IN THE CASE OF:	

		BOARD DATE:	  	 16 December 2008

		DOCKET NUMBER:  AR20080017369


 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, correction of his records to show he was medically discharged.

2.  The applicant states, in effect, while attending basic combat training, he became very sick and was misdiagnosed with having a Duodenal Ulcer.  He also states he was being treated at the Roseburg Veterans Affairs Medical Center up until 2005 and was told that his medical condition is not, and was not, a Duodenal Ulcer, but is actually Crohn’s disease.

3.  The applicant provides copies of a VA Form 21-4138 (Statement in Support of Claim), dated 21 August 2008; DD Form 214 (Certificate of Release or Discharge from Active Duty), with an effective date of 4 June 2001; National Personnel Records Center, Military Personnel Records, St. Louis, Missouri, letter, dated
21 March 2008; Standard Form (SF) 539 (Abbreviated Medical Record), dated 13 March 2000; SF 558 (Emergency Care and Treatment), dated 13 March 2000; Admission Cover Worksheet, dated 13 March 2000; Record of Inpatient Treatment, dated 13 March 2000; MEDCOM Form 685-R (Medical Record - Admission Assessment), dated 13 March 2000; DA Form 4700 (Medical Record - Supplemental Medical Data), dated 13 March 2000; SF 511 (Medical Record - Vital Signs), dated 13 March 2000; Radiologic Examination Report, dated
14 March 2000; FSMEDDAC Form 671 (Nutrition Screen:  Medical/Surgical), dated 14 March 2000; MEDCOM Form 691-R (Medical Record - Patient Release/ Discharge Instructions), dated 18 March 2000; Optional Form (OP) 275 (Medical Record Report), dated 29 March 2000; and 2 Healthcare Services Group, Inc., Golden, Colorado, letters, both undated.
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.  After having had prior service, the applicant’s military personnel records show he enlisted in the U.S. Army for a period of 3 years on 3 February 2000.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty (MOS) 14S (Avenger Crewmember).

3.  The applicant's military personnel records contain an initial DD Form 458 (Charge Sheet), dated 28 June 2000, that shows the Commander, C Battery,
1st Battalion, 56th Air Defense Artillery Regiment, Fort Bliss, Texas, preferred charges against the applicant for violation of the Uniform Code of Military Justice (UCMJ), Article 85, with the specification that, on or about 29 May 2000, without authority, he did absent himself from his organization, to wit:  C Battery,
1st Battalion, 56th Air Defense Artillery Regiment, 6th Air Defense Artillery Brigade, located at Fort Bliss, Texas, and remained so absent.

4.  The applicant's military personnel records contain a DA Form 4187 (Personnel Action), dated 28 June 2000, that shows the applicant’s duty status was changed from absent without leave (AWOL) to dropped from rolls (DFR), effective 0001 hours, 28 June 2000.

5.  The applicant's military personnel records contain a DD Form 616 (Report of Return of Absentee), dated 13 September 2000, that shows the applicant surrendered to military authorities at Fort Irwin, California, at 2130 hours,
13 September 2000.

6.  The applicant's military personnel records are absent of copy of his administrative separation packet.

7.  The applicant's military personnel records contain a DD Form 214 that shows he entered active duty on 3 February 2000 and was discharged on 4 June 2001, under other than honorable conditions, in accordance with the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), Chapter 10, (For the Good of the Service), with Separation Code “KFS” and Reentry Code 4.  The DD Form 214 also shows that, at the time of his discharge, the applicant had completed 1 year, 0 months, and 15 days net active service this period and
2 years, 11 months, and 22 days of total prior active service.  The DD Form 214 further shows the applicant had time lost under Title 10, U.S. Code, section 972, from 29 May 2000 through 12 September 2000.

8.  There is no evidence that the applicant was referred to a Medical Evaluation Board or a Physical Evaluation Board.

9.  In support of his application, the applicant provides the following documents:

     a.  VA Form 21-4138, dated 21 August 2008 and DD Form 214, with an effective date of 4 June 2001.  The Statement in Support of his claim was summarized and incorporated in the applicant's request and statement.  The
DD Form 214 was previously introduced and considered in this Record of Proceedings.

     b.  National Personnel Records Center, Military Personnel Records, St. Louis, Missouri, letter, dated 21 March 2008, that informed the applicant his military outpatient record is not available at the National Personnel Records Center and that the military service departments now send those records to the Department of Veterans’ Affairs (VA), Records Management Center for maintenance.

