IN THE CASE OF:  	  

		BOARD DATE:  3 December 2014	  

		DOCKET NUMBER:  AR20140007032 


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 earlier request to correct his military records by upgrading his under other than honorable conditions discharge to a general discharge.  He further requests the reason for his discharge be changed to physical disability.

2.  The applicant states he made many mistakes while in the military service and has taken full responsibility for those actions.  He made some mistakes for which he was not to blame.  Today, he suffers from Crohn's Disease.  Physicians believe his condition began while he was in the military service.  While in the service, he was improperly diagnosed with having a bleeding ulcer, when, in fact, it was Crohn's Disease which is incurable.  He argues that the side effects of this disease, including uncontrolled falling asleep, severe abdominal pain, diarrhea and blood in his stool, were responsible for his being accused of shirking his duties.  He was not shirking.  He does admit that after his aunt passed away, he was absent without leave (AWOL) but he did return to his unit.  He also got into a couple of scuffles.  He was punished for marijuana that was not in his possession and was not using it.  He knows the Board has already recognized his misdiagnosis by the military.  Since leaving the military, he has had two major surgeries for his disease, one of which removed most of his large intestine.  He cannot receive medical treatment from the Department of Veterans Affairs (VA) unless his discharge is upgraded.  If his medical condition had been properly diagnosed while he was still in the service, he would have been discharged due to his condition.


3.  The applicant provides copies of:

* Standard Form (SF) 600 (Chronological Record of Medical Care), dated 31 May and 22 June 1978
* A Gastroenterology Consultation, Santa Clara Valley Medical Center, dated 7 February 2006 (only the first page of three was received)

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 AR20120005074, on 18 September 2012.

2.  The applicant has restated the same argument offered in the original case, contending that if his medical condition had been correctly diagnosed while he was still on active duty, he would have been discharged due to that medical condition.  The two documents he provides with this request for reconsideration are new and should be considered by the Board.  Furthermore, he argues that his application was submitted late because the VA failed to properly process it for him in a timely manner.  Therefore, it would be appropriate for the Board to consider this request as an exception to policy.

3.  The applicant's original application and Record of Proceedings show:

	a.  he simply stated that while he was in the military, he had been seen at the hospital for a bleeding ulcer and that he had served his country honorably;

	b.  he also stated that later he had been diagnosed with Crohn's Disease;

	c.  he accepted nonjudicial punishment (NJP) on nine separate occasions for the following misconduct:

* numerous incidents of failing to go at the time prescribed to his appointed place of duty
* assaulting another Soldier by striking him with his fists
* wrongfully having possession of a hand-rolled cigarette of marijuana
* being incapacitated by intoxicating liquor preventing him from proper performance of duty as cook and barracks orderly
* being absent without leave (AWOL) from 21 September to 4 October 1978
* breaking restriction

	d.  His commander initiated action to administratively separate him for misconduct.  The administrative proceedings of his separation action appeared to have been in compliance with the governing regulation and none of his rights were jeopardized.  The Board determined that his service did not meet the acceptable standards for conduct and performance of duty.  He was properly and equitably discharged.  The Board denied his request.

4.  The SF 600, provided by the applicant, shows that he was examined on 
31 May 1978 and subjected to half a dozen different tests.  He was given health counseling, a medical prescription, and told to return in 7 days for a follow-up examination.  On 22 June 1978, he returned to the medical clinic because of stomach cramps for the previous 2 weeks.  He was examined and prescribed Ducolax.

5.  The gastroenterology consultation, dated 7 February 2006, provided by the applicant indicates he was referred for evaluation of his Crohn's Disease.  The summary of his illness stated he had been having abdominal cramping pain as far back as 1977 while in the U.S. Army.  He had been diagnosed with having a bleeding ulcer and was treated with antacids without benefit.  He left the service in 1979 and continued to have episodes of abdominal cramping for the next 
15 years.  In 1995, he had an acute abdominal attack which led to surgery resulting in a finding of a Meckel's Diverticulum, Crohn's Disease of the ileum.  This part of his bowel was removed.  He did somewhat better and then went to prison.  While in prison, he had two hospitalizations and was treated episodically with Metronidazole and Prednisone.  He was on Ensure for a protracted period.  His weight was as low as 160 pounds.  He had been released from prison 2 months prior to this consultation and was establishing his health care program.

6.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

	a.  Disposition through medical channels will take precedence over separation actions under chapter 14 for misconduct when the medical treatment facility (MTF) commander or attending medical officer determines that a Soldier being processed for such administrative separation does not meet the medical fitness standards for retention.  The administrative separation proceedings will continue, but final action by the separation authority will not be taken, pending the results of a Medical Evaluation Board (MEB).  If the MEB findings indicate that referral of the case to a Physical Evaluation Board is warranted for disability processing under the provisions of Army Regulation 635–40 (Physical Evaluation for Retention, Retirement, or Separation), the MTF commander will furnish copies of the approved MEB proceedings to the Soldier’s General Court-Martial Convening Authority (GCMCA) and unit commander.  The GCMCA may direct, in writing, that the Soldier be processed through the physical disability system when action under the Uniform Code of Military Justice has not been initiated and the Soldier’s medical condition is the direct or substantial contributing cause of the conduct that led to the recommendation for administrative elimination.

	b.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense that could result in a punitive discharge, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

	c.  Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	d.  Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

6.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has an impairment rated at less than 30 percent disabling.  It further provides at section 1201, for the physical disability retirement of a member who has an impairment rated at least 30 percent disabling.

7.  Army Regulation 635-40 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.

8.  Crohn's Disease is a chronic digestive disease that causes inflammation of the digestive tract.  It most commonly affects the lower part of the small intestine, but can affect any part of the digestive tract from the mouth to the anus.  Swelling that extends deep into the lining of the affected organ can cause pain and can make the intestines empty frequently, resulting in diarrhea.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected by upgrading his under other than honorable conditions discharge to a general discharge and his reason for his discharge should be changed to physical disability.  He further contends that while he was responsible for some of his misconduct, his medical condition also was a contributing factor.

2.  The record shows he accepted nine NJPs for misconduct consisting of not reporting for duty, assault, possession of marijuana, being intoxicated, being AWOL, and breaking restriction.  It is understandable that the affects of Crohn's Disease could have caused him to be late or absent from his place of duty for a period of time on numerous occasions.  However, it is not reasonable to believe that such illness resulted in him assaulting another Soldier, being drunk on duty, possessing marijuana, or being AWOL for more than a week.  Accordingly, the applicant's contention that his illness was the proximate cause of his misconduct is not accepted.

3.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

4.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

5.  The available evidence does not show the applicant had any medical conditions, incurred while entitled to basic pay, which was so severe as to render him medically unfit for retention on active duty.  Accordingly, the applicant was separated from active duty for reasons other than physical disability.

6.  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 to amend the decision of the ABCMR set forth in Docket Number AR20120005074, dated 18 September 2012.



      ___________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)                                         AR20140007032



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ABCMR Record of Proceedings (cont)                                         AR20140007032



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