BOARD DATE:	  17 July 2014

		DOCKET NUMBER:  AR20130017521 


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 two applications and through a member of congress, his 15 March 1971 honorable discharge (HD) be changed to show he was medically retired with a one hundred percent disability rating.

2.  The applicant states:

	a.  the medical standards for entry into the United States Armed Forces were ignored in his case;

   b.  he was negligently inducted into the Army with two severe disabilities that should have disqualified him from entry on active duty; and

	c.  while his conditions of asplenia/secondary immunodeficiency and idiopathic thrombocytopenic purpura (ITP) resulted in his discharge from service, he should have been medically discharged with compensation.

3.  The applicant provides:

* Congressional Tasker with/

o Senate Email 
o Privacy Act Statement
o three Self-Authored Statements dated 12 October 2012, 13 and 17 June 2013
o Standard Form 600 (Chronological Record of Medical Care)
o U.S. Army Reserve (USAR) Honorable Discharge Order

* ten additional Self-Authored Statements (2 undated)
* twelve Internet and other documents titled:

o Harrington Hollingsworth experiment
o Haematologica
o Answer Party (What characteristics of the spleen…)
o Military Medical Standards for Enlistment, Appointment, or Induction (two dated 22 May 2014 and 10 June 2009)
o World Journal of Surgery (13 pages)
o Annals of Surgery
o Hazard of Severe Infections in Splenectomized Infants and Children
o Tribute to a Triad (History of Splenic Anatomy, Physiology,..)
o ITP:  An Historical Perspective
o Access Surgery
o About.com (Punitive Articles of the Uniform Code of Military Justice)
o Medline Plus (Spleen Removal)
o WebMD (Digestive Disorders Health Center)

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 applicant's official military personnel file (OMPF) contains a letter from Overlake Internal Medical Associates dated March 6 1969.  It shows:

   a.  the applicant underwent a splenectomy on 17 February 1967, for ITP and since that time has had no further trouble with platelet defects; and
   
   b.  an examiner reviewed and considered the applicant's physical profile.

3.  His OMPF includes a DD Form 4 (Enlistment Contract) dated 20 March 1969, prepared during his enlistment processing.  Item 25 (Physical Profile) of this document shows he was assigned a PULHES of 111111 (Category A), which indicates he was found fit and qualified for enlistment upon completion of his entrance physical examination.

4.  On 20 March 1969, the applicant enlisted in the Regular Army.  He was initially trained in and awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman) and later reclassified into MOS 71B (Clerk Typist).

5.  A Standard Form 88 dated 25 April 1969 shows:

* the applicant was admitted to the hospital on 13 April 1969, for cellulitis (a common skin infection that happens when bacteria spread through the skin to deeper tissues) and septicemia (occurs when a bacterial infection enters the bloodstream)
* his condition(s) improved, he was assigned an L3 profile for 2 weeks, discharged on 25 April 1969, and advised to follow-up in the dispensary
* on 29 April 1969, his profile was evaluated and removed
* on 16 June 1969, the applicant requested an MOS change due to a splenectomy he underwent 2 years prior as a result of ITP
* the applicant's splenectomy in of itself was no indication for MOS change 
* he was returned to duty on 16 June 1969

6.  A DA Form 1811 (Physical and Mental Status on Release from Active Service) shows the applicant's physical condition on 15 March 1971 was such that he was considered physically qualified for separation or for reenlistment without examination, provided he would reenlist within 3 months and state he had not acquired any new diseases or injuries during the interval period when not a member of military service.  This document also shows his assigned PULHES or physical profile was 311111 on the date of his separation.

7.  On 15 March 1971, Headquarters, U.S. Army Personnel Center, Fort Lewis, Washington, published Special Orders Number 74.  This order directed the applicant's release from active duty (REFRAD) not by reason of physical disability on 15 March 1971.

8.  On 15 March 1971, he was REFRAD, by reason of "overseas returnee" having completed 1 year, 11 months, and 26 days of creditable active duty service.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge shows he was transferred to the USAR Control Group (Annual Training) to complete his remaining military service obligation which would terminate on 19 March 1975.
9.  The applicant's OMPF contains a second letter from Overlake Internal Medical Associates dated 12 March 1972.  It shows that although the applicant had an uneventful post-operative course subsequent to his splenectomy in February 1967, he had considerable trouble with recurrent nose bleeds and on occasion noted petechial rash (rashes that look like pin points, are reddish in color and are flat unlike regular rashes) on the volar aspects of his wrists in August 1972.

