MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:           8 March 2000                  
	DOCKET NUMBER:   AR1999025513

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Elzey J. Arledge, Jr.		Member	
	Mr. Ernest W. Lutz, Jr.		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:  In effect, the applicant requests either physical disability retirement or separation, or that his general discharge be upgraded to honorable. 

APPLICANT STATES:  That he enjoyed his military service, but became both physically and mentally ill.  He is now working on his medical problems, and has tried to get a copy of his service records, to no avail.  He has never been in trouble while in the service with the exception of smoking some pot after he was informed that he was going to receive an administrative discharge.  His work in the service was the best that he could give.  

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

That he enlisted in the Army Reserve delayed entry program (DEP) on              22 February 1996, and was discharged from that program upon his enlistment in the Regular Army for four years on 2 May 1996.  A report of medical examination indicates that the applicant had persistent rales, bronchitis, and burns, 1st degree, back, abdomen, buttocks, and thigh, among other problems, and was initially not qualified for enlistment; however, it was resolved that he did not have rales, and he was medically  qualified for enlistment. 

The applicant completed training at Fort Jackson, South Carolina, and in        July 1996 was assigned to a maintenance company in Germany.

A 19 March 1997 medical report indicates that the applicant was treated for fluid in his lungs, causing problems with running exercises.

The applicant was counseled on 24 September 1997 because of his continued substance abuse, and declared a rehabilitation failure in the alcohol and drug abuse prevention and control program (ADAPCP). 

In a 24 September 1997 memorandum to the applicant’s commanding officer the clinical director of the community counseling center stated that the applicant had been referred to the ADAPCP on 19 May 1997, was screened on 28 May 1997, and enrolled in the program on 28 July 1997, attending 7 treatment sessions, and two meetings.  He was declared a rehabilitation failure by his commanding officer due to continued substance abuse on 24 September 1997.  The clinical director stated that the applicant’s progress and prognosis appeared poor at that time.

The applicant was counseled on 1 and 2 October 1997 for failure to obey an order in that his room was not ready for inspection.

A 21 October radiologic examination report indicated that the applicant had a persistent cough for 6 days, that he had a history of pneumonia (3 years ago), and that he had a fever of 103.  The report indicated that his chest was normal. 
A 30 October 1997 report of medical examination shows that the applicant was medically qualified for separation with a physical profile serial of 1 1 1 1 1 1 .  That report shows that the applicant had diffuse scattered ronchi throughout his lungs and chest, and that he had a full exposure at early age to fiberglass.  The examining physician stated that the applicant was in good health, recovering from bronchitis with poor lung sounds, a history of asthma, and fiberglass exposure at age 15.  The doctor further stated that the applicant needed a full pulmonary evaluation after his discharge.  That report also indicated that the applicant entered the Alcohol and Drug Abuse Prevention Control Program on   19 May 1997 and was classified a rehabilitative failure due to continued substance abuse on 24 September 1997.

In the report of medical history that he furnished for the examination, the applicant stated that he had, or had had, chronic or frequent colds, asthma, shortness of breath, pain or pressure in chest, chronic cough, camps in his legs, arthritis, rheumatism, or bursitis, painful or “trick” shoulder or elbow, and recurrent back pain.  He indicated that he had been hospitalized for 3d degree burns, and had fluid in his lungs at one time.  He had a history of asthma since birth, had been exposed to fiberglass, arthritis in his right shoulder, and 3d degree burns to his right arm when he was 17 years old.

A copy of a DD Form 2624 (Specimen Custody Document – Drug Testing), certified on 20 November 1997, shows that the applicant tested positive for     THC (marijuana).

On 24 December 1997 the applicant received nonjudicial punishment under Article 15, UCMJ, for wrongful use of THC.

On 12 January 1998 the applicant’s commanding officer notified the applicant that he was initiating action to separate him for alcohol or other drug abuse rehabilitation failure.  He stated that the applicant was enrolled in the ADAPCP on 28 July 1997, participating in sessions and meetings, but was involved in a second alcohol related incident on 24 September 1997, and was declared a rehabilitative failure.  That official stated that the applicant received nonjudicial punishment for wrongful use of THC, and that rehabilitation efforts were no longer practical.  He stated that he was recommending that the applicant receive a general discharge.

The applicant acknowledged receipt of the notification, consulted with counsel and stated that he had been advised of the basis for the contemplated action, its effects, and the rights available to him.  He stated that he understood the nature and consequences of the general discharge that he might receive.  He declined to submit statements in his own behalf.

