IN THE CASE OF: BOARD DATE: 6 December 2016 DOCKET NUMBER: AR20150012969 BOARD VOTE: ___x_____ ___x___ ___x____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 6 December 2016 DOCKET NUMBER: AR20150012969 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army and Army National Guard records of the individual concerned be corrected by changing the reason for his discharge to Secretarial Plenary Authority; the authority for discharge to Army Regulation 135-178, chapter 14; and he met the Oregon Army National Guard service requirement. ___________x______________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. IN THE CASE OF: BOARD DATE: 6 December 2016 DOCKET NUMBER: AR20150012969 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests his Oregon Army National Guard (ORARNG) records be corrected to change the reason for his discharge from the ORARNG shown on his National Guard Bureau (NGB) Form 22 with a date of discharge of 5 January 1968 and to show that he completed his ORARNG service requirement. 2. The applicant states there was no justification for his medical discharge in his file prior to the Personnel Action Request (AGO Form 16), dated 26 December 1967, which was 4 months after he was told not to come to his monthly meetings because he was being discharged even though he did not want to be discharged. The medical condition used was that he suffered from severe bronchial asthma, which he never had in his entire life. 3. He was never diagnosed by a medical doctor nor even examined for the condition of severe bronchial asthma, which was the excuse used for his medical discharge. He was never prescribed any medicine to combat severe bronchial asthma either. He was never tested for severe bronchial asthma using any standard testing for such a condition. If any of those things were done, evidence of that should have been in his record and no such records exist in his file. There's not even a reference as to where and under what conditions his symptoms of severe bronchial asthma were observed. This is because he never had severe bronchial asthma. 4. Hay fever came up on several standard military medical questionnaire forms. He never had asthma but he did have hay fever. He did experience hay fever symptoms that were generally relieved by the use of over-the-counter (OTC) antihistamines. When he tried to work baling alfalfa he couldn't do it all day because his hay fever symptoms were too bad. He took the hay fever series of shots to build his resistance to the pollens he was most allergic to. He was tested for his reaction to various pollens and then received the series of shots needed to build his resistance to the three prime pollens he was allergic to: timothy grass, alfalfa, and ragweed. 5. He then went on to play football in high school and in college, almost always on grass, with no hay fever related problems. Occasionally, during the pollen season, if he had uncomfortable symptoms, he took OTC antihistamines which relieved his symptoms effectively. 6. In July 1967, during 2 weeks of active duty for training, he and another medic were assigned to follow some tanks in their ambulance in case they got hurt. They followed too close and were exposed to heavy amounts of dust. When they returned to camp they were pretty congested with hay fever like symptoms related mostly to the excessive dust. One of his eyes was almost swollen shut and he did have a wheeze in his breathing. At the end of the day he accidently met his commanding officer (CO) and upon looking at him the CO said he was going to give him a medical discharge when they got back. a. He only met his CO that one time in passing (perhaps 10 minutes) at summer camp which was not enough time for him to have made a diagnosis of him having "continuing severe bronchial asthma, completely debilitating in pollen season, not controlled by corticosteroids" as stated on the AGO Form 16. b. There was more dust than pollen in the air. c. He did not need to be relieved from his duty of following the tanks that day. The next day he performed his next duty assignment following "rat patrol jeeps" and all other duties as assigned during summer camp with no problems. d. Whatever condition his CO observed in his 10-minute encounter with him, it was not severe enough to cause him to not complete that day's duty assignment nor his duty assignments for any other day, nor to have been restricted from duties during his 6 months of active duty. 7. The applicant provides: * a nine page self-authored statement * a Standard Form (SF) 88 (Report of Medical Examination), dated 9 July 1966 * an SF 89 (Report of Medical History), 15 February 1967 * an SF 88, dated 16 December 1967 * newspaper articles showing his football career * a letter, dated 5 July 2014, from his brother * a letter, dated 6 July 2014, from Mr. S * a letter, dated 24 July 2014, from the Deputy Chief of Staff for Personnel, Joint Force Headquarters, ORARNG * a letter, dated 22 August 2014, from Dr. B, Central Utah Clinic, Payson Department of Internal Medicine, Payson, UT CONSIDERATION OF EVIDENCE: 1. 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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. On 9 July 1966, the applicant enlisted in the ORARNG for 6 years. 3. The applicant's SF 88, dated 9 July 1966, completed for the purpose of enlistment, did not show any notations concerning asthma or hay fever and showed he was qualified for duty. 4. He completed a period of active duty for training from 24 October 1966 - 14 March 1967. He was awarded military occupation specialty (MOS) 91A (Medical Corpsman). 5. On an SF 89, dated 15 February 1967, the applicant completed item 20 (Have you ever had or have you now). He checked "Yes" for hay fever and "No" for asthma. 6. The applicant's SF 88, dated 15 February 1967, completed for the purpose of separation, did not show any notations concerning asthma or hay fever and showed he was qualified for separation. 7. The applicant's SF 88, dated 16 December 1967, stated in Notes: Severe allergic diathesis (a predisposition to develop one or more of hay fever, allergic rhinitis, bronchial asthma, or atopic dermatitis) requiring daily corticosteroid and antihistamine drugs to control. Item 73 (Notes and significant or interval history) states "continuing severe bronchial asthma, completely debilitating in pollen season, not controlled by corticosteroid." The form indicates he was not qualified for National Guard duty. 8. An AGO Form 16, dated 26 December 1967, is a request from the applicant's unit to discharge him by reason of physical disability not a result of ARNG service. The form noted he had continuing severe bronchial asthma, completely debilitating in pollen season, not controlled by corticosteroids, and referenced paragraph 3-25a of Army Regulation (AR) 40-501 (Standards of Medical Fitness). 