IN THE CASE OF:	  

		BOARD DATE:	  5 October 2010

		DOCKET NUMBER:  AR20100011330 


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 general discharge be changed to a medical discharge with the appropriate separation code and reentry (RE) code.

2.  The applicant states his discharge was based on his failure to make medical appointments and the disciplinary action that was taken by his chain of command after the fact.  He feels his discharge should have been based on the medical condition that caused him to miss the appointments and thus receive the disciplinary measures taken by his chain of command.  His medical condition is celiac disease.  This condition leads to autoimmune disorder.  According to Dr. P--- A------ C---'s medical records on him, the conditions from 8 April 2009 to
28 September 2009 all fit into problems associated with celiac disease.  Some of the symptoms are dizziness, fatigue, general ill-feeling, low grade fever, and pain in the bones, joints, and muscles.  Dr. C---'s recommendation to the Board came before he (the applicant) was diagnosed with the disease by Dr. A----- P----.  Once he came under her (Dr. P----'s) treatment and began to watch his diet, he was able to function and perform duties with little or no time lost.  Prior to his problems with this disease, he was an exceptional Soldier.  The conditions that caused him to become undesirable were all related to the effects of celiac disease on his immune system.

3.  The applicant provides a copy of the following documents:

* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 10 February 2010
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) for the period ending 10 February 2010
* A copy of his complete separation packet with allied documents including counseling statements
* DA Form 3349 (Physical Profile), dated 14 January 2010
* DA Form 3822-R (Report of Mental Status Evaluation), dated 7 December 2009
* DA Form 2828 (Report of Medical Examination), dated 28 September 2009
* DA Form 2807-1 (Report of Medical History), dated 29 September 2009
* Enlisted Record Brief (ERB), dated 8 July 2009
* A voluminous amount of civilian and military medical records, charts, reports, emergency care, consults, screens, radiology results, and other medically-related documents, dated on various dates

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Pennsylvania Army National Guard (PAARNG) on 22 May 2008.  He was assigned to Headquarters, 2nd Brigade Combat Team (BCT), Johnstown, PA.

2.  He entered active duty for training (ADT) on 31 March 2009 and he completed basic training at Fort Jackson, SC.  He was subsequently reassigned to
C Company, 305th Military Intelligence battalion, Fort Huachuca, AZ, for completion of advanced individual training in military occupational specialty (MOS) 35F (Intelligence Analyst).

3.  On 14 August 2009, he was counseled by his platoon sergeant (PSG).  The PSG remarked that the applicant had been to either sick call or the emergency room a total of 18 times since his enlistment.  Every time he went to be seen, a medical workup was performed with normal results.  Due to the number of various illnesses he had, his ability to perform in the Army was in question.

4.  His records contain several subsequent counseling statements by members of his chain of command for various infractions including failing to attend two medical appointments on 20 and 21 September 2009; failing to be at his appointed place of duty on 25 September 2009; being found asleep in his bed on 21 October 2009 after school had started; missing medical appointments; and the loss of a field jacket.  In each instance of counseling, a plan of action was recommended and the applicant concurred with the remarks entered on each counseling form.

5.  On 21 September 2009, the applicant's immediate commander requested a fitness for duty evaluation (FFDE) of the applicant.  He remarked the applicant had been to the troop medical clinic (TMC) on numerous occasions for chest pain, dizziness, and vomiting.  He also had difficulty speaking due to his stuttering.  The MOS he was in required extensive oral briefings and that although he had previously received a medical waiver for this condition, the commander requested a re-screening of all his ailments.

6.  On 22 September 2009, a military nurse reviewed the applicant's records and determined he had multiple ongoing issues since his enlistment in April 2009.  He had been to the clinic approximately 28 times for upper respiratory infection, contusion to the nose and thumb, heartburn, furuncle, pain in the fingers, ingrown toenails, gastroenteritis, bronchitis, chest pain (drinking energy drinks) (normal exam and x-rays), dizziness (normal CT of head), acne, behavioral health (referred to speech therapy), vomiting, throat infection, pneumonia (treated), and malingering.  The military nurse recommended immediate separation under the provisions of Army Regulation 635-200 (Personnel Separation – Active Duty Enlisted Administrative Separations), chapter 5-17, for multiple medical complaints.

7.  On 29 September 2009, he underwent a complete medical examination and noted his pneumonia, stuttering, malingering, acne, and chest pain; however, he was determined to be medically fit for separation.

8.  On 23 November 2009, he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for twice failing to go at the time prescribed to his appointed place of duty.

9.  On 7 December 2009, he underwent a mental status evaluation and he was determined not to have suffered from a psychiatric disease or defect, personality disorder, mental defect, or emotional illness.  He was cleared for any administrative action deemed appropriate by his chain of command.

