IN THE CASE OF:	  

		BOARD DATE:	  4 February 2010

		DOCKET NUMBER:  AR20090009517 


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 that his honorable discharge be changed to a disability discharge.

2.  The applicant states, in effect, that both periods of his service, which total 5 years, should be changed to show that he was unfit and that his discharge be changed to show a disability discharge.  He also states that the Army failed to follow Army regulations which required the doctors to notify his unit commander, fill out a DD Form 3349 (Physical Profile), and refer him to a medical evaluation board (MEBD).  The applicant continues to state that he was a member of the Personnel Reliability Program (PRP) and, in accordance with Army Regulation 50-5 (Nuclear Surety) and Army Regulation 40-501 (Standards of Medical Fitness), the doctors failed to take his complaints of a duodenal ulcer and emotional and mental disturbances seriously.  The applicant also states that he was hospitalized during both of his tours for these illnesses.

3.  The applicant provides an extensive self-authored statement and copies of the following documents in support of this application:  a DA Form 3180 (Personnel and Evaluation Record), a DA Form 2985 (Admission and Information), a Standard Form 93 (Report of Medical History), three Standard 
Forms 600 (Chronological Record of Medical Care), a DA Form 5181-R (Screening Note of Acute Medical Care), two DA Forms 4700 (Medical Record - Supplemental Medical Data), a Standard Form 509 (Clinical Record), a Standard Form 513 (Consultation Sheet), and a DA Form 3647 (Inpatient Treatment Record Cover Sheet).

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 in the Regular Army on 6 October 1981.

3.  The applicant submitted a copy of a DA Form 3180 which shows that he was found suitable for the PRP on 16 April 1982 while he was assigned to the 1st Battalion, 30th Field Artillery Regiment, Germany.

4.  The applicant submitted a copy of a DA Form 2985 which shows that he was admitted to the U.S. Army Hospital, Augsburg, Germany, on 2 May 1983 for treatment of a duodenal ulcer and discharged on 5 May 1983.

5.  The applicant submitted a copy of a Standard Form 93, dated 8 November 1983, in which he stated in item 8 (Statement of Examinees Present Health and Medications Currently Used), "I am in very good heath and at this time I'm not on any medication."

6.  The applicant submitted a copy of a Standard Form 600, dated 3 November 1983 to 9 November 1983, which shows that he denied the use of any drugs other than the occasional use of alcohol during his PRP interview.  It was noted that the applicant's medical records were missing and the cover was found torn and destroyed in downtown Augsburg, Germany.

7.  The applicant submitted copies of two Standard Forms 600, dated 11 June 1984 and September 1984, which show that he was treated for abdominal pain and that the treatment would not interfere with his PRP status.

8.  The applicant's DA Form 3180 shows that his PRP status was administratively terminated on 25 January 1985 when he was assigned to the 49th Ordnance Detachment, Fort Riley, KS.

9.  The applicant submitted a copy of a DA Form 5181-R, dated 6 February 1986, which shows that he was treated for severe abdominal pain on that date.

10.  On 5 June 1986, the applicant accepted nonjudicial punishment for wrongful use of some amount of marijuana between 23 March 1986 and 23 April 1986.  His imposed punishment was a reduction to private first class/E-3, forfeiture of $200.00 pay per month for 2 months, and 45 days of extra duty.

11.  The applicant submitted copies of two DA Forms 4700, a Standard 
Form 509, a Standard Form 513, and a DA Form 3647, dated 4 August 1986, which show he was admitted and discharged from Irwin Army Community Hospital, Fort Riley, KS, on the same date after receiving an endoscopy, being prescribed Tagamet, observation, and being diagnosed with a pre-pyloric peptic ulcer.

12.  The applicant submitted an undated Report of Mental Status Evaluation which states he had the mental capacity to understand and participate in the discharge proceedings, was mentally responsible, and met the retention requirements of chapter 3, Army Regulation 40-501.

13.  The applicant submitted several pages of what appear to be his analyses of his medical treatment by various individuals.

14.  The specific facts and circumstances surrounding the applicant's discharge processing are not available for review.  However, the evidence of record does include a properly-constituted DD Form 214 authenticated by the applicant that contains the authority and reason for the applicant's active duty discharge on 10 November 1986 in pay grade E-1.  The DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, for the good of the service in lieu of trial by court-martial with an under other than honorable conditions discharge.  The DD Form 214 he was issued confirms he completed a total of 5 years, 1 month, and 5 days of creditable active military service and had reenlisted on 20 September 1984 without a break in service.

15.  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.

16.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides the standards for medical fitness for retention and separation, including retirement, and states, in pertinent part, 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 an MEBD.  Those members who do not meet medical retention standards will be referred to a physical evaluation board (PEB) for a determination of whether they are able to perform the duties of their grade and military specialty with the medically-disqualifying condition.

17.  Army Regulation 635-40 provides, in pertinent part, 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 an MEBD.  Those members who do not meet medical retention standards will be referred to a PEB for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.

18.  Army Regulation 40-501 does not list a peptic ulcer as a cause for referral to an MEBD.

19.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of this regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant was treated for severe abdominal pain and diagnosed with a pre-pyloric peptic ulcer.  The evidence of record also shows the applicant accepted nonjudicial punishment for wrongful use of some amount of marijuana between 23 March 1986 and 23 April 1986.

2.  Army Regulation 40-501 does not list a peptic ulcer as a cause for referral to an MEBD.  There is no evidence to show he was diagnosed with a duodenal ulcer while on active duty.  


3.  There is no evidence in the applicant's record nor did the applicant submit any evidence that shows he was being considered for a medical discharge from the military.  On the contrary, the evidence of record shows that after exhaustive medical tests, examinations, and treatment he was cleared for continued service.

4.  There is no evidence to show that the applicant's medical records should have been reviewed by an MEBD.  Without an MEBD, there would have been no basis for referring him to a PEB.  Without a PEB, the applicant could not have been issued a medical discharge or retired for physical unfitness.

5.  Although the applicant's record is void of the specific facts and circumstances surrounding his discharge processing, it does contain a properly-constituted DD Form 214 which shows that the applicant was separated for the good of the service in lieu of trial by court-martial and that his service was characterized as under conditions other than honorable.

6.  There is no evidence which shows the applicant was not properly and equitably discharged in accordance with the regulations in effect at the time, that all requirements of law and regulations were not met, or that the rights of the applicant were not fully protected throughout the separation process.  Absent such evidence, regularity must be presumed in this case.

7.  In view of the above, there is no basis for granting the applicant's requested relief.

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)                                         AR20090009517



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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