the Army 
and Air Force National Guard.

5.  On 25 July 1997, the applicant was operating heavy machinery, a forklift, while ordered to active duty for LAARNG unit annual training.  He suffered a seizure and lost consciousness while operating the forklift.  He was taken by ambulance to a civilian medical treatment facility emergency room.  He reported he had recurrent headaches for nearly 10 years.  He was diagnosed with a mass on the right side of his brain.  He was stabilized and sent to the New Orleans VA Medical Center for further evaluation and treatment. 

6.  On 1 August 1997, he had a right paritotemporal craniotomy surgical procedure to relieve a mass on his brain at the New Orleans VA Medical Center. The medical diagnosis was a brain abscess on his right vertex.  Post surgery there was no neurological deficits observed or noted on medical record charts.  Laboratory results show the abscess material was growing streptococcus.  He continued to receive medical treatment and intravenous antibiotics to suppress the potential for further infection.

7.  On 18 August 1997, he was medically discharged from the hospital and his condition was noted as stable, with light duty ordered and regular diet.  He was prescribed anti-seizure medication and told to return for follow up treatment with the VA in 4 weeks.  Medical records show he complied with medical instructions and routinely followed up with his treating physician. 
8.  On an unknown date in 1997, the applicant wrote a self-authored handwritten request to his commander requesting a Medical Evaluation Board (MEBD).  He stated, in effect, that he was receiving medical treatment for a brain abscess and that he would be susceptible to future seizures.  His medical condition post surgery prevented him from performing his military duties to include not being able to drive, to wear his protective helmet, and he was to avoid physically stressful conditions.  

9.  On 12 September 1997, the National Guard Bureau (NGB) approved HHC, 1st BN, 244th AV BDE, Line of Duty Investigation (LOD) utilizing the procedures in Army Regulation 600-33 (Line of Duty Investigations).  The LOD investigating officer found the applicant's injury to be in line of duty.  

10.  On 23 March 1998, the LAARNG state surgeon requested medical documentation and clarification from the New Orleans VA, which is the medical treatment facility that was actively treating the applicant.  The state surgeon requested a current diagnosis, status of the applicant's physical limitations whether temporary or permanent and the treating physician's personal opinion on the applicant's ability to continue military service. 

11.  On 1 May 1998, the applicant's treating physician at the New Orleans VA stated, in effect, the applicant had a seizure disorder from a brain abscess, which would require long-term care and anti-epileptic medications.  The physician also stated the applicant should not be subjected to physical stress, sleep deprivation, or working extended hours to exhaustion and working in extreme temperatures.  The physician further stated these type conditions could precipitate seizure activity.

12.  On 21 May 1998, LAARNG published Orders 141-003 ordering the applicant to Brooke Army Medical Center (BAMC) in San Antonio, Texas for a neurological medical consultation scheduled for 27 May 1998.  The purpose of the neurological medical evaluation was to determine the applicant's medical fitness for duty and potential incapacitation from his brain abscess. 

13.  On 27 May 1998, the chief of Neurology Services at BAMC medically evaluated the applicant and determined he required further vascular and medical evaluation.  The consulting physician stated, in effect, the applicant's medical condition was not uncontrolled and recommended subsequent treatments and trial therapy then evaluation prior to consideration by a MEBD.  The physician wrote in his intake interview that the patient wanted out of the Army National Guard.   
14.  On 7 November 1998, the applicant separated from the LAARNG with an honorable characterization of service.  The reason given on his NGB Form 96 (National Guard Bureau Report of Separation and Record of Service) was for expiration of his service obligation (ETS).  

15.  Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

16.  Title 38, United States Code, sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency. 

17.  Army Regulation 40-501 (Standards of Medical Fitness) states, in pertinent part, that it provides the standards for medical fitness for retention and separation, including retirement.  Soldiers with medical conditions listed in this regulation should be referred for disability processing through their serving military medical treatment facility.  

18.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides 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.  Those members who do not meet medical retention standards will be referred to a Physical Evaluation Board (PEBD) for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.

19.  Army Regulation 635-40, paragraph 3-2b(2), provides that when a member is being separated by reasons other than physical disability, his or her continued performance of assigned duty commensurate with his or her rank or grade until he or she is scheduled for separation or retirement creates a presumption that he or she is fit.  This presumption can be overcome only by clear and convincing evidence that he or she was unable to perform his or her duties for a period of time or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention is that his discharge should be changed to medical retirement vice separation due to his ETS.  There is evidence of record that the applicant was undergoing medical treatment at the New Orleans VA Medical Center.  Further, the evidence shows the applicant, applicant's company commander and the LAARNG state surgeon initiated a MEBD request.  The state surgeon ordered the applicant to BAMC for a medical evaluation and determination of fitness, if warranted.  The medical opinions of the Chief of Neurology at BAMC were the applicant should be retained on an active Army Reserve status and that he should receive optimal treatment.  He stated, in effect, that the applicant's seizure disorders were reasonably controlled by prescribed medications and recommended more trial therapy prior to preparation and then consideration by a MEBD.  

2.  The applicant has not submitted any evidence that he extended his enlistment or that he reenlisted to continue medical treatment as directed by the Chief of Neurology at BAMC.   He also did not have a medical condition that would have warranted him being considered by a MEBD at the time of his separation.  Without an MEBD, there would have been no basis for referring him to a PEBD.  Without a PEBD, the applicant could not have been issued a medical discharge or retired for physical unfitness. 

3.  Since the applicant's medical condition was not medically unfitting for retention at the time in accordance with Army Regulation 40-501, there was no basis for medical retirement or separation.

4.  The VA is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, the applicant's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify him for VA benefits based on an evaluation by that agency.  The applicant should address his request for VA medical records and benefits to that government agency.  The Army Board of Corrections for Military Records can not address the applicant's requests that specifically pertain to his VA disability ratings, financial compensation or entitlements nor can it assist the applicant in obtaining his medical records from the New Orleans VA.

5.  In order to justify correction of a military record the applicant must, 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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__WP___  __LD____  __JP____  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 for correction of the records of the individual concerned.





_____William Powers_________
          CHAIRPERSON




INDEX

CASE ID
AR20070004080
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070925
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.
108.00
2.

3.

4.

5.

6.