MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           16 October 2001                   
	DOCKET NUMBER:   AR2001060424

	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. Carl W. S. Chun		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Ms. Regan K. Smith		Member	
	Mr. Donald P. Hupman, 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:  That his Certificate of Release or Discharge from Active Duty, DD Form 214, be corrected to show he was medically retired.

APPLICANT STATES:  That he was on convalescent leave at the time of his discharge recovering from an attack of diverticulitis.  He was never advised of his rights to a medical retirement or given due process.  The authority and reason  for discharge is shown as paragraph 8-26I, National Guard Regulation (NGR) 600-200.  This regulation is talking about a bar to reenlistment due to overweight, Army Physical Fitness Test (APFT) failure, or a positive urinalysis.  He had failed a part of the APFT but he was on a medical profile during the period the APFT re-test was an issue.  

EVIDENCE OF RECORD:  The applicant's military records are not available.  Information contained herein was obtained from alternate sources.

The applicant enlisted in the Army National Guard on 27 May 1983.  He entered active duty apparently in an active guard/reserve (AGR) status on 16 May 1985.  

The applicant was hospitalized from 7 – 14 May 1998 with a discharge diagnosis of acute diverticulitis with probable localized contained small perforation.

On 26 May 1998, the applicant was released from active duty (REFRAD) upon the completion of his required active service.  The separation authorities listed on his DD Form 214 were Army Regulation 635-200 and NGR 600-5.

On 26 May 1998, the applicant was discharged from the Army National Guard and as a Reserve of the Army.  The Report of Separation, NGB Form 22, shows the separation authority and reason for discharge as NGR 600-200, paragraph  8-26i.

A medical document dated 26 June 2000 indicates that the applicant was being followed for bipolar disorder and he reported that he was treated in service for depression.  

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 4 states that a soldier enlisted or ordered to active duty normally will be discharged or REFRAD on the date he or she completes the period for which enlisted or ordered to active duty.

NGR 600-200, paragraph 8-26i refers to Army Regulation 135-178 (Reserve Component Enlisted Separations), chapter 11.  Chapter 11 discusses separations for expiration of service obligation or expiration of term of service which includes soldiers who are barred from reenlistment or flagged or otherwise not eligible for reenlistment.
NGR 600-5 prescribes policies and procedures for the management of Army National Guard soldiers in the AGR Program who serve on Full-Time National Guard Duty.

Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability.  The regulation defines “physically unfit” as unfitness due to physical disability.  The unfitness is of such a degree that a soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  It states that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  To ensure all soldiers are physically qualified to perform their duties in a reasonable manner, medical retention qualification standards have been established in Army Regulation 40-501, chapter 3.  These guidelines are used to refer soldiers to a Medical Evaluation Board (MEB).  

Army Regulation 40-501 governs medical fitness standards for enlistment, retention, and separation.  Paragraph 3-5 lists the causes for referral to an MEB for abdominal and gastrointestinal defects and diseases.  Diverticulitis is not listed as a cause for referral to an MEB.  Paragraph 3-32 lists the causes for referral to an MEB for affective disorders (mood disorders).  It states that the causes for referral to an MEB are persistence or recurrence of symptoms sufficient to require extended or recurrent hospitalization, necessity for limitations of duty or duty in protected environment or resulting in interference with effective military performance.

The Diagnostic and Statistical Manual of Mental Disorders, fourth edition classifies depression and bipolar disorders as mood disorders.

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.  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 this requirement.

2.  Neither diverticulitis nor depression (or bipolar disorder) disqualify a soldier from retention in the service.  There is no evidence to show the applicant’s depression resulted in extended or recurrent hospitalization for treatment while on active duty or that it prevented him from effectively performing his military duties.  Therefore, he was not eligible for referral to an MEB or a medical separation.

3.  Normally, a soldier will be discharged or REFRAD on the date he or she completes the period for which enlisted or ordered to active duty.  Reenlistment is a privilege, not a right.  In the absence of evidence to the contrary, the Board presumes that the applicant was properly REFRAD and separated by the Army National Guard upon the completion of his expiration term of service.

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

__rvo___  __rks___  __dph___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2001060424	
SUFFIX		
RECON		
DATE BOARDED	20011016	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	108.00	
2.		
3.		
4.		
5.		
6.