10.  The reverse side of the Overlake Internal Medical Associates Letter dated 12 March 1972 shows a review by the Physical Review Board determined the applicant was not qualified for retention in the USAR.  It also shows he was assigned a PULHES of 411111.

11.  On 17 October 1972, the Office of the Adjutant General (AG), St. Louis, Missouri, informed the applicant that he was medically disqualified for retention in the USAR.  He was also informed he must be discharged from the USAR and that his discharge documents would follow.

12.  On 1 November 1972, the Office of the AG published Letter Orders Number 11-1441018.  It ordered the applicant's honorable discharge from the USAR on 2 November 1972, by direction of the Secretary of the Army, under the provisions of paragraph 3-4, Army Regulation 135-178, by reason of physical disqualification.

13.  The applicant provides numerous internet webpage documents that provides the medical history of ITP, his medical diagnosis, and information surrounding a splenectomy, the medical treatment he received for his condition.  He also provides multiple self-authored statements wherein he primarily disagrees with the Department of the Defense for allowing him to enlist in the Army with ITP, indicating this condition should have prevented his entering on active duty.

14.  Army Regulation 135-178 (Discharge of Enlisted Members of the U.S. Army), in effect at the time, prescribed the authority, conditions, and procedures governing the discharge of enlisted members of the USAR.  Paragraph 3-4 states in pertinent part that an enlisted member will be discharged when it has been determined he is no longer qualified for retention by reason of medical unfitness unless he requests and is granted a waiver under Army Regulation 140-120, or is eligible for transfer to the Retired Reserve.

15.  Army Regulation 140-120 (Medical Examination) prescribes policies and procedures for medical examinations.  Chapter 16 states in pertinent part that a reservist who does not meet the fitness standards set by chapter 3, Army Regulation 40-501, will be transferred to the Retired Reserve if eligible or discharged from the USAR per Army Regulation 135-175 or Army Regulation 135-178.  It further states that reservists who are found unfit may request continuance in an active USAR status if they request continuance in an active status of the Army Reserve or their physical disability is the result of disease or injury which has been determined to be in line of duty.

16.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), then in effect, established the Army Physical Disability Evaluation System (PDES) and set forth policies, responsibilities, and procedures that applied 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.  Chapter 3 provides guidance on presumptions of fitness.  It states 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 Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  Separation by reason of disability requires processing through the PDES.

17.  Chapter 4 of the same regulation states that the PEB evaluates all cases of physical disability equitably for the Soldier and the Army.  The PEB investigates the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board.  It also evaluates the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating.  Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability.

18.  Army Regulation 40-501 (Standards of Medical Fitness), chapter 7, physical profiling, provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted.  It establishes four numerical designations (1-4) that are used to reflect different levels of ears; E-eyes; and S-psychiatric.

19.  A numerical designator of "1" functional capacity in the following six factors that are recorded as a PULHES: P-physical capacity or stamina; U-upper extremities; L-lower extremities; H-hearing and under all factors indicates that an individual is considered to possess a high level of medical fitness and consequently, is medically fit for any military assignment.  A numerical designator of "3" signifies that the individual has one or more medical conditions or physical defects that may require significant limitation.  The individual should receive assignments commensurate with his or her physical capability for military duty. A numerical designator of "4" signifies a functional level below of "3."

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should have received a medical discharge was carefully considered.  However, there is insufficient evidence to support this claim.

2.  By regulation, 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 Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.

3.  The evidence of record is void of any medical evidence that suggests the applicant suffered from a physically disabling condition that rendered him unfit to perform his military duties and/or that warranted his processing through the Army’s PDES at the time of his REFRAD on 15 March 1971.  

4.  It further shows that after his REFRAD, while serving in the USAR, the symptoms of a condition that existed prior to service resurfaced and ultimately led to his disqualification for further service and he was discharged from the USAR based on his medical disqualification in accordance with the applicable regulations.  The record confirms that at the time of his REFRAD, he was medically cleared for separation by competent medical authority after undergoing a comprehensive separation medical examination.  The fact that he was determined to be unfit for further service in the USAR does not call into question the validity of the medical findings at the time of his REFRAD.  As a result, 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)                                         AR20130017521





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ABCMR Record of Proceedings (cont)                                         AR20130017521



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