10.  On 8 January 2010, by letter, a registered dietitian (RD) stated the applicant had been diagnosed with gluten intolerance and possible celiac disease by his provider.  He could not tolerate products containing gluten.  Most of the food at the dining facility contained gluten or had been contaminated with gluten.  The applicant had lost more than 20 pounds within a 6-month period and had only been eating one meal a day.  His diet was very monotonous and he was malnourished.  The RD recommended authorizing the applicant basic allowance for subsistence.

11.  On 14 January 2010, he was issued a permanent physical profile for gluten allergy that assigned a number "2" in the "Psychiatric" factor of his PULHES.  The profile directed him to maintain a gluten-free diet.  

12.  His immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administration Separations), chapter 14, for a pattern of misconduct.  Specifically, the immediate commander cited the applicant's failure to report to his appointed place of duty on divers occasions and his signing of a false official record.  He recommended a general under honorable conditions discharge.

13.  On 19 January 2010, he acknowledged receipt of the commander's intent to separate him.  He subsequently consulted with legal counsel and he was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He requested consideration of his case by an administrative separation board and a personal appearance before an administrative separation board.  He further elected to submit a statement in his own behalf.  In his statement, he stated that he was battling an unknown medical condition because all of his tests came back negative.  However, when he saw a different doctor, he was determined to have had gluten intolerance with possible celiac disease which was affecting his immune system.  He only got in trouble when he was really sick and as he kept getting worse, he made more mistakes.

14.  He also acknowledged that he understood that he could expect to encounter substantial prejudice in civilian life if a general discharge was issued to him.  He further acknowledged he understood that as a result of the issuance of a discharge under other than honorable conditions, he could be ineligible for many or all benefits as a veteran under both Federal and State laws.

15.  His immediate commander subsequently initiated separation action against him in accordance with Army Regulation 635-200, chapter 14, for a pattern of misconduct.

16.  His intermediate commander concurred with the recommended approval of the applicant's discharge with the issuance of a general discharge.

17.  On 2 February 2010, the separation authority approved the applicant's separation and directed issuance of a General Discharge Certificate.  Accordingly, the applicant was discharged on 10 February 2010.  The 

DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulation 635-200, chapter 14, by reason of a pattern of misconduct with a general discharge.  This form confirms he completed a total of 10 months and 10 days of net active service this period.  Item 26 (Separation Code) shows the entry "JKA" and item 27 (Reentry Code) shows the entry "4."

18.  On 2 February 2010, he was also discharged from the PAARNG by reason of acts or patterns of misconduct.  He also received a general discharge.

19.  He submitted the following documents:

	a.  A DD Form 689 (Individual Sick Slip), dated 20 September 2009, and allied documents that show he complained of severe pain on the left and right sides of the chest, shortness of breath, fatigue, coughing, aches, and chills.  He was prescribed medications and placed on quarters.  He was also restricted from conducting physical training or physical exertion.

	b.  A medical report, dated 30 January 2010, from, Dr. A----- O--- at the Sierra Vista Regional Health Center, AZ.  Dr. O--- diagnosed the applicant with pneumonia, chest pain, and mild hemoptysis.  He prescribed medications and discharged him.

	c.  A patient laboratory inquiry, dated 6 November 2009, wherein his "Gliadin IGG" was greater than 100.  In gluten-sensitive individuals anti-gliadin antibodies (AGA) testing is a routinely used blood test for possible presence of celiac disease, allergies, or idiopathic phenomena.  Individuals who have celiac disease may have values in excess of 200.  There is a common expectation that removal of gluten results in the loss of AGA; however, since gluten is the target of the antibodies, which would deplete them from the body, removal of gluten results in the benign circulation of antibodies.

	d.  A radiology report, dated 6 January 2010, that shows no findings of acute cardiopulmonary disease.

	e.  Chronological record of medical care, dated 24 November 2009, wherein he was diagnosed with abdominal pain (gluten allergy) and allergic rhinitis.  

	f.  A chronological record of medical care, dated 6 November 2009, wherein he complained of constipation and related that several members of his family have celiac disease.

20.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

21.  Army Regulation 635-200, paragraph 1-35, states when the examining medical officer decides that a member being considered for elimination for misconduct (chapter 14) does not meet the retention medical standards, he or she will refer that member to a medical board.  The medical treatment facility commander will furnish a copy of the approved board proceedings to the commander exercising general court-martial authority (GCMCA) over the member concerned.  The commander exercising general court-martial authority will direct the member to be processed through disability channels per Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) when it is determined the disability is the cause or substantial contributing cause of the misconduct or circumstances warrant disability processing instead of administrative processing.

22.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (PDES) and 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.  It provides for medical evaluation boards (MEBs), which 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 qualifications for retention based on the criteria in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a physical evaluation board (PEB).

