IN THE CASE OF:	  

		BOARD DATE:	  2 August 2011

		DOCKET NUMBER:  AR20100030309 


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, that the records of her deceased father, a former service member (FSM), be corrected to upgrade his discharge to honorable and to show he retired with 23 years of service. 

2.  The applicant states the FSM had served over 23 years and had submitted his retirement paperwork when, during his retirement physical, it was discovered he had hepatitis C.  He was retained on active duty for medical treatment and never properly released.  The FSM was not (or should not have been) discharged under other than honorable conditions (UOTHC) and should be shown to have retired with 23 years of service.

3.  The applicant provides copies of his Noncommissioned Officer Evaluation Reports (NCOERs), 85 pages of medical records, and 2 DA Forms 4187 (Personnel Action).

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 FSM enlisted in the Regular Army (RA) on 23 October 1979.  The last available enlistment document shows he reenlisted for 6 years (as a sergeant first class (SFC) with a date of rank 1 April 1990) on 1 March 1995.  He is shown to have served in Germany from 1980 through 1982 and in Southwest Asia from 1994 through 1996.  The FSM was a member of The Old Guard ceremonial unit at Fort Myer, Virginia from 1996 through 2002.

3.  The applicant's integrated Personnel Electronic Record Management System (iPERMS) records are incomplete and contain no documentation after 13 February 2002, the date his last NCOER was signed by his rating officials (he did not sign it).  The available hospital records were provided by the applicant with the assistance of her Senator.

4.  In February 2001, during his retirement physical at Walter Reed Army Medical Center (WRAMC), the FSM was diagnosed with high blood pressure and chronic hepatitis C.  

5.  An online medical article related to hepatitis C, published in 2000 by the Department of Veterans Affairs, provides the following:

Hepatitis C is an infectious disease affecting the liver, caused by the hepatitis C virus (HCV).  The infection is often asymptomatic, but once established, chronic infection can progress to scarring of the liver (fibrosis), and advanced scarring (cirrhosis), which is generally apparent after many years.  In some cases, those with cirrhosis will go on to develop liver failure or other complications of cirrhosis, including liver cancer or life-threatening esophageal varices and gastric varices.

Hepatitis C infects between 4 and 5 million Americans (about 1.8 percent of the population).  It is a disease that was virtually unknown before the virus was isolated in 1989, and truly effective screening tests became available in 1992.  Since then, it has emerged as a major public health concern.

HCV is often a hidden disease.  After infection, it may develop over 10 to 30 years, usually without symptoms, until it surfaces as chronic active hepatitis.  Only 5 percent of those currently infected with HCV are aware that they have the disease, and fewer than 2 percent have ever been treated.  Veterans 

appear to have unusually high rates of HCV.  While the prevalence of HCV in the population as a whole is 1.8 percent, various special studies of veterans in VA facilities have shown rates of HCV infection between 10 and 20 percent.

There are a number of likely risk factors related to the transmission of HCV for veterans including service in the Asian Theater.  Southeast Asia has high rates of HCV infection.  Currently, between 5 and 8 percent of the population is infected with HCV. 

6.  On 22 May 2001, the FSM's attending physician requested that the FSM be extended on active duty for medical treatment.  The doctor stated the FSM had submitted his retirement paperwork and was scheduled to retire on 28 May 2001. It was requested that he be extended through 28 April 2002 and should he not respond to treatment he would be processed by a medical board.  The available records contain no evidence of any administrative actions extending the applicant on active duty beyond his established retirement date.

7.  The available hospital medical records cover the FSM's treatment at WRAMC from February 2001 through March 2004.  The records included principally the hospital treatment records related to the FSM's participation in a medication study utilizing Interferon for HCV treatment.  The medication test program was to run for 48 weeks with a 24-week follow-up.

8.  A 27 September 2001 treatment note shows he was hospitalized for three days due to medication (Interferon) induced delirium.  His symptoms included depression, visual and auditory hallucinations, and flu-like symptoms.  The FSM was shown to have indications of cirrhosis of the liver and he was removed from the medication test program at this time.  

9.  A DA Form 4187, dated 2 October 2001, reports the FSM's duty status was changed from Hospital to Absent Without Leave (AWOL) effective 0600 hours, 2 October 2001.

