IN THE CASE OF:	  

		BOARD DATE:	  23 October 2008

		DOCKET NUMBER:  AR20080008297 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his undesirable discharge be changed to a medical discharge.  He requests that he be given a medical evaluation, that he be assigned a disability rating based on that examination, and recovery of disability retirement pay from the date of his discharge.

2.  The applicant states, in effect, he has proof that he had bacterial meningitis while serving in the U. S. Army in 1969.  His medical records contained proof that he had the deadly disease, but his medical records were destroyed in 1969.  He states the disease has altered his life with severe migraine headaches on a weekly basis (every 3 to 4 days).  He has been in and out of a wheelchair because of the damage caused by multiple spinal taps performed on him by inexperienced interns.  He states he was falsely accused of being absent without leave (AWOL) by the doctor that authorized the untrained interns to perform 10 or more lumbar punctures, which resulted in his undesirable discharge.

3.  He states that he was forced to continue serving in the U.S. Army, even though he was not physically or mentally capable of performing the rigorous military duties.  He was denied medication for his persistent lower back pain and violent migraines caused by the disease.  He was ridiculed, degraded, humiliated, and punished.  He was then booted out of the U.S. Army with an undesirable discharge for unfitness.




4.  The applicant provides a statement; a copy of DA Form 20 (Enlisted Qualification Record); Clinical Record Cover sheet, dated 22 May  
1969; Narrative Summary, dated 6 June 1969; an extract from the internet; DA Form 20B (Record of Court-Martial Conviction); separation document (DD Form 214); two letters from the Department of Defense, dated 22 September 2003 and 16 December 2003; a letter from the Department of the Army Madigan Army Medical Center, dated 15 April 2004; an extract from the Schedule of ratings for neurological conditions and convulsive disorder; an extract from Title 10 U.S.C.
Chapter 61; a first endorsement for a request for elimination under the provisions of Army Regulation 635-212 (Personnel Separation) for unfitness; a letter addressed to his state representative, dated 10 June 2008; a Consult Request; a letter addressed to Chief, Congressional and Special Actions, Army Review Boards Agency, dated 28 July 2008; and a Department of Veterans Affairs (DVA) Rating Decision, dated 23 June 2008.

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 personnel record shows he was inducted into the Army of the United States on 27 February 1969.  He completed the necessary training and was awarded the MOS 31N (Communications Systems and Circuit Controller).  

3.  The Clinical Record Cover Sheet that the applicant submitted shows while he was in basic combat training he was diagnosed with meningitis due to neisseria meningitis.  The applicant was seriously ill from 29 March to 1 April 1969 and placed on convalescent leave from 11 April to 11 May 1969.  He was treated with general medicine and given temporarly restricted duty.



4.  The Narrative Summary (NARSUM) that the applicant submitted shows that during the fourth week of basic training the applicant had complaints of chronic "URI" for several weeks and was admitted to Madigan Hospital for further evaluation to rule out meningitis.  The applicant received treatment for his condition, and he was given 3 weeks of convalescent leave.  However, upon returning from convalescent leave he went AWOL for three weeks.  He had improved without complications and he was returned to duty with follow up visits to his local dispensary and to the neurology clinic for his headaches and back pain.

5.  On 27 February 1970, the applicant was convicted by a summary court-martial for being AWOL during the period from 9 January 1970 to 8 February 1970 and 13 February to 17 February 1970.  His punishment consisted of 
60 days of restriction and a forfeiture of $60.00 per month for 1 month.

6.  On 17 December 1970, the applicant was convicted by a special court-martial for being AWOL during the period from 9 April to 13 September 1970.  His sentence consisted of confinement for 60 days (suspended for 4 months), a forfeiture of $50.00 per month for 6 months, and reduction to private/pay grade E-1.  

7.  The applicant's discharge packet is not included in the available records.  However, his DD Form 214 shows he had a history of being AWOL.

8.  On 18 February 1971, the approving authority approved the applicant's discharge under the provisions of Army Regulation 635-212 for unfitness and directed that the applicant be issued an Undesirable Discharge Certificate. 

9.  On 26 February 1971, the applicant was discharged.  The DD Form 214 he was issued shows he completed 1 year, 1 month, and 28 days of Net Service This Period and he had accrued 302 days of time lost.

10.  Item 26a (Non-Pay Periods Time Lost) of his DD Form 214 shows the applicant was AWOL during the period from 26 April 1969 to 13 May 1969; from 9 January to 7 February 1970; from 13 February to 16 February  1970; from 
9 April to 12 September 1970; and from 14 September to 17 December 1970. 

11.  The evidence the applicant submitted shows his efforts to get a medical examination from the DVA.  The DVA subsequently, increased the applicant's compensation/rating from 10 percent disabled to a 50 percent disabled.

12.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

13.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 6a(1) of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

14.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

15.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

16.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) sets forth policies, responsibilities, and procedures that apply in determining whether a soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  The fact that a Soldier has condition listed in the VASRD does not equate to a finding of physical disability.  There is no legal requirement in arriving at the rated degree on incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying.  Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.

17.  Title 38, United States Code, permits the Department of Veterans Affairs (DVA) to award compensation for disabilities which were incurred in or aggravated by active military service.  The DVA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings.

18.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his undesirable discharge be upgraded to a medical discharge.  He also requests a medical evaluation and recovery of disability retirement pay.

2.  The evidence shows the applicant was convicted by a summary and special courts-martial for being AWOL during the periods of 9 January to 8 February 1970 and from 9 April to 13 September 1970.

3.  The applicant’s DD Form 214 shows he was AWOL during the periods from  
26 April to 13 May 1969; from 9 January to 7 February 1970; from 13 February to 16 February 1970; from 9 April to 12 September 1970; and from 14 September to 17 December 1970.  As such, an undesirable discharge was equitable and proper.

4.  The applicant’s contentions were considered along with the documents he submitted; however, the evidence is clear the applicant was AWOL several times.  He received treatment for his medical condition while at basic combat training, however, there is no evidence that his condition was ever determined to be physically unfitting.  

5.  While it is understandable that the applicant would now like a separation upgrade to a medical discharge due to meningitis, there is no evidence that the applicant was unable to perform his duties as a result of meningitis, at the time of his discharge.

6.  In addition, a Soldier in the process of elimination action due to misconduct may not be processed for physical disability, 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.

7.  In order to justify correction of a military record the applicant must satisfactorily show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit sufficient evidence that would satisfy this requirement.  Therefore, he is not entitled to a medical discharge, medical evaluation, and disability retirement pay.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ____X___  ____X__  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.




      _______ _ X  _______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080008297



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ABCMR Record of Proceedings (cont)                                         AR20080008297



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