23.  Army Regulation 635-40, paragraph 3-1, provides that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member 

reasonably may be expected to perform because of his or her office, rank, grade, or rating.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.

24.  Army Regulation 635-40, paragraph 4-3, states an enlisted member may not be referred for physical disability processing when action has been started that may result in an administrative separation with a characterization of service of under other than honorable conditions.  If the case comes within these limitations, the commander exercising general court-martial jurisdiction over the Soldier may abate the administrative separation.  A case file could be referred to a PEB if the GCMCA finds the disability is the cause, or a substantial contributing cause, of the misconduct that might result in a discharge under other than honorable conditions or other circumstances warrant disability processing instead of alternate administrative separation.

25.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the Veteran's Affairs Schedule for Rating Disabilities (VASRD).  

26.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30%.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20% of service and a disability rating at less than 30%.

27.  Department of Defense Instruction (DODI) 1332.38 implements policy, assigns responsibilities, and prescribes procedures under References (a) and (b) for retiring or separating Service members because of physical disability, making administrative determinations for members with service-incurred or service-aggravated conditions; and authorizing a fitness determination for members of the Ready Reserve.

28.  DODI 1332.38, section E3.P3.4, states that determining whether a member can reasonably perform his or her duties includes consideration of:

	a.  Common Military Tasks:  Duties, for example, whether the member is routinely required to fire his or her weapon, perform field duty, or to wear load bearing equipment or protective gear.

	b.  Physical Fitness Test:  Whether the member is medically prohibited from taking the respective Service's required physical fitness test. 

	c.  Deployability:  When a member’s office, grade, rank or rating requires deployability, whether a member’s medical condition(s) prevents positioning the member individually or as part of a unit with or without prior notification to a location outside the continental United States. 

	d.  Special Qualifications:  For members whose medical condition causes loss of qualification for specialized duties, whether the specialized duties comprise the member's current duty assignment, or the member has an alternate branch or specialty, or whether reclassification or reassignment is feasible.

DISCUSSION AND CONCLUSIONS:

1.  The applicant committed a series of offenses in that he failed to show up for two medical appointments, failed to be at the time prescribed to his appointed place of duty, found asleep after school had started, missed other appointments, and lost military equipment.  In each instance he was counseled and a plan of action was recommended.  The applicant concurred with the remarks entered on each counseling form.

2.  Having failed to respond to counseling, his chain of command initiated separation action against him under the provisions of Army Regulation 635-200, chapter 14, for a pattern of misconduct.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

3.  His records show he was seen for multiple medical complaints amounting to nearly one clinic visit per week for routine complaints, such as a nose bruise, thumb bruise, and heart pain.  On one particular visit he was diagnosed with malingering.  In September 2009, he began having episodes of chest pain and he was eventually diagnosed with pneumonia.  He previously had no complaints other than an episode of gastroenteritis and an episode of vomiting when he was intoxicated.

4.  He contends that gluten sensitivity was the cause of his problems and that it was the cause of his missing appointments and ultimate discharge for misconduct.  However, during the time of misconduct, his complaint was chest pain.  He was diagnosed with pneumonia and treated for short time in the hospital.  He requested to be transferred to a hospital closer to home but his 

request was denied.  He later gave a false statement to his commander stating that his civilian doctor said his symptoms would improve if he were transferred to a lower altitude.  

5.  He revealed on 6 November 2009 at a clinic appointment that his mother and sister had gluten sensitive enteropathies and/or celiac disease.  Gluten sensitivity is usually an inherited disorder.  Although he was well aware of the symptoms of gluten sensitivity and his mother and sister were affected by this genetically-related condition, he did not report gastro-intestinal symptoms before, during, or after his misconduct.  Nevertheless, regardless of whether he was aware of his gluten sensitivity or not, this condition is controllable and does not, in and of itself, fail either accession or retention standards.  

6.  There is insufficient evidence in his records that shows he was physically unfit at the time of his discharge.  A Soldier is considered unfit when the evidence establishes that the Soldier is unable to reasonably perform the duties of his or her office, grade, rank, or rating.  The available evidence shows he was fully able to perform the duties of his grade and fully qualified for separation. 

7.  The nature of his misconduct (missing appointments, losing equipment, failing to report to his place of duty) had no relation to any medical conditions he now claims (gluten allergy) and he presented no compelling evidence that other circumstances warranted disability processing in lieu of administrative separation.

8.  He has failed to show through the evidence submitted or the evidence of record that he was medically/physically unfit at the time of separation and he should have been processed for separation due to physical disability.

9.  In view of the foregoing, 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)                                         AR20100011330



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ABCMR Record of Proceedings (cont)                                         AR20100011330



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