IN THE CASE OF:  
		 
	BOARD DATE:	      25 September 2008

	DOCKET NUMBER: AR20080011652 


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 her honorable discharge be voided.

2.  The applicant states, in effect, that she was misdiagnosed with irritable bowel syndrome (IBS) and erroneously discharged with a disability that was found to have existed prior to entering service (EPTS).  She contends that there is no medical evidence to support the diagnosis and that she disagreed with the diagnosis from the beginning. 

3.  The applicant provides four 2008 medical records; three 2001 medical reports; and a copy of her DD Form 214 (Certificate of Release or Discharge from Active Duty). 

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 enlisted on 9 October 2003.

3.  A Medical Board Narrative Summary states, in pertinent part, that the applicant was referred for an EPTS board for secondary irritable bowel syndrome.  The summary states that the applicant “stated she had a history of inflammatory bowel disease for four years for which she stopped Zelnorm prior to entering basic training.  This soldier stated that she was told by her Recruiter to stop her medication and tell no one that she had a history of irritable bowel syndrome.”  The summary further states that a note was received from a doctor with a diagnosis of irritable bowel syndrome versus inflammatory bowel syndrome dated 23 April 2001.  The applicant was diagnosed with IBS and anxiety disorder.   

4.  On 24 February 2004, a Medical Evaluation Board (MEB) diagnosed the applicant with secondary IBS (EPTS).  The MEB recommended that the applicant be discharged under the provisions of Army Regulation 635-40, chapter 5, EPTS medical conditions.  The applicant concurred with the board’s findings and recommendation on 24 February 2004. 

5.  The applicant requested discharge from military service for a physical disability based upon the findings and recommendation of an MEB which considered her unqualified for retention in the military service due to a physical disability that was found to have existed prior to her entry into active service. 

6.  On 26 February 2004, the applicant consulted with counsel and acknowledged her pending separation under the provisions of Army Regulation 635-40, chapter 5, for EPTS disability.  

7.  On 1 March 2004, the separation authority approved the recommendation for separation and directed that the applicant be furnished an honorable discharge.  

8.  The applicant was honorably discharged on 9 March 2004 under the provisions of Army Regulation 635-40, chapter 5, for disability, existed prior to service - Medical Board.  She had served 5 months and 1 day of creditable active service.  

9.  In support of her claim, the applicant provides 2008 medical documents which state that she does not have irritable bowel syndrome.  The applicant also provides 2001 medical documents which show she underwent a colonoscopy (findings:  the examined ileum was normal) and upper GI endoscopy (findings: there was no evidence of significant pathology in the entire esophagus, entire stomach, and examined duodenum).     

10.  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.  In pertinent part, it states that according to accepted medical principles, certain abnormalities and residual conditions exist that, when discovered, lead to the conclusion that they must have existed or have started before the individual entered the military service.  Likewise, manifestation of lesions or symptoms of chronic disease from date of entry on active military service (or so close to that date of entry that the disease could not have started in so short a period) will be accepted as proof that the disease existed prior to entrance into active military service. 

11.  Army Regulation 635-40, chapter 5, provides for separation of an enlisted Soldier for non-service aggravated EPTS conditions when Soldier requests waiver of Physical Evaluation Board (PEB) evaluation.  This chapter is applicable to enlisted Soldiers on active duty for more than 30 days.  If the time period exceeds 6 months or if the condition is disqualifying under Army Regulation 40-501, chapter 3, a Soldier is entitled to evaluation by a PEB or may waive evaluation under this chapter.  The regulation requires that the Soldier is eligible for referral into the disability system; the Soldier does not meet medical retention standards as determined by the medical board; the disqualifying defect or condition existed prior to entry on current period of duty and has not been aggravated by such duty; the Soldier is mentally competent; knowledge of information about his/her medical condition would not be harmful to the Soldier’s well being; further hospitalization or institutional care is not required; after being advised of the right to a full and fair hearing, the Soldier still desires to waive PEB action; and the Soldier has been advised that a PEB evaluation is required for receipt of Army disability benefits, but waiver of the PEB will not prevent applying for VA benefits. If the Soldier is in entry level status at the time of processing, the service may be described as uncharacterized.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant contends that there is no medical evidence to support the IBS diagnosis, her MEB Narrative Summary states that a doctor diagnosed her with IBS on 23 April 2001.  

2.  The 2001 medical documents provided by the applicant are noted.  However, the evidence of record does not support the applicant’s contention that she disagreed with the IBS diagnosis from the beginning.  Evidence of record shows that she agreed with the MEB findings and recommendation on 24 February 2004 and that she requested separation from the military service by reason of an EPTS physical disability.
3.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize her rights.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  Therefore, there is no basis for granting the applicant’s request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___xx___  __xx____  __xx____  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.


      _______ _ xxxx_____   ___
               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)                                         AR20080011652



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ABCMR Record of Proceedings (cont)                                         AR20080011652



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