BOARD DATE:   2 July 2014

		DOCKET NUMBER:  AR20130017750


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, correction to his DD Form 214 (Certificate of Release or Discharge from Active Duty) ending on 27 April 1995 to show he was separated due to physical disability.  In addition, he requests correction of his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) ending on 30 September 1997 to show he was separated due to physical disability.

2.  The applicant states he was discharged from the military with a chronic illness that has become progressively worse.  He contends that the symptoms were clearly present during service but medically diagnosed by the Department of Veterans Affairs (VA) and by private physicians.  He wants his honorable discharge to show he was released with a chronic condition, Meniere's syndrome, which occurred while he was on active duty.  The symptoms were continuously misdiagnosed while he was on active duty.  His military doctor gave him hope by assuring him that his condition would improve in time and that surgery would not correct it.  He said an aspirin, a Dramamine, and a few drops of mineral oil in his ear from time to time would soothe the discomfort that would eventually work itself out.  Through the years the pain became much more severe.  Over-the-counter medications became less effective and more costly.  In 2007, the pain was so severe he contacted the VA for medical help.  The VA neurologists were in total disagreement with the military doctor in regard to surgery.  They led him to believe his condition would not get better without the surgery.  He agreed to have the surgery.  Afterwards, he discovered the military doctor was right in advising him not to have the surgery.  Whereas prior to surgery he suffered headaches once a week, now he suffers three times a week with loud roaring tinnitus, ataxia, nausea and gagging, vomiting, bilateral hearing loss with ear fullness, right greater than left, which is usually his warning to stop what he is doing and either sit down or lay down because his severe ataxia and vertigo are coming.  More recently, he was medically diagnosed as needing aids.  He thanks his private physician for referring him to a neurologist who took the time to diagnose all of his symptoms as one condition, Meniere's syndrome.

3.  The applicant provides copies of:

* DD Form 214 (Member 4 copy) ending on 27 April 1995
* Radiology Consultation Requests, dated 30 April and 12 July 1993
* Medical Record - Progress Note, dated 4 March 1994
* Emergency Care and Treatment Record, dated 9 March 1994
* Standard Form 600 (Chronological Record of Medical Care), dated       9,15 and 17 March 1994
* Audiological Evaluation Record, dated 2 August 1994
* Standard Form 600, dated 2 August 1994
* Reverse of Standard Form 600, dated 14 February 1995
* Reverse of Standard Form 93 (Medical History Statement) dated             14 March 1995
* Published Medical article, "The Three Faces of Vestibular Ganglionitis," dated February 2002
* Surgical Information, VA, dated 4 September 2007
* Medical tests, Gacek Ear and Sinus Center, Inc, dated 13 September 2008

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.  Records show the applicant enlisted in the U.S. Army Reserve (USAR) on 
13 July 1987.  He was ordered to active duty (ADT) training commencing on 27 August 1987.  He completed training as a motor transport operator and was released from ADT on 16 January 1988.  On 4 February 1993, he was discharged from the USAR for the purpose of enlistment in the Regular Army.

3.  On 5 February 1993, the applicant enlisted in the Regular Army and was trained as a multiple launch rocket specialist (MLRS) crewmember.  He attained the rank of sergeant, pay grade E-5 on 4 November 1994.

4.  The applicant's service medical records are not available for review.  However, the medical documents provided by the applicant show the following reasons for visiting the medical clinic:

	a.  30 April 1993: pain in right thumb, playing football;

	b.  12 July 1993: pain in left foot, weight fell on foot;

	c.  4 March 1994: right ear bleeding, diagnosed closed head trauma and baseline skull fracture, frontal contusions;

	d.  9 March 1994: ringing in ears;

	e.  15 March 1994: muffled sound right ear;

	f.  17 March 1994: audiology and speech clinic, tinnitus and dizziness;

	g.  2 August 1994: audiology evaluation due to pain and buzzing noise; and

	h.  14 February 1995: rash on left foot.

5.  On 27 April 1995, the applicant was honorably discharged from active duty due to a reduction in force in accordance with Army Regulation 635-200 (Personnel Separations).  He was given a reentry (RE) code of 1, signifying he was fully eligible to reenlist without a waiver.

6.  On 12 April 1996, the applicant enlisted in the Alabama Army National Guard (ARNG).  He served until his honorable discharge on 11 October 1996.  He was given an RE Code 1.

7.  On 9 June 1997, the applicant enlisted in the Alabama ARNG; however, he was honorably discharged under the provisions of National Guard Regulation 600-200, paragraph 8-27s on 30 September 1997.  He was given an RE-3.

8.  Army Regulation 40-501 (Standards of Medical Fitness) provides the standards for medical fitness for retention and separation, including retirement.  Soldiers with medical conditions listed in this chapter should be referred for disability processing.

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

	a.  This regulation provides 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 member reasonably may be expected to perform because of his or her office, rank, grade or rating.

	b.  It also provides that when a member is being separated by reason other than physical disability, his or her continued performance of assigned duty commensurate with his or her rank or grade until he or she is scheduled for separation or retirement creates a presumption that he or she is fit.  This presumption can be overcome only by clear and convincing evidence that he or she was unable to perform his or her duties for a period of time or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

10.  National Guard Regulation 600-200 (Enlisted Separations), paragraph 8-27s, is the authority for expiration of active status commitment in the Selected Reserve.  A reentry code of RE-1 is given unless there is a bar to reenlistment (then RE-3).

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his DD Form 214 ending on 27 April 1995 and his NGB Form 22 ending on 30 September 1997 should be corrected to show he was separated due to physical disability because his symptoms were clearly present during service but not medically diagnosed until later by the VA and by private physicians.

2.  The evidence of record clearly shows that the applicant was released from ADT in 1988 due to completion of required service.  He subsequently enlisted in the Regular Army and served for just a little more than 2 years when he was discharged due to a reduction in force on 27 April 1995.  He was given an RE code 1.  Presumably he was medically fit for retention at that time because he was allowed to enlist in the ARNG.  He then enlisted in the ARNG, served for almost 16 months, and was again discharged with an RE code 1.  His last period of service was again in the ARNG for a 3 month period ending on 30 September 1997.  While it appears he was separated due to the expiration of his Selected Reserve commitment, there is no evidence of record and he provides no evidence to show he was separated due to a medical condition.

3.  None of his military separations discussed above appear to have been based on any medical condition that rendered him unfit to serve.

4.  While there is evidence that the applicant suffered a head trauma in 1994 while on active duty which may have been the proximate cause of his subsequent medical condition, there is no evidence of when or how this trauma occurred or that the trauma resulted in an unfitting condition while still on active duty.

5.  Because the applicant's physical condition was not medically unfitting for retention at the time of his multiple separations, there is no basis for medical retirement or separation.

6.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.  Conditions that become worse over time are properly the jurisdiction of the VA.

7.  The applicant has not made any argument that convincingly shows that what the Army did was wrong.  His complete service medical records are not available for review nor has he shown any injustice or error in connection with the circumstances of his multiple discharges.

8.  In view of the above, 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 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)                                         AR20130005019



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ABCMR Record of Proceedings (cont)                                         AR20130017750



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