IN THE CASE OF:	  

		BOARD DATE:	  30 April 2015

		DOCKET NUMBER:  AR20140015848 


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 a medical discharge.

2.  The applicant states that he went swimming in Lake Charles, LA, where a fuel refinery was polluting the water.  He developed diabetes mellitus from that incident in 1977, with no warning.  He did not receive medical treatment until 21 March 1990 when he went into a diabetic coma.  The British Petroleum (BP) Oil Company folded in September 2013.  The news reported that BP paid lawyers off and no new cases were being taken.  His records are located at the Memphis, TN, Department of Veterans Affairs Medical Center.

3.  The applicant provides a list of his medications.

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 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 provide in the statute of limitations, the ABCMR has elected to conduct a substantive review of the cases 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 sufficient bases to waive the statute of limitations.
2.  The applicant enlisted in the Regular Army on 7 September 1976.  He was awarded military occupational specialty 64C (motor transport operator).  He was advanced to pay grade E-2 on 7 March 1977.  

3.  His records contain a Standard Form (SF) 600 (Health Record – Chronological Record of Medical Care) which shows he seen the Troop Medical Clinic, Fort Polk, LA, and received treatment on 1 October 1976 for a painful right leg.

4.  He was advanced to pay grade E-2 on 7 March 1977.  

5.  His records also contain a SF 600 which shows he was seen at 5th Medical Dispensary, Fort Polk, LA, and received treatment on 31 May 1977 for back pain.

6.  He accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, on/for:

* 11 May 1977 - being absent without leave (AWOL) from 2 through 20 May 1977; his punishment included a reduction to pay grade E-1, a suspended forfeiture of $50.00 pay for 1 month, and correctional custody confinement for 7 days
* 14 June 1977 – being AWOL from 13 May through 7 June 1977; his punishment included correctional custody for 26 days

7.  His records further contain a SF 600 which shows he was seen at 5th Medical Dispensary, Fort Polk, LA, and received treatment on/for:

* 24 June 1977 – pain in the small of his back
* 1 July and 8 August 1977 – back pain
* 18 August 1977 – back pain as a result of a motorcycle accident

8.  On 4 January 1978, he was convicted by a special court-martial of one specification of being AWOL from 24 October through 20 November 1977.  He was sentenced to a forfeiture of $220.00 pay for 3 months and confinement for 75 days.

9.  His records also contain a SF 600 which shows he was seen at U.S. Army Troop Medical Center (USAMTC), Fort Riley, KS and received treatment on/for:

* 24 January 1978 – back pain
* 1 February 1978 – back and upper muscle spasm

10.  On 6 February 1978, the convening authority approved his special court-martial sentence, but suspended the period of confinement for 1 month, and ordered it executed.

11.  A DA Form 2496 (Disposition Form), dated 15 February 1978, shows he requested a medical waiver on his physical examination and acknowledged that he could be waiving his medical benefits.   

12.  His record is void of the complete facts and circumstances surrounding his discharge; however, his records contain the following:

   a.  A Discharge of Personnel for Misconduct memorandum, dated 24 February 1978, wherein the separation authority approved his discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), c13, and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.

   b.  A DD Form 214 (Report of Separation from Active Duty) which shows he was discharged in pay grade E-1 on 27 February 1978, under the provisions of Army Regulation 635-200, paragraph 13-5a(1).  His service was characterized as UOTHC.  He was credited with completing 1 year, 3 months, and 2 days of active service and he had 79 days of lost time.

13.  He provided a copy of a list of his medications:

* Lantus insulin glargine
* Novolog insulin injection
* Metformin
* Omeprazole
* Cetirizine
* Aspirin
* Multivitamin/minerals (Therapeut)
* Vitamin D (Ergocalciferol)
* Rosuvstation Capsules
* Atorvastatin Calcium
* Carbamide
* Ibuprofen
* Fluisolide
* Ammonium Lactate Lotion

14.  There is no evidence he petitioned the Army Discharge Review Board for an upgrade of his discharge within that boards 15-year statute of limitations.

15.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  

   a.  Paragraph 13-5(a)1 provided for the separation for unfitness, which included frequent incidents of a discreditable nature with civil or military authorities.  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

   b.  Paragraph 3-7a states an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

   c.  Paragraph 3-7b states a general discharge was a separation from the Army under honorable condition.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

16.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, set forth policies, responsibilities, and procedures that apply in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  

17.  Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, in effect at the time, provided that for the separation of an individual found to be unfit by reason of physical disability, he/she must be unable to perform the duties of his officer, grade, rank, or ratings.  Members with conditions, as listed in this chapter, were considered medically unfit for retention on active duty and were referred for disability processing.  Paragraph 6-9 (Endocrine and metabolic disorders) stated the cause of medical unfitness for military service was Diabetes mellitus, unless mild and controllable by diet; however, for non-deployable recalled Army retirees, diabetes mellitus adequately controlled by diet or hypoglycemic medication (oral or insulin) was acceptable.

18.  Title 38, U.S. Code, sections 1110 and 1131, permits the Department of Veterans Affairs (VA) to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's record does not contain the complete facts and circumstances surrounding his discharge.  However, his records contain a Discharge of Personnel for Misconduct memorandum and DD Form 214 which indicates he was discharged under the provisions of Army Regulation 635-200,  paragraph 13-5a(1), for unfitness by reason of frequent incidents of a discreditable nature with civil or military authorities.

2.  His contentions were carefully considered.  However, there is no diagnosis of diabetes in his medical service records.  The available evidence shows he sought and received medical treatment for leg and back pain during his period of service.  His post-service treatment for diabetes is not available for the Board to review.  It appears he was diagnosed with diabetes over 2 years after his date of discharge.  

3.  There is no available evidence showing he suffered a disabling condition(s) during his period of service that would have supported his processing for a medical discharge through medical channels.  

4.  In view of the foregoing, there is insufficient evidence to support granting him the requested relief.

5.  The type of discharge directed and the reasons for separation were appropriate considering all the known facts of the case.  His records contain no indication of procedural or other errors that would tend to jeopardize his rights.  

6.  The ABCMR does not correct records solely for the purpose of establishing entitlements to medical benefits or any other purpose.

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)                                         AR20140015848



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ABCMR Record of Proceedings (cont)                                         AR20140015848



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