RECORD OF PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            12 FEBRUARY 2004                  
	DOCKET NUMBER:   AR2003091941

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

	Mr. Carl W. S. Chun		Director	
	Mr. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Ms. Joann H. Langston		Chairperson	
	Mr. Lester Echols		Member	
	Mr. Robert J. Osborn II		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant is either requesting physical disability retirement or discharge; or that his discharge under other than honorable conditions be upgraded to honorable or general.

2.  The applicant states that he served in Vietnam and was exposed to Agent Orange, the symptoms of which have recently shown up.

3.  The applicant provides letters of support from three individuals who attest to his good character.  He also provides copies of medical documents showing his treatment for various ailments at the Princeton Trover Clinic in Eddyville, Kentucky.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an injustice which occurred on        27 July 1972.  The application submitted in this case is dated 6 May 2003.  

2.  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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant enlisted in the Army for three years on 11 February 1970, completed basic combat training, and in April 1970 was assigned to Fort Leonard Wood, Missouri for advanced training.  He was AWOL (absent without leave)  from 1 May 1970 to 11 July 1970, and on 12 August 1970 was arraigned, tried, and found guilty of AWOL by a special court-martial which convened at Fort Leonard Wood.

4.  The applicant completed his training at Fort Leonard Wood and in October 1970 was assigned to a transportation company in Vietnam as a truck driver.  On 9 October 1971 the applicant received nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) for disobeying a lawful order.

5.  The applicant completed his tour of duty in Vietnam and was assigned to Fort Riley, Kansas.  He was AWOL from 3 February 1972 to 9 February 1972, and on 10 February 1972 received nonjudicial punishment for failure to go to his place of duty and for AWOL for the above-mentioned period.  

6.  The applicant was AWOL from 22 February 1972 until his return to military control on 25 June 1972.     

7.  In an undated endorsement, the applicant's commanding officer recommended approval of the applicant's request for discharge for the good of the service.  The applicant's request, however, is not available to the Board.  

8.  On 24 July 1972 the separation authority approved the request for discharge for the good of the service.  He was discharged on 27 July 1972 under the provisions of Army Regulation 635-200, chapter 10, under conditions other than honorable.  He had 1 year, 10 months, and 25 days of service, and 204 days of lost time.  

9.  The applicant's medical records show that he was treated for possible viral gastroenteritis while in Vietnam.  A December 1971 medical record shows that the applicant indicated a history of heart murmur and rheumatic fever in childhood.  Prior to his discharge, the applicant underwent a medical examination.  The 30 June 1972 report of that examination shows that the applicant was medically qualified for separation with a physical profile serial of    1 1 1 1 1 1.  In the report of medical history that the applicant furnished for that examination, he stated that his health was good.

10.  The medical documents that he submits with his request show that he was treated at the Trover Clinc from December 1999 through April 2003 for a variety of injuries and ailments.  He was seen on six occasions because of a slowly healing fracture to his left foot.  In January 2000 he was diagnosed with diabetes. Medical checkups show that he was followed up for epilepsy, diabetes, chronic hepatitis C with cirrhoses, and C-spine degenerative disc disease.  Those checkups for the most part indicated that those conditions were controlled, compensated, and stable; however, in December 2002 his diabetes was determined to be out on control because of the applicant's poor compliance with his diet.  The documents show that he had a head cold and stomachache in August 2000, a rash in September of that year, and influenza in February 2001.  In April 2001 he was seen because a grand mal seizure disorder.  In April 2002 he was treated for rectal bleeding, caused by internal hemorrhoids.  A                24 January 2003 medical checkup indicated that, except for his diabetes, his conditions were controlled, compensated, and stable.  He was treated for a right knee sprain on 2 April 2003.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

12.  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.

13.  Army Regulation 40-501, then in effect, provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.

14.  Army Regulation 635-40, then in effect, 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.  

15.  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.

16.  Army Regulation 635-40 also states that an enlisted Soldier may not be  referred for, or continue, physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service of under other than honorable conditions.

17.  Paragraphs from the Department of Veterans Affairs (VA) web site are quoted:  

"Agent Orange was a herbicide used in Vietnam to defoliate trees and remove cover for the enemy.  Agent Orange spraying missions were flown in Vietnam between January 1965 and April 1970.  Shipped in orange-striped barrels, it was a reddish-brown liquid containing four chemicals:  2,4,5-trichlorophenoxyacetic acid (2,4,5-T), 2,4-dichlorophenoxyacetic acid (2,4-D), cacodylic acid and picloram.  The 2,4,5-T was contaminated in the manufacturing process with dioxin.  Several herbicides were sprayed in Vietnam at different times—during different years as well as during different seasons because of the variety of vegetation and environmental conditions."

"As with other veterans, Vietnam veterans with disabilities incurred or aggravated by military service may receive monthly VA compensation.  As knowledge has grown from studies of Agent Orange, some diseases that may not have become evident in service have been recognized as service-connected.  Based on clinical research, the following diseases are now on VA's Agent Orange list:  chloracne, Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, porphyria cutanea tarda, respiratory cancers (lung, bronchus, larynx and trachea), soft-tissue sarcoma, acute and subacute peripheral neuropathy, prostate and adult-onset diabetes."

18.  Although any of the above mentioned diseases may have had their inception in Vietnam, an individual can only be referred for disability processing if the signs and symptoms of a disease are so severe, at the time of the individual's military service, that the individual is rendered unable to perform the duties of his office, rank, grade, or rating as required by law (title 10, United States Code, chapter 61).  Accordingly, the Board has been advised by the Office of The Surgeon General that all questions concerning herbicide exposure in Vietnam should be addressed to the VA.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it is presumed that the applicant requested discharge in lieu of trial by court-martial and that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with his overall record. 

2.  The applicant's good post service conduct, as indicated in the letters of support that he furnishes with his request, is duly noted.  However, in view of the applicant's numerous acts of misconduct, upgrading his discharge as he requests is not warranted. 

3.  The applicant did not arrive in Vietnam until October 1970, months after spraying missions of Agent Orange ceased.  Nonetheless, 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.  Nevertheless, he could not be referred for physical disability processing because of the nature of his separation.  There is no basis for physical disability retirement or separation.
5.  Records show the applicant should have discovered the error or injustice now under consideration on 27 July 1972; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 26 July 1975.  However, the applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__JHL___  __LE ___  __RJO __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented and the merits of this case are insufficient to warrant the relief requested, and therefore, it would not be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  

		___Joann H. Langston______
		        CHAIRPERSON

INDEX

CASE ID	AR2003091941	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20040212	
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.	108.00	
2.	110.00	
3.		
4.		
5.		
6.