10.  On 22 November 2001, the FSM was hospitalized at WRAMC for blood pressure management, depression, and suicidal ideation.  It was also noted that the applicant was "self-medicating" himself with alcohol.  The precipitating reasons (Axis IV) listed for his admission were medical problems, a recent move, and retirement.  Associated with this hospitalization is a medical treatment record from the liver clinic dated 27 November 2001.  It shows significant scarring of the FSM's liver from the long-standing hepatitis C.

11.  A DA Form 4187, dated 27 November 2001, reports the FSM's duty status was changed from Dropped from Roster to Present for Duty effective 27 November 2001.

12.  The FSM's NCOER's from 1991 forward (with the exception of the last one) all recommended the FSM be promoted to master sergeant now and that he be given increased responsibility and duties.  

13.  The FSM's NCOER for the period January 2001 through December 2001 (signed by his rating officials on 13 February 2002) indicates he had been AWOL several times during the rating period and was in an AWOL status at the time the NCOER was completed.

14.  The FSM was hospitalized at WRAMC on 3 January 2004 for Interferon induced depression and alcohol dependency problems.  His patient category was shown at one spot as civilian although it was also indicated that the available records showed him as on active duty.  The history section of the admission note states the FSM learned of his medical condition three months before his retirement in May 2001.  He had been drinking to excess since that time.  The "Impression" section notes the FSM had been AWOL from his duty station since September 2001.  The FSM was discharged from the hospital on 15 January 2004 and referred to the Naval Medical Center Portsmouth Substance Abuse Rehabilitation Program.

15.  An undated Naval Medical Center, Portsmouth, Substance Abuse Rehabilitation Program admission form shows the FSM was admitted to the level III - Residential Alcohol Rehabilitation Program, as an active Army SFC (E-7).  No further documentation of this admission is of record. 

16.  His records show the FSM was awarded the Meritorious Service Medal (for a period ending 28 February 2000), two Army Commendation Medals, four Army Achievement Medals, six Good Conduct Medals, a National Defense Service Medal, an Army Service Ribbon, NCO Professional Development Ribbon with Numeral 3, two Overseas Service Ribbons (Korea and Germany), Expert Infantryman Badge, and the Expert Marksmanship Qualification Badge with Rifle Bar.

17.  Other than the information provided by the Defense Finance and Accounting Service (DFAS) showing separation under Army Regulation 635-200, chapter 10 on 31 December 2005; the record does not contain any documentation related to the FSM's return to military control in 2005, his chapter 10 separation processing, or a DD Form 214 (Certificate of Release or Discharge from Active Duty).  There is also no documentation of any counseling, nonjudicial punishments, or courts-martial.

18.  A DFAS review of the FSM's pay records provides the following:  

* AWOL	20001128	1 day
* AWOL 	20010919 through 20010924	6 days
* AWOL 	20011002 through 20011126	56 days
* AWOL 	20011204 through 20051231   	4 years, 11 months, 27 days
* UOTHC discharge from Fort Belvoir, Virginia, with a separation program designator (SPD) code of KFS 
* DFAS does not have a copy of the DD Form 214  

19.  The FSM passed away on 28 October 2007 from complications of cirrhosis of the liver and hepatitis C.

20.  The Integrated Web-based Services (IWS) portion of the FSM's iPERMS provides the following notes:

	a.  on 18 December 2003 the FSM's records were transferred to the "Pub Center Pallet-2169, box 10";

	b.  on 6 March 2008, the applicant requested a copy of the FSM's DD Form 214 because Arlington Cemetery advised her that their records indicated the FSM was still listed as being in an active status; and

	c.  on 18 April 2008, Fort Myer Casualty Office requested a copy of the FSM's DD Form 214, which is not in iPERMS.  The Casualty Office stated that the records indicate the FSM was still in an active status.

21.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It states, in pertinent part, that the SPD code of KFS is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 10, for the good of the service in lieu of trial by court-martial.  

22.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that 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 at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The service member would have had to have been charged with the commission of an offense punishable under the Uniform Code of Military Justice with a punitive discharge.  The service member is required to consult with defense counsel and to voluntarily, and in writing, request separation from the Army in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.  

23.  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.  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 the FSM had served over 23 years and had submitted his retirement paperwork when, during his retirement physical, it was discovered he had hepatitis C.  He was retained on active duty for medical treatment.  The FSM was not (or should not have been) discharged with a UOTHC discharge and should be shown to have retired with 23 years of service.