     c.  Copies of a SF 539, dated 13 March 2000; SF 558, dated 13 March 2000; Admission Cover Worksheet, dated 13 March 2000; Record of Inpatient Treatment, dated 13 March 2000; MEDCOM Form 685-R, dated 13 March 2000; DA Form 4700, dated 13 March 2000; SF 511, dated 13 March 2000; Radiologic Examination Report, dated 14 March 2000; FSMEDDAC Form 671, dated
14 March 2000; MEDCOM Form 691-R, dated 18 March 2000; and OP 275, dated 29 March 2000.  These records show the applicant was admitted to the Emergency Room at Reynolds Army Community Hospital, Fort Sill, Oklahoma, at 1542 hours, 13 March 2000.  The records also show, in pertinent part, that the applicant was subsequently admitted to the hospital, underwent an Upper GI procedure, and was diagnosed with a Duodenal Ulcer, and abdominal pain and vomiting with dyspepsia (indigestion).  The OP Form 275 shows, in pertinent part, “[t]he patient admits to significant amount of stress as he is currently undergoing Basic Training.”  The Disposition section of this form also shows the “[d]ischarge plan was for the patient to be discharged back to his barracks with light duty restrictions for the next five days with PT [physical training] at own pace.”  The applicant was discharged from the hospital on 18 March 2000.
     d.  Two Healthcare Services Group, Inc., Golden, Colorado, letters, both undated, that attest to the applicant’s personal and professional character.  Mr. Duane D_____, Account Manager, states that the applicant has worked for him since 9 September 2005, he is aware that the applicant has a lot of pain from his disease, but he has only called in sick approximately 4 times in the last 3 years.  Mr. Hans Y_____, District Manager, states the applicant has been consistent, reliable, and trustworthy throughout the time he has known him.

10.  The online MedicineNet website at www.medicinenet.com defines Duodenal Ulcer as an ulcer (a hole in the lining) of the duodenum (the first portion of the small intestine).  The MedicineNet website defines Crohn's disease as a chronic inflammatory disease of the intestines that primarily causes ulcerations (breaks in the lining) of the small and large intestines, but can affect the digestive system anywhere from the mouth to the anus.  (It is named after the physician who described the disease in 1932.)

11.  Army Regulation 40-501 (Standards of Medical Fitness) provides information on medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures.  Chapter 2 (Physical Standards for Enlistment, Appointment, and Induction), paragraph 2-3 (Abdominal organs and gastrointestinal system), in pertinent part, provides that an authenticated history of active ulcer of the stomach or duodenum confirmed by x-ray or endoscopy is cause for rejection for appointment, enlistment, and induction.

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time of the applicant's discharge, set forth policies, responsibilities, and procedures in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  Chapter 3 (Policies), paragraph 3-3 (Conditions existing before active military service), provides 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.

13.  Army Regulation 635-40, Chapter 4 (Procedures), paragraph 4-10 (The Medical Evaluation Board), provides that medical evaluation boards are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualification for retention based on the criteria in Army Regulation
40-501 (Standards of Medical Fitness).  If the Medical Evaluation Board determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a Physical Evaluation Board.

14.  Army Regulation 635-200, in effect at the time of the applicant's separation from active duty, prescribed policies and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons.  Chapter 10 of this Army regulation provides that a member who has committed an offense or offenses, the punishment for any of which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service.  An Under Other Than Honorable discharge certificate normally is appropriate for a member who is discharged for the good of the Service.

15. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his records should be corrected to show he was medically discharged because medical personnel misdiagnosed his condition as a Duodenal Ulcer; however, he suffers from Crohn’s disease.

2.  The applicant’s request to change his administrative discharge to a medical discharge was carefully considered.  The evidence of record shows the applicant was medically diagnosed with a Duodenal Ulcer in March 2000, approximately one month after entering the Army.  There is no evidence of record, and the applicant provides insufficient evidence, to show he suffers from Crohn's disease.  In any event, the evidence of record shows that an authenticated history of active ulcer of the stomach or duodenum confirmed by x-ray or endoscopy is cause for rejection for appointment, enlistment, and induction.  In this regard, such medical condition (e.g., Duodenal Ulcer or Crohn's disease) would be considered to have existed prior to service and would render the applicant medically disqualified for military service.  Therefore, upon discovery, the applicant could have been administratively separated as not having met medical procurement standards.  However, he departed AWOL before any such medical determination could have been made.

3.  There is no evidence of record that shows the applicant was found unfit for retention in military service during the period of service under review.  Moreover, the applicant provides insufficient evidence to show that his medical condition was misdiagnosed at the time.

4.  There is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial credible evidence to rebut the presumption.  The applicant fails to provide such evidence.  Therefore, since there is no evidence of record to show that the applicant's medical condition was determined to be medically unfitting for retention by a MEB/PEB in accordance with Army Regulation 40-501, there was no basis for medical discharge.  Therefore, the applicant is not entitled to correction of his records to show he was medically discharged.

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

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)                                         AR20080017369



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ABCMR Record of Proceedings (cont)                                         AR20080017369



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