IN THE CASE OF:	  

		BOARD DATE:	  2 June 2011

		DOCKET NUMBER:  AR20100028381 


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 reconsideration of his previous request for a physical disability discharge or retirement to include entitlement to incapacitation pay.

2.  The applicant states his medical condition was not properly evaluated and reported to higher authorities as required for personnel in his security position.  He had medical problems that should have required referral to a Medical Evaluation Board (MEB).  He believes his medical condition should have prevented him from reenlisting and warranted a physical disability separation or retirement.  He claims that his due process was violated and he was denied a proper consideration for medical separation processing.  He also contends that he is entitled to incapacitation pay.  

3.  The applicant provides over 45 pages of self-authored statements and arguments.  He also provides:

	a.  three packets of service medical records, two for his first enlistment totaling 43 pages and a 37 page packet for his second enlistment;  

	b.  a packet of post-service medical records including records from the Pennsylvania Department of Corrections, private physicians, and the Department of Veterans Affairs (VA); 

	c.  an 8 March 2009 medical examination with 62 pages of VA treatment records; 
	d.  a 1984 article titled "Frequency of Illness Associated with Epidemic Hepatitis A Virus Infections In Adults";  

	e.  his DA Form 2-1 (Personnel Qualification Record-Part II);

	f.  a DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice);

	g.  his DD Form 214 (Certificate of Release or Discharge from Active Duty), 

	h  three court of appeals decisional documents; and 

	i.  portions of Army Regulation 40-501 (Standards of Medical Fitness).

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090009517, on 4 February 2010.

2.  A significant portion of the medical documents the applicant provided were available to the previous Board when his request for a disability discharge was reviewed; however, the court cases, his request for retirement, and incapacitation pay are considered new evidence and new issues that require reconsideration.

3.  Incapacitation pay is afforded to Army National Guard and Army Reservists who are injured while performing military duties and as a result of the injury were unable to perform their regular civilian jobs.  Since the applicant was Regular Army not a Reservist he is not entitled to incapacitation pay, thereby making this issue moot.  It will not be further addressed in this Record of Proceedings.

4.  The applicant served on active duty in the Regular Army from 6 October 1981 through 10 November 1986.  He was discharged under Army Regulation        635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  

5.  The applicant's prior request for a disability discharge was denied because the available medical evidence did not show he was medically unfit or warranted referral to an MEB.

6.  The available service records show that between May 1983 and the date of the applicant's discharge he was treated for a duodenal ulcer, sore throat, right knee injury, a puncture wound to his chest, a fungal infection, an abscess on his buttock, abdominal cramps, a bump on his eyelid, back pain, and a rash on his face.  His records show that on several occasions his medical conditions were evaluated in accordance with regulations in effect for personnel serving in a security sensitive position and determined not to have a negative impact on his position. 

7.  The circumstances surrounding the three court cases differ significantly    from the applicant's situation.  In all three cases those individuals had well- documented medical histories and records, they were processed by MEBs, and there was no evidence of disciplinary action or misconduct. 

8.  At the time of the applicant's separation processing he would have been advised of the effects of a discharge under the provisions of chapter 10, Army Regulation 635-200, and that he might be deprived of many or all Army and VA benefits.  

9.  The applicant's VA medical recodes show he is being treated for a peptic ulcer, chronic gastritis, and post-traumatic stress disorder.  All of the VA medical records are dated over the period of the last 20 years after he was discharged. They show his current medical condition, they do not document or relate to his medical condition at the time of his discharge in 1986. 

10.  The additional medical records the applicant provided show has suffered from and he has been treated for abdominal pain and ulcers since his release from active duty on a periodic basis.

11.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) provides the following:

	a.  Soldiers who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.

   b.  Soldiers who committed an offense or offenses, the punishment for which under the UCMJ includes a bad conduct or dishonorable discharge, may submit a request for discharge in lieu of trial by court-martial.

	c.  A medical examination is not required for Soldiers being separated under chapter 10, but may be requested by the Soldier under Army Regulation 40-501. 

	d.  Paragraph 1-33 (Disposition through medical channels) states except (emphasis added) in separation actions under chapter 10 disposition through medical channels takes precedence over administrative separation processing. 
12.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating when the disability was incurred while entitled to basic pay.

13.  Army Regulation 40-501 (Standards of Medical Fitness) provides in:

	a.  paragraph 3-3a that performance of duty despite an impairment would be considered presumptive evidence of physical fitness; and 

	b.  paragraph 3-3b(1) for an individual to be found unfit by reason of physical disability they must be unable to perform the duties of their office, grade, rank or rating.  

14.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), provides in:

	a.  paragraph 3-1 the mere presence of an 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; 

	b.  paragraph 3-2b(1) disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability was incurred or aggravated in service; and

	c.  paragraph 3-2b(2) when a member is being separated by reason other than physical disability his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that an acute grave illness or injury or other deterioration of physical condition occurred immediately prior to or coincident with separation rendered the member unfit.

15.  Army Regulation 15–185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  Paragraph 2-9 states 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 states he had medical problems that were not properly evaluated, and he should have been referred to an MEB.  His medical conditions should have prevented him from reenlisting and warranted a physical disability separation or retirement.  He claims that his due process was violated and he was denied proper consideration for medical separation processing.  His medical condition was not properly reported to higher authorities as required for personnel in his security position.  

2.  In the court cases the applicant provided none of the individuals were facing disciplinary action for misconduct as the applicant was.  Therefore, these cases have no direct bearing on the applicant's case and will not be further addressed.

3.  The applicant has not provided any evidence and the available records do not contain any evidence that shows his due process was violated as it relates to the handling of his medical conditions while on active duty.  Additionally, the available evidence does not show he had medical conditions that were of such a nature that they should have prevented him from qualifying for reenlistment. 

4.  The applicant has not provided and the record does not show that he was physically unfit to perform the duties of his office, rank, grade or rating, that his service was irrupted due to a medical condition, or that he was denied due process in the reporting of his medical conditions while he was in an active duty status.

5.  The mere presence of an impairment does not of itself, justify a finding of unfitness because of physical disability.  Therefore, the applicant has not shown he was entitled to a physical disability separation or retirement. 

6.  While the applicant did have a medical condition that potentially could have led to an MEB, his discharge was not the result of his inability to serve due to this medical condition.  The applicant elected to be discharged in lieu of facing a trial by court-martial due to his own willful misconduct.  Discharges under chapter 10, Army Regulation 635-200 take precedence over medical separation processing and the applicant has not shown that his physical conditions were the cause of his misconduct. 

7.  The regulations governing the Board’s operation require that the discharge process be presumed to have been in accordance with applicable law and regulations unless the applicant can provide evidence to overcome that presumption.  The applicant has failed to provide convincing evidence to overcome this presumption.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ____X____  ___X_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  In regard to his request for a disability discharge, 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 to amend the decision of the ABCMR set forth in Docket Number Docket Number AR20090009517, on 4 February 2010.

2.  The available evidence is also insufficient to correct his record to show that he was discharged due to retirement.



      _______ _   _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)                                         AR20100028381



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ABCMR Record of Proceedings (cont)                                         AR20100028381



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