2.  Absent evidence to the contrary, the discharge process must normally be presumed to have been in accordance with applicable law and regulations and the FSM's service appropriately characterized.  In this case, the presumption of regularity applies to the FSM's chapter 10 discharge.  However, even though there is no evidence the chapter 10 discharge was erroneous, relief may be appropriate based on equity. 

3.  The FSM had been on a solid career track as documented by his personal awards, including the Meritorious Service Medal awarded in February 2000, his NCOER's, and his service with The Old Guard.  

4.  The FSM was retirement eligible based on longevity as of 22 October 1999.  The record indicates he had requested retirement in early 2001 and was to have been retired effective 28 May 2001 with 21 plus years of honorable active service.

5.  Prior to his retirement date it was discovered he had chronic hepatitis C.  He appears to have been voluntarily extended on active duty in order to participate in an experimental drug test using Interferon.

6.  In the processing of the extension on active duty, the attending physician stated that if the drug trial did not eradicate the HCV, the FSM would be referred to a Medical Evaluation Board.

7.  The WRAMC hospital records show that during the experimental drug treatment period, the FSM developed severe psychiatric problems including delirium, depression, and suicidal ideations (with at least one verified suicidal attempt).  He started drinking heavily and going AWOL.  He was removed from the test program in September 2001.  His psychiatric state was clearly shown to be disturbed.

8.  Because the FSM's available official records are incomplete, it is impossible to determine who had administrative control and responsibility for this Soldier from the time he entered the drug trial until his discharge.  

9.  The only available evidence of the FSM's discharge comes from information provided by DFAS.  Based on the DFAS information the FSM was AWOL basically from 2 October 2001 through 31 December 2005.  This includes the days leading up to his discharge which would be improper as the FSM would have had to have been under military control to request discharge under Army Regulation 635-200, chapter 10.  It also includes the period of time he was under military control when he was re-hospitalized at WRAMC in January 2004.  This information is partially erroneous because he could not have been AWOL on the day he [allegedly] made the chapter 10 discharge request.  Furthermore, he would not have been AWOL while hospitalized at WRAMC.

10.  There is no evidence of alcohol abuse until after his participation in the experimental drug program.  The FSM's 2004 WRAMC hospitalization record documents that he continued to suffer from depression and suicidal ideation in addition to the significant alcohol related problems. 

11.  It appears that at the time the FSM was removed from the medication test program he was suffering from a significantly altered mental status that rendered him incapable of reasonable and clear thinking.  His attempt to assist the Army by participating in the medication test program actually worsened his overall mental and physical health.  In less than a year the FSM went from a motivated, valued, and dedicated Soldier worthy of a Meritorious Service Medal to a broken, suicidal man with severe alcohol problems.

12.  The FSM was enrolled and disenrolled in a medication study and there is no apparent reason for a person of sound mind in his situation to have gone AWOL. Based on the medication-induced mental and medical problems, the FSM should have been referred to a medical board or at a minimum his request for retirement based on longevity should have been acted upon. 

13.  There are questions as to whether or not the FSM was mentally competent to act in his own best interest.

14.  Without a medical evaluation it is impossible to determine with any certainty if the FSM would have been found medically unfit or not.  However, as a matter of equity in recognition of his years of honorable service, it would be appropriate to show that the FSM applied for retirement, based on longevity, and was honorably retired effective 30 September 2001 with placement on the retired list effective 1 October 2001.

15.  A DD Form 214 should be prepared reflecting the above corrections and included in his official file. 

16.  With the corrections noted above, the FSM's estate is entitled to receipt of the FSM's retirement pay from 1 October 2001 through the date of his death.  The applicant should contact DFAS to provide the necessary information for processing the retroactive entitlement.  Information has been received that he was divorced at that time (30 September 2001) and it appears he had no eligible Survivor Benefit Plan beneficiary.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__X_____  ____X___  ____X__  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  showing the FSM served on active duty from 23 October 1979 through     30 September 2001;
	b.  he was honorably retired based on longevity on 30 September 2001 with   7 days of lost time, and with no eligible Survivor Benefit Plan beneficiary; and 

	c.  he was placed on the Retired List with full benefits and entitlements effective 1 October 2001.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application in excess of the above corrections.  



      _________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)                                         AR20100030309





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ABCMR Record of Proceedings (cont)                                         AR20100030309



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