MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:             6 January 2000                 
	DOCKET NUMBER:    AR1999028324

	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. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Mr. Edward Williamson		Chairperson	
	Mr. Stanley Kelley		Member	
	Mr. Allen L. Raub		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 discharge for unsuitability be corrected to a medical retirement.

APPLICANT STATES:  That he began having physical problems in basic combat training, but the Army physicians were unable to diagnose his problem and repeatedly returned him to duty.  After a lieutenant was caught kicking him when he was having a seizure, he was given “every dirty little detail they could find.  They harassed me constantly, and even turned my friends against me.  Telling them that I was a fake and a gold brick.”  When this was occurring he was offered a general discharge and was told he could come back into the service after several years when he got himself straightened out.  He gladly accepted that discharge due to the harassment he was receiving and physical problems.  However, when he later tried to enlist in the ARNG, he was told he could not because of the type of discharge he received.  He then petitioned the Army Discharge Review Board (ADRB) to upgrade his discharge, a request which was approved.  He then realized he had received the “proverbial shaft.”  Approximately 10 years after he was discharged, in the late 1960’s, he was diagnosed as having Narcolepsy and Cataplexy, two extremely rare conditions, which another trainee had been diagnosed as having while he was on active duty and given a medical discharge.

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

He enlisted in the Regular Army on 29 March 1960.  While in BCT his commander initiated action to separate him for unsuitability.  That recommendation was based on his unsatisfactory performance of training, unsubstantiated complaints of ill health, repeatedly going on sick call, sloppy appearance and sloppy personal hygiene.

In conjunction with that recommendation the applicant was given a mental status evaluation in which he was diagnosed as having an inadequate personality manifested by ineptness, poor physical coordination, dull intellectual capacity, chronic enuresis, stuttering, and immature judgment with emotional outbursts of crying and shaking.  The psychiatrist concluded that the applicant did not have any medically disqualifying condition but should be considered for administrative separation for unsuitability.

The applicant waived his rights in conjunction with his commander’s recommendation and was given a general discharge for unsuitability on 28 April 1960.  He had exactly 1 month of active service.

On 18 March 1964 the ADRB upgraded the applicant’s general discharge to fully honorable.  The ADRB did not specify the reason for its decision.

Army Regulation 600-8-1, paragraph 41-8 states, in pertinent part, that if an existing prior to service (EPTS) condition was aggravated by military service, the finding will be in line of duty.  If an EPTS condition is not aggravated by military service, the finding will be not in line of duty, EPTS.  Specific findings of natural progress of the pre-existing injury or disease based on well established medical principles alone are enough to overcome the presumption of service aggravation.

Army Regulation 635-40 provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board.  Those members who do not meet medical retention standards will be referred to a physical evaluation board (PEB).  If the PEB determines that an individual is physically unfit, it recommends the percentage of disability to be awarded which, in turn, determines whether an individual will be discharged with severance pay or retired.  Paragraph 4-19b states that a PEB may decide that a soldier’s physical defect was EPTS, but must then determine whether the condition was aggravated by military service.  If the PEB determines that a soldier has an unfitting EPTS condition which was service aggravated, the PEB must determine the degree of disability that is in excess of the degree existing at the time of entrance into the service.  The method of determining the percentage of disability to be awarded in such cases is outlined in appendix B, item B-10 of this regulation.  

The Court of Claims and the Comptroller General of the United States have held that short periods of active duty do not give rise to the presumption of the cause of an illness or disease.

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

1.  The applicant has not provided the Board any documentation which would substantiate his claim of having rare medical disorders.  However, even if he did a diagnosis 10 years after his discharge would not necessarily indicate that he had that condition when he was on active duty.

2.  In addition, even if his medical disorders had existed and been diagnosed while he was on active duty, in all likelihood they would have been considered to have been EPTS and, therefore, not a basis for a medical retirement.  

3.  The fact that the ADRB upgraded the applicant’s discharge does not in any way indicate that his discharge was improper.  The ADRB may upgrade a discharge based on equity as well as error.
4.  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

_ew_____  _sk_____  _alr_____  DENY APPLICATION

Karl F. Schneider
Director, Army Review Board Agency

INDEX

CASE ID	AR1999028324	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000106	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	108.04	
2.		
3.		
4.		
5.		
6.