BOARD DATE:	  22 October 2013

		DOCKET NUMBER:  AR20130003652 


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 immediate reinstatement or forced reenlistment.

2.  The applicant states:

	a.  His case should be given special consideration due to apocryphal information that was placed in the decision to deny his return to service.

	b.  The decision of the Board states he was treated at a Department of Veterans Affairs (VA) facility prior to him even joining the military.  It is implausible for him to have been treated/diagnosed at a VA clinic without having military service.  	He does not understand how any evidence could exist showing he had a history of anxiety disorder dating back to 2003, when he did not join the Army until April 2004.

	c.  The 3-years statute of limitations started once the Don't Ask Don't Tell policy was terminated.  He was within the 3-year statute of limitations after his discharge was changed.

	d.  The Army Regulation 40-501 (Standards of Medical Fitness) chapter that was quoted by the Board was an incorrect paragraph.  Army Regulation 40-501, chapter 2, paragraph 2-17 deals with the neck.  Army Regulation 40-501, dated 14 December 2007 with the Rapid Action Revision dated 4 August 2011 (the most current version), paragraph 2-17 does not contain anything about the disqualifications of learning, psychiatric, and behavioral disorders.  It does not contain anything stating that a current or history of anxiety disorders (anxiety, panic, agoraphobia, social phobia, and post-traumatic) does not meet medical fitness standard.

	e.  Department of Defense Instruction (DODI) 6130.30 (i.e., 6130.03, Medical Standards for Appointment, Enlistment, or Induction in the Military Services)) shows he was within the regulation of enlistment, and he was cleared from the consultation that he was sent on by the chief medical officer.  The DODI states that an anxiety diagnosis is a disqualification unless he meets the four criteria, which he does.  The DODI 6130.30 talks about what is considered a disqualification and according to the DODI there should not be any reason why his request to be reinstated should be denied based on failing the mental/physical aspect of the Army Standards of Medical Fitness.

	f.  He originally applied on 10 September 2010 to have his discharge changed to where he could reenlist without regard to his previous discharge.  The Board took no action and he was instructed to reapply once the policy became moot.  He applied once again when the policy was changed by the President on 22 July 2011 and before the 60-day waiting period was over.  Once his discharge was changed he was denied entry into the service and he immediately applied to be reinstated.

	g.  The psychiatric consultation he received stated that he did not have a diagnosis and that he had an excellent prognosis based on the evaluation that was performed.  According to the psychiatrist, he has no psychiatric condition which would limit him from military service.

	h.  It is with extreme disgust that the Board's decision states he failed the psychological evaluation.

	i.  He would like to see the medical evidence that is purported to have been used to deny his reinstatement.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Self-authored letters to the Army Board for Correction of Military Records, dated 13 November 2012 and 4 February 2013
* Army Regulation 40-501, page 11, dated 14 December 2007
* DODI 6130.03, page 48, dated 28 April 2010


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 AR20120002987, on 22 January 2013.

2.  The applicant provides new arguments (stated above), which relate to what he believes to be incorrect information cited in the previous decision made in his case.  This includes information contained in Army Regulation 40-501, in an advisory opinion obtained from the National Guard Bureau (NGB), in his Army Military Human Resource Record, and in medical documents he submitted.

3.  The applicant was honorably discharged from the Army on 22 March 2007, under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 15-3b, due to homosexual conduct (admission).  He had completed 2 years, 11 months, and 15 days of net active service.

4.  On 18 June 2012, the Army Discharge Review Board (ADRB) approved the applicant's request for a change to his reason for separation.  His narrative reason was changed "Secretarial Authority," his separation authority was changed to chapter 5-3, his separation program designator was changed to "JFF" and his reentry eligibility (RE) code was changed to "1."

5.  On 4 December 2011, the applicant's request for a waiver to enlist in the Army National Guard (ARNG) was disapproved by the Chief Surgeon, ARNG, due to history of anxiety disorder, panic disorder, eating disorder, and chronic knee pain.

6.  On 22 January 2013, this Board denied the applicant's request for immediate reinstatement or forced reenlistment.  In the Record of Proceedings the incorrect paragraph in chapter 2 of Army Regulation 40-501 was cited (paragraph 2-17); the incorrect date of his treatment at the VA medical center was cited (3 March 2003 vice 3 March 2010); and the Statute of Limitations (3 years) was erroneously imposed against the applicant.

