IN THE CASE OF:	  

		BOARD DATE:	  12 August 2010

		DOCKET NUMBER:  AR20100007942 


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 his honorable discharge be changed to a medical discharge.  

2.  The applicant states the following:

* He was severely disabled due to combat in Iraq 
* He was released from active duty without any medical examinations
* He should have been given medical examinations and a disability discharge
* Although his body was covered with Leishmaniasis sores and he was in a very weakened condition, he was never given medical examinations before being sent home from combat 
* He was just told to go to the Department of Veterans Affairs (VA) later if any of his problems continued to bother him
* The Army and the VA had little knowledge of the seriousness of Leishmaniasis
* The VA thought he only had dermatitis, some sort of skin lesions
* He was treated in Iraq in 2008 for multiple sand fly bites during combat
* A VA medical doctor diagnosed the Leishmaniasis
	
3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), a VA Decision Review Officer Decision, a medical report from a VA physician, and an award certificate and citation for the Air Medal.

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 prior enlisted service, the applicant was appointed as a Reserve commissioned officer on 12 October 1994 in the Army National Guard.  

3.  He was ordered to active duty on 11 September 2004 in support of Operation Iraqi Freedom.  He was released from active duty on 2 December 2005 under the provisions of Army Regulation 600-8-24, paragraph 2-27 by reason of completion of required active service.  

4.  On 26 November 2007, the VA granted the applicant a 30 percent service connected disability rating for dermatitis with scars, right forearm, left lateral thigh, and left hand.  

5.  The applicant received Officer Evaluation Reports (OERs) for the periods ending 14 August 2005, 12 June 2006, and 12 June 2007, which show he performed duties as an Assistant S-3 and a Company Commander.  The senior rater rated him as best qualified for promotion potential to the next higher grade.  

6.  The applicant was discharged from the Army National Guard on 3 May 2008 and transferred to the Retired Reserve.  

7.  The medical report, dated 16 October 2008, from the VA physician shows the applicant’s diagnosis of dermatitis was changed to Leishmaniasis of his right forearm, left lateral thigh, and left hand.  The report indicated that all biopsy results were positive for Leishmaniasis.

8.  During the PDES process, the mere presence of a medical impairment does not in and of itself justify a finding of unfitness.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may be reasonably expected to perform because of office, grade, rank or rating.  Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty.  Thus the PDES relies heavily on the performance data provided by the Soldier's immediate chain of command.  

9.  Title 38, U.S. Code, sections 310 and 331, permits the VA to provide treatment and to award compensation for disabilities which were incurred in or aggravated by active military service.

10.  Division of Parasitic Diseases website states Leishmaniasis is a disease that is found in parts of the tropics, subtropics, and southern Europe.  It is caused by infection with Leishmaniasis parasites, which are spread by the bite of infected sand flies.  There are several different forms of Leishmaniasis in people.  The most common forms are cutaneous, which causes skin sores and visceral, which affects some of the internal organs of the body.  People who have cutaneous Leishmaniasis have one or more sores on their skin.  The sores can change in size and appearance over time.  They may end up looking somewhat like a volcano, with a raised edge and central crater (ulcer).  Some sores are covered by a scab.  The sores can be painless or painful.  Some people have swollen glands near the sores.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was severely disabled from combat in Iraq and was released from active duty without any medical examinations.  However, there is no evidence that indicates his military career was ended due to medical unfitness.

2.  The applicant received OERs which show he continued to perform his duties as an Assistant S-3 and Company Commander until he was discharged.  There is no evidence that he had any medical conditions that impaired his ability to serve prior to being discharged.

3.  The applicant apparently did not display any symptoms associated with Leishmaniasis or, if he did, they were so minor as not to rise to the attention of those persons responsible for referral to the PDES prior to his discharge in 2005.  It appears his symptoms presented well after he was discharged.  In any event, the applicant did not enter the PDES and did not undergo an MEB or PEB; these are mandatory steps for the disability discharge or retirement processing.



4.  The available evidence shows a VA physician diagnosed the applicant as having Leishmaniasis in October 2008.  However, the rating action by the VA does not necessarily demonstrate an error or injustice on the part of the Army.  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.

5.  The applicant has not presented sufficient evidence to show his discharge was in error or unjust.  Therefore, there is no basis to change his honorable discharge to a medical discharge.

6.  It is unfortunate the applicant is suffering from the effects of cutaneous Leishmaniasis; however, service connection has been established and he is receiving treatment from the VA.  His symptoms were mild or non-existent during his active period of service; therefore, he never entered the PDES and cannot now be medically retired or separated.

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)                                         AR20100007942



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ABCMR Record of Proceedings (cont)                                         AR20100007942



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