The applicant’s commanding officer recommended to the separation authority that the applicant be discharged under the provisions of Army                 Regulation 635-200, chapter 9, alcohol or other drug abuse rehabilitation failure, and that the applicant receive a general, under honorable conditions discharge.

On 13 January 1998 the separation authority approved the recommendation.
The applicant was discharged on 11 February 1998.  He had 1 year, 9 months, and 10 days of service.

In a 14 February 1998 dissertation, the applicant recounted his service history, especially the problems he had while stationed in Germany.  He stated that shortly after arriving in Germany he received Hepatitis A and B and flu shots, and approximately 2 weeks later came down with pneumonia, and was put on medication, and put on quarters.  An NCO was constantly harassing him because he could not complete his run, even though he had loss of breath, pain in his chest, and cramps in his legs.  He continued by relating his promotion problems, his eventually depression, and stated that when he was off duty he drank socially to medicate his depression, but never got into trouble.  He was broke mentally and financially, and received solace from his sister, also a soldier stationed in the same location as himself.  He finally received promotion to pay grade E-4, but did not get his back pay, causing distress in meeting his financial obligations.  He was continually having flare ups in his chest and his NCO threatened him because of his inability to complete his run.  He still had not received his BAQ after he turned in his quarters after his wife had left.  

The NCO who threatened him went to his new commanding officer and had him enrolled into the alcohol rehabilitation program.  His commanding officer asked him if he wanted to self enroll and he informed his commanding officer that he only drank socially, never had any alcohol offenses, and at that time had basically quit drinking, and that he did not want to self enroll.  His commanding officer enrolled him in the program.  He stated that occasionally at social gatherings he would have a drink, and one day he went to a festival where they were serving beer.  A warrant officer saw beer in front of him at the table and thought he had been drinking, and the next day informed the applicant that he was going to recommend that he be administratively separated.  But before and after the incident, that officer and the NCO who had threatened him both said that it did not matter if he drank, just as long as he did not get caught.

The applicant stated that the NCO was jealous of him because of his (the applicant) ability to do the job.  He stated that he did not understand why that NCO did not assist him in receiving a medical discharge because of the problems with his lungs.  He went on to say that he drank while in the field in Grafenwoehr, and when later accosted, admitted to drinking.  He stated that he always did his job and his work was competent.  He again got pneumonia and he was issued an inhaler, and shortly thereafter he was told that he had rales in his chest.  Any time he exerted himself he started coughing up blood.  Even after that he had pride in his work, but his attitude was changing because of the pending administrative separation.  Prior to sending him home, he smoked some pot and came up positive on a urine test and received nonjudicial punishment.  He received a general discharge because of drug rehabilitation failure.   

The applicant submitted a copy of a brief summary concerning hepatitis A vaccine, inactivated, in which he underlined certain adverse reactions that could occur after taking the vaccine, to include fever, abdominal pain, diarrhea, upper respiratory infection, bronchial restriction, asthma, and wheezing, among others.

In a 6 January 1999 VA medical report for mental disorders the applicant’s condition was diagnosed as bipolar I disorder most recent episode manic; and crack cocaine, cannabis and alcohol abuse and dependence.

In a  4 February 1999 medical report a doctor indicated that the applicant had complained of respiratory problems.  Examination showed that he had a very light, occasional end expiratory wheeze particularly in the middle to upper lung fields.  Respiratory effort was non-labored, and there was no dullness to percussion or tactile fremitus.  His mood and affect appeared to be a little flat.  He was alert and oriented and responded to questions appropriately.  Chest      x-rays showed no acute infiltrates, effusions, or other abnormalities save for a few calcified granulomas.  His condition was diagnosed as asthma, probably of a mild persistent nature, and a possible reaction to a previous hepatitis vaccine.

On 17 March 1999 in testimony before a VA regional board, the applicant presented evidence regarding his original claim for service connected disabilities for lung condition including asthmatic condition, mental condition, arthritis of the right shoulder, and residuals of hepatitis A vaccine.  The applicant’s father and mother were present and the applicant’s father presented the case.  The applicant’s father then said that the reason for the hearing was that the nature of the bipolar disease was not reflected in the applicant’s medical records, and his military medical records were misleading in that they had been altered.  He stated that the information on the applicant’s entry medical examination was incorrect in that the applicant did not have persistent rales, nor first degree burns to his back, abdomen, buttocks, and thighs, but that was an injury to his wife when she was a child.  The applicant never received this type of injury.  The information on the 24 October 1997 radiological report was also incorrect in that the applicant never had pneumonia before he went into the service.  The applicant’s father then quoted from the applicant’s 14 February 1998 dissertation (summarized above).  He continued by saying that the applicant was in excellent physical condition prior to going to Germany as attested by his letter to his father while in basic training, in which the applicant had stated that he smoked his physical training test, and that it was the second highest [in his unit].  The applicant’s father stated that he put his girls and boys through physical training, and his son, the applicant, had no problems until he got to Germany.   