7.  DODI 6130.03 outlines the medical standards for appointment, enlistment, or induction in the military services.  Paragraph 29 discusses disqualifying learning, psychiatric, and behavioral disorders.  Paragraph 29p states a history of anxiety disorders, anxiety disorder not otherwise specified, panic disorder, agoraphobia, social phobia, simple phobias, and other acute reactions to stress are disqualifying unless: 

	a.  The applicant did not require any treatment in an inpatient or residential facility. 

	b.  Outpatient care was not required for longer than 12 months (cumulative) by a physician or other mental health professional. 

	c.  The applicant has not required treatment (including medication) for the past 24 continuous months. 

	d.  The applicant has been stable without loss of time from normal pursuits for repeated periods even if of brief duration; and without symptoms or behavior of a repeated nature that impaired social, school, or work efficiency for the past 24 continuous months.

8.  DODI 6130.03, paragraph 4 outlines DoD Policy.  It states it is DOD policy to ensure that individuals under consideration for appointment, enlistment, or induction into the military services are:

	a.  Free of contagious diseases that probably will endanger the health of other personnel. 

	b.  Free of medical conditions or physical defects that may require excessive time lost from duty for necessary treatment or hospitalization, or probably will result in separation from the Service for medical unfitness.

	c.  Medically capable of satisfactorily completing required training.

	d.  Medically adaptable to the military environment without the necessity of geographical area limitations.

	e.  Medically capable of performing duties without aggravation of existing physical defects or medical conditions.

9.  Army Regulation 40-501 outlines the physical standards for enlistment, appointment and induction.  Paragraph 2-27 discusses disqualifying learning, psychiatric, and behavioral disorders.  Paragraph 2-27k states that a current or history of anxiety disorders or panic, agoraphobia, social phobia, simple phobias, obsessive-compulsive, or other acute reactions to stress, and post-traumatic stress disorder do not meet the standard.

10.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army, U.S. Army Reserve, and Army National Guard.  Chapter 3 prescribes basic eligibility for prior-service applicants.  It states that the applicant must meet medical retention standards of Army Regulation       40-501.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.  His supporting evidence has been considered.

2.  The fact that the incorrect paragraph in Army Regulation 40-501 was cited; the incorrect date of his treatment at the VA medical center was cited; and the 3-year Statute of Limitations was inappropriately imposed against him during the initial review of this case by this Board are insufficient justifications for reinstating him on active duty.

3.  Although the applicant believes he meets the enlistment standards of DODI 6130.03, this DODI states it is the policy of the DoD to ensure that individuals under consideration for appointment, enlistment, or induction into the military services are medically capable of performing duties without aggravation of existing physical defects or medical conditions.

4.  The correct paragraph in Army Regulation 40-501 (paragraph 2-27k) states the same as the incorrect paragraph that was cited (and citing paragraph 2-17 appears to have been a typographical error).  It is acknowledged that his treatment at the VA medical center occurred on 3 March 2010 instead of 3 March 2003, and it acknowledged that he was within the 3-year Statute of Limitations because the ADRB did not change his narrative reason for separation until        18 June 2012.  However, had these errors never been made, it would not have changed the outcome of the decision made by this Board on 22 January 2013.

5.  The applicant was not erroneously discharged from the Army.  He was discharged on 22 March 2007, under the provisions of the Army Regulation         635-200, chapter 15-3b, which was appropriate at the time of his discharge.  

6.  DODI 6130.03 states it is DOD policy to ensure that individuals under consideration for appointment, enlistment, or induction into the military services are free of medical conditions or physical defects that may require excessive time lost from duty for necessary treatment or hospitalization, or probably will result in separation from the Service for medical unfitness; medically capable of satisfactorily completing required training; and medically adaptable to the military environment without the necessity of geographical area limitations.

7.  The applicant had a number of anxiety disorders.  While perhaps not disabling to the point where he required hospitalization or medication or even outpatient care, taken together and combined with his chronic knee pain it appears to have been very reasonable for the ARNG to have found he was medically unacceptable for enlistment.

8.  The action taken by the ADRB to change his narrative reason for discharge does not constitute a reason for immediate reinstatement or forced reenlistment in any way.  He has provided insufficient evidence to substantiate his contention that he should be reinstated on active duty.

9.  In view of the foregoing, the applicant's request should be denied.

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 to amend the decision of the ABCMR set forth in Docket Number AR20120002987, dated 22 January 2013.



      _________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)                                         AR20130003652



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ABCMR Record of Proceedings (cont)                                         AR20130003652



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