MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            12 May 1999 
	DOCKET NUMBER:    AR1998014483

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. George D. Paxson		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. James E. Anderholm		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That his separation reentry codes be corrected.

APPLICANT STATES:  That he was wrongfully discharged with improper separation and reentry codes due to a misdiagnosis of tuberculosis (TB).  He was discharged prior to a confirmation test, which tested negative.  The improper codes prevent him from receiving education benefits to which he is entitled.

COUNSEL CONTENDS:  That the applicant received a medical discharge after testing positive for TB.  The discharge occurred prior to the confirmation test, which indicated that he actually tested negative for TB.  Statements from two doctors support this contention.  After discovering that he was not infected with TB, the applicant subsequently reenlisted.  He has, however, been denied eligibility to receive funds under the GI Bill due to the nature of his prior improper discharge and subsequent reentry.  Because his discharge was wrongful, the applicant should not be denied GI Bill eligibility.

EVIDENCE OF RECORD:  The applicant's military records show:

He enlisted in the Regular Army on 12 January 1995.

Around February 1995, the applicant was noted to have a positive Monovac test (a routine screen for TB) and a subsequent positive PPD (a skin test more specific for TB).  X-rays also found lesions in the right upper lobe of his lung.  A diagnosis of pulmonary TB was made, which required a 6-month chemotherapy treatment.  It was recommended the applicant be separated for failure to meet medical procurement standards.  The DA Form 4707 indicates this was an EPTS (existed prior to service) condition.

The applicant was informed of the findings.  He concurred with the proceedings but requested that he be retained on active duty.  The approval authority determined that he should be discharged.

On 24 February 1995, the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 5-11, for failure to meet procurement medical fitness standards.  He had completed 1 month and 13 days of creditable active service.  He was given a separation code of JFW (failure to meet procurement medical fitness standards) and a reentry code of 3 (disqualified for reenlistment but the disqualification was waiverable).

On 3 January 1996, the applicant reenlisted in the Regular Army for 4 years.  He had obtained a medical waiver.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Separations under the provisions of Chapter 5 are considered separations for the convenience of the government.  Chapter 5, paragraph 5-11, sets the policy and prescribes procedures for separating members who were not medically qualified under procurement medical fitness standards when accepted for enlistment or who became medically disqualified under these standards prior to entry on active duty.  Medical proceedings, regardless of the date completed, must establish that a medical condition was identified by appropriate military medical authority within 6 months of the soldier’s initial entrance of active duty that would have permanently or temporarily disqualified him or her for entry into the military service or entry on active duty had it been detected at that time and does not disqualify him or her for retention. Unless the reason for separation requires a specific characterization, a soldier will be awarded an uncharacterized description of service if in entry level status.  As an exception, a soldier may request to be retained in the Service, but no soldier has a right to be retained under this paragraph.  Unless the separation authority determines that the soldier’s disqualifying condition will not prevent the soldier from performing satisfactorily throughout his period of enlistment in the primary military occupational specialty for which being trained, the soldier will not be retained.

Army Regulation 40-501 governs the medical fitness standards for enlistment, appointment, induction, retention and separation.  In pertinent part, it states that an individual will be rejected for enlistment, appointment, or induction if he/she has active TB in any form or location, or a substantiated history of active TB within the previous 2 years.  Individuals with a past history of active TB more than 2 years prior to enlistment, induction and appointment are not disqualified providing they have received a complete course of standard chemotherapy for TB.  In addition, individuals with a tuberculin reaction 10mm or greater and without evidence of residual disease in pulmonary or non-pulmonary sites are eligible for enlistment, induction and appointment provided they have or will be treated with chemoprophylaxis in accordance with the guidelines of the American Thoracic Society and U. S. Public Health Service.

The supporting letter dated 12 April 1995 provided by the applicant notes “While there was a suggestion that he might have tuberculosis…Although, it is reasonable for him to complete a 6 month course of treatment for tuberculosis…”
The supporting letter dated 10 July 1995 notes “After review of his records and current test results, he was never found to be infectious…His chest radiograph changes appeared to respond to therapy and, therefore, it was continued for a full course of 6 months.  He is medically clear.  Follow-up for all TB cases is recommended with chest radiograph and sputum for AFB 6 months after completion of therapy….”

The Montgomery GI Bill is a Department of Veterans Affairs program which provides education benefits to individuals who enter active duty for the first time after 30 June 1985 and receive an honorable discharge.
In responding to the applicant’s Senator, the U. S. Total Army Personnel Command noted that the applicant was eligible for one month of benefits under the Montgomery GI Bill (MGIB) for each month of active duty he served.  When the MGIB was enacted in 1985, the law required an individual to be a non-prior service enlistee.  One day in an active component establishes a person as a prior service enlistee.  The law was changed in 1992 to enable an individual separated prior to completing 12 months of their initial obligated period of service for, among other reasons, non-service-connected disability that pre-existed service and subsequently re-enters active duty, to combine these two period of service to qualify for additional educational benefits.  Because the applicant’s discharge was categorized as convenience of the government and not a pre-existing medical condition, he is not eligible to combine his periods of service.

In the processing of this case, an advisory opinion was obtained from the Medical Advisor to the Army Review Boards Agency (SEE ATTACHED).  This opinion was forwarded to the applicant for comment.  He did not respond within the given time frame.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion, it is concluded:

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The Board concludes that the separation authority made a proper decision to separate the applicant in that it is not practical to subject an initial entry soldier who has not yet even completed basic training to a 6-month program of therapy.

3.  The applicant has not provided evidence to show that his diagnosis of TB was in error.  Neither of his supporting statements assert that he never had TB, only that he did not appear to have infectious TB.  The first statement notes “…it is reasonable for him to complete a 6 month course of treatment for tuberculosis…”
The second statement indicated that he was being given therapy for TB.

4.  Although the applicant was properly discharged under the provisions of Army Regulation 635-200, Chapter 5 (because, although he did not meet the medical procurement standards, he did meet the medical retention standards), his DA Form 4707 does indicate that his condition was EPTS.  The applicant should apply to the Department of Veterans Affairs for entitlement to the MGIB as an exception to policy based upon this finding.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__gdp___  __aao___  __jea___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC98-09509/AR1998014483	
SUFFIX		
RECON		
DATE BOARDED	19990512	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	100.00	
2.		
3.		
4.		
5.		
6.