The applicant’s father equated the symptoms that the applicant had on              13 September 1996, i.e., stomach cramps, diarrhea, fever; with those reactions that the hepatitis A vaccine could cause.  His father discussed the mental stressors the applicant was having and his having to take a second hepatitis A shot, which amounted to medical malpractice.  And because of the fluid in his chest, which continued to this day, he was unable to complete his run.  The symptoms of bipolar were starting to manifest because of his physical and mental stress.  The applicant was sent to a psychiatrist, but the record is missing from his medical records.  The applicant started to drink , but never got into trouble, but was put into the alcohol abuse program.  He got so depressed, he stopped cleaning his room and his uniform, leading to counseling sessions.  Toward the end his son smoked marijuana.  The Army never did treat the applicant for his bipolar disorder, but elected to discharge him.  He questioned the shots, saying that the applicant should not have received a second shot if he was shown to be hypersensitive to the first shot.  The applicant was quiet and depressed after his discharge.  He would try to get him to see a psychiatrist, but it wasn’t until he became totally manic that he was able to get him into a hospital.  The VA refused to treat him.  The applicant’s father recounted the applicant’s tests after his discharge, indicating that the one examination indicated that he had possible reaction to a previous hepatitis vaccine, implying that that vaccine caused permanent damage to the applicant.  The applicant’s father stated that he requested a criminal investigation to investigate the altered medical records, altered to make the applicant look sick before he came in the Army.  The applicant’s father stated that VA medical examination showed no evidence of any burns that the applicant had.  The applicant’s father related his attempts to obtain information from the applicant’s first sergeant and sergeant major.  He provided information concerning his son’s present medical condition, and went on to relate how his son had been neglected while on active duty.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 9-2 of that regulation states, in effect, that a soldier enrolled in the alcohol and drug abuse prevention and control program may be separated because of inability or refusal to participate in, cooperate in, or successfully complete such a program when there is a lack of potential for continued Army service and rehabilitation efforts are no longer practical.
Paragraph 9-4 of the aforementioned regulation states that the service of soldiers discharged will be characterized as honorable or under honorable conditions.

Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

Army Regulation 635-40, paragraph 3-2b states in pertinent part that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  

That paragraph goes on to say that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties 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.

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

1.  The applicant's administrative separation for alcohol or other drug abuse rehabilitation failure was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights. The applicant consulted with counsel, stated that he understood the basis for the separation action, its effects, and the rights available to him.  He declined to make a statement in his own behalf. The character of the discharge is commensurate with the applicant's overall record of military service.

2.  It is not the policy of the Board to create or alter service medical records.  Such records merely reflect the observations and opinions of medical examiners at the time they were recorded.  Medical records made and kept by the Department of the Army are merely prima facie evidence of the existence of the fact or facts recorded. 

3.  Notwithstanding the protestations of the applicant, and the applicant’s father in the 17 March 1999 hearing before the VA board, service medical records do not indicate any medical condition incurred while entitled to receive basic pay which was so severe as to render the applicant medically unfit for retention on active duty.  At the time of the separation physical examination, competent medical authority determined that the applicant was then medically fit for retention or appropriate separation.  The applicant himself has stated that he was competent in performing his duties; and has admitted to drinking after having been placed on the alcohol and drug prevention and control program.   Accordingly, the applicant was separated from active duty for reasons other than physical disability.  The medical evidence of record indicates that the applicant was medically fit for retention at the time of his separation.  He has submitted no probative medical evidence to the contrary.  Furthermore, his continued performance of duty raised a presumption of fitness which he has not overcome by evidence of any unfitting, acute, grave illness or injury concomitant with his separation.

4.  The applicant did not have any medically unfitting disability which required physical disability processing.  Therefore, there is no basis for physical disability retirement or separation.

5.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.   

6.  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.

7.  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

___rvo___  ___eja__  ___ewl___  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999025513	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000308	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  177	108.00	
2.	110.00	
3.		
4.		
5.		
6.