BOARD DATE:	  22 January 2013

		DOCKET NUMBER:  AR20120002987 


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 immediate reenlistment or forced reenlistment.  

2.  The applicant states discrimination based on the reason for his original discharge is the reason he is being denied reenlistment.  He claims he completed a physical examination at the Saint Louis, MO, Military Entrance Processing Station (MEPS) and passed everything.  He claims during his interview with the MEPS doctor, after seeing the reason he was discharged, the doctor commented that the applicant would have a hard time getting back in.  The applicant claims the doctor's attitude changed and he became rude and refused to look at anything without bias.  He claims he had a consultation during which he was cleared and he has been cleared by other doctors.  He states that when the waiver request went to the National Guard Bureau (NGB), he was denied based on history instead of being evaluated on his current state.  

3.  The applicant provides the supporting documents identified in the Supporting Document Information section of his application 

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.  On 8 March 2004, the applicant enlisted in the Regular Army.  He was trained in and awarded military occupational specialty (MOS) 13M (Multiple Launch Rocket System Crewmember).

3.  On  22 March 2007, the applicant was honorably discharged under the provisions of paragraph 15-3b, Army Regulation 635-200 (Personnel Separations), by reason of homosexual conduct (admission).  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time shows he held the rank of specialist and had completed 2 years, 11 months, and 15 days of active military service. 

4.  On 18 January 2012, the Army Discharge Review Board (ADRB), after careful examination of the applicant's record of service, voted to change the authority and reason for the applicant's discharge to "chapter 5, Army Regulation 635-200, Secretarial Authority."  

5.  In connection with the processing of this case, an advisory opinion was obtained from the Acting Chief Personnel Policy Division, NGB.  This official states after review of the applicant's case file, in consultation with the NGB Office of the Chief Surgeon and supporting documents, he determined a waiver request was submitted by the applicant and was subsequently denied due to a history of anxiety disorder, panic disorder, eating disorder, and chronic knee pain.  As a result, his enlistment in the Missouri Army National Guard (MOARNG) was denied based on his medical history and not as a result of his being discharged for his admission of homosexual conduct.  

6.  The NGB official further states the applicant suggests that any reference to anxiety/panic disorder, eating disorder in his medical records is questionable due to the psychiatrist who made the diagnosis being convicted of “possession of a controlled substance…” as well as having his license suspended as of 
19 February 2008.  The offense the doctor was found guilty of occurred on
16 December 2007, several months after the applicant was discharged from active duty, which could possibly warrant concerns regarding the doctor's capability of making a sound diagnosis; however, the NGB Chief Surgeon's office confirms the applicant was afforded a full psychiatric consultation which indicates the decision to deny the applicant's waiver request was based on the examination conducted by the NGB and not solely on the evaluation of the aforementioned doctor.  He finally indicates the reason for the applicant's initial discharge had no impact on the denial of his waiver to enlist in the MOARNG and that his denial was the result of his not passing the physical based upon his answers and the medications listed on the psychological evaluation.  He confirms the NGB denied the applicant's enlistment waiver request and confirms the applicant is not currently medically qualified to enter the MOARNG.  

7.  On 21 December 2012, the applicant responded to the NGB advisory opinion.  He indicated that he disagreed with the recommendation from the NGB and cited the following reasons:

	a.   The advisory opinion leads one to believe he was examined by NGB personnel; however, he has never been examined or evaluated by NGB personnel either at the St. Louis MEPS or anywhere else; 

	b.  when he was sent for a psychological consult by the St. Louis MEPS, the Chief Medical Officer put in the reason for the request that his anxiety problem was questionable and the consulting physician gave no diagnosis and a prognosis of excellent; 

	c.  policy requires when conducting requests for reentry, the fact the basis for separation was homosexual conduct will not be considered a detriment and the examining physician at the MEPS did not comply with this policy;

	d.  a consultation he had scheduled on 12 August 2012 to clear up any problems with his knee was cancelled by the MEPS with no explanation; and 

	e.  he scored 239, 59 points above the minimum passing standard, on an Army Physical Fitness Test (APFT) he took at his local recruiting command which should show he is capable of performing the physical aspects of rigorous Army duties.  

8.  Medical documents submitted by the applicant show he was treated at the Department of Veterans Affairs (VA) Medical Center, Poplar Bluff, Missouri on
3 March 2003 for an initial psychology session after stating he had anxiety issues.  The resulting diagnosis was Axis 1 Clinical Disorder, Anxiety Disorder.  It also shows he was seen for a psychiatric evaluation by a different doctor at the same facility on 4 October 2007.  The examining psychiatrist diagnosed Axis 1 Panic Disorder without agoraphobia.  It also shows the MEPS examining official determined a physical examination was not justified based on the applicant's medical history and the applicant was referred for a consult.  The consulting physician indicates the applicant denied any symptoms of abnormal anxiety and was concerned for his future but not anything abnormal.  He provided no diagnosis and indicated his prognosis was excellent.  

9.  Army Regulation 601-210 (Active and Reserve Components Enlistment
Program) prescribes eligibility criteria governing the enlistment of persons with or without prior service (PS) into the Regular Army, Army Reserve and Army National Guard.  Chapter 3 contains eligibility guidance for PS applicants.  It states, in pertinent part, that the applicant must meet medical retention standards of Army Regulation 40-501 (Standards of Medical Fitness).  

10.  Army Regulation 40-501 governs medical fitness standards for enlistment, induction, and appointment, including officer procurement programs.

11.  Chapter 2, Army Regulation 40-501. outlines the physical standards for enlistment, appointment, and induction.  Paragraph 2-17 contains disqualifying learning, psychiatric, and behavioral disorders.  It states, in part, that a current or history of anxiety disorders (anxiety, panic, agoraphobia, social phobia, and posttraumatic) does not meet the standard.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that he be enlisted in the ARNG because his denial was the result of the original reason for his discharge (homosexual conduct admission) and the supporting documents he submitted have been carefully considered.  However, there is insufficient evidence to support his claim.  

2.  By regulation, a current or history of anxiety disorder does not meet physical standards for enlistment, appointment, and induction.  The evidence of record confirms the applicant had a history of anxiety disorder, dating back to 2003, which had been diagnosed and treated by more than one physician while he was serving on active duty in the Regular Army.  It further shows that the examining MEPS physician determined he did not meet medical procurement standards based on his history of anxiety disorder and knee problems.  These medical findings and the applicant's entire medical history, as provided by him, was evaluated by the NGB, Chief Surgeon's office and formed the basis for the denial of the applicant's request for a medical waiver for enlistment.  

3.  There is no evidence of record or independent evidence submitted by the applicant that supports his assertion that bias on the part of the MEPS examining physician based on the original reason for his discharge was the reason his enlistment in the MOARNG was denied.  Absent any evidence of bias on the part of the medical personnel who participated in the MEPS physical examination and NGB waiver process, there is an insufficient evidentiary basis to support granting the 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)                                         AR20120002987



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ABCMR Record of Proceedings (cont)                                         AR20120002987



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