9. On 5 January 1968, the applicant was discharged from the ORARNG. Item 31 (Reason and Authority for Discharge) of his NGB 22 contains the statement: "Found to be physically disqualified for retention in the ARNG due to severe bronchial asthma not incident to ARNG service, para 9, SO AR-4, Mil Dept, Oregon, dtd 5 January 1968." He had completed 1 year, 5 months, and 27 days of service. 10. In a letter, dated 5 July 2014, the applicant's brother stated the applicant never had asthma nor was he ever diagnosed with it. He had hay fever in his younger years. During his high school days he played football and he was given a full scholarship to the University of Missoula (sic) to play football. He played all 4 years and graduated. He has seen his brother many times throughout the years and he has never shown any signs of asthma. 11. In a letter, dated 6 July 2014, Mr. S stated he had never seen any signs of asthma in the applicant. All through the years he has known the applicant he had never seen any signs of asthma. 12. In a letter, dated 24 July 2014, the Deputy Chief of Staff for Personnel, Joint Force Headquarters, ORARNG, notified the applicant the Adjutant General was unable to direct a change to his reason for separation under the authority delegated by the Chief, NGB, and the Secretary of the Army. 13. In a letter, dated 22 August 2014, Dr. B, Central Utah Clinic, Payson Department of Internal Medicine, Payson, UT, stated the applicant had never had any evidence in the past or present of having asthma. 14. On 15 August 2016, an advisory opinion was received for this case from the Department of the Army, William Beaumont Army Medical Center, El Paso, TX. a. The Army Review Boards Agency requested an advisory opinion as to whether the applicant required correction to his military record in the form of a Medical Evaluation Board and Physical Evaluation Board for the diagnosis of severe bronchial asthma as the cause for his discharge from the ORARNG in 1967. All records, including personal statements by the applicant, DD Form 149 (Application for Correction of Military Record), support letter from Dr. B, dated August 2014, report of medical exam dated 16 December 1967, personnel action request dated 1967, report of separation dated 5 January 1968, enlisted qualification record, physical disability document 1968, report of medical exam 1967 (evaluation for retention), enlistment exam dated 9 July 1966 and other medical documents. b. The Soldier's information obtained from records reviewed revealed that he was medically discharged with a diagnosis of severe bronchial asthma in accordance with AR 40-501, chapter 3, in 1967. Of importance is that in his history, the Soldier referred to having a history of hay fever since young that was treated with immunotherapy and had sporadic symptoms requiring use of OTC antihistamines, especially during exposure to pollens (alfalfa, timothy grass, and ragweed). c. He was asymptomatic during his military training until exposed to dust and tank emissions apparently during summer training in July 1967. There is no evidence in the records provided of him being seen by any military treatment facility (MTF) during this period or being referred for any medical evaluations, except for a discharge exam stating the diagnosis of severe bronchial asthma, non-responsive to corticosteroids or antihistamines, which the Soldier denies to have received. d. Additional evidence the Soldier provided indicates that he has never been diagnosed with asthma or received any treatment for this condition and that he has a history of hay fever controlled most of the time that permitted him to be an active sports participant as a football player (see newspaper clippings provided as evidence). In his exam he reported a positive family history either for hay fever and/or asthma in his relatives (father and uncle). There are no other records provided for this reviewer. His clinical evaluation (Form 88-119) reported lungs and chest and included a PULHES of 411111 on his discharge exam. Of note, the Soldier reported that he could pass the Army Physical Fitness Test (APFT). He could not re-enlist due to the diagnosed condition without any evidence by history provided and physical findings on his medical forms. e. Allergic rhinitis (also known as hay fever) may be seasonal (spring, summer, or early fall) or perennial (all year round). Some patients will get worse during the pollen season or they may have it during exposure to irritants such as dust, diesel exhaust, etc. (as in this case). Control of symptoms could be achieved by avoiding exposure, use of antihistamines, OTC decongestants, immunotherapy, steroids, etc. The diagnosis of this condition is made by the history, use of skin tests, and medical exam. f. The term "severe asthma" is used when the asthma is still insufficiently controlled after exclusion or treatment of any complicating factors specifically after failing steroid therapy (inhalants, orally or use of other controllers). The diagnosis requires a confirmed diagnosis of asthma and being managed adequately by a specialist in asthma (not evidenced in this case). Although patients with a family history of allergies are prone to suffer asthma (atopic) as in this case, there was no history or symptoms addressed that could help this case be diagnosed as suffering from this condition. g. Review of the Department of Defense (DOD) electronic medical record (AHLTA), HAIMs, and Department of Veterans Affairs (VA) records did not show any evidence of this Soldier being treated at an Army MTF for any of the conditions addressed. h. The applicant's diagnosis was not confirmed; either by medical history, physical exam, or pulmonary function tests available by 1967, and the severity addressed was not in accordance with his own history provided and in his sport history provided as additional evidence of his medical condition at that time. Therefore, correction of his record should be considered and re-evaluation for any pulmonary or active allergic disease subsequent to his active military status during 1967 - 1968. i. The applicant was ineligible for a Medical Evaluation Board for his respiratory problems. The respiratory problems as noted and described were not adequately addressed to meet procurement standards under AR 40-501, Chapter 3. 15. On 16 August 2016, the applicant was provided the above advisory opinion for comment/rebuttal. On 24 August 2016, the applicant provided comments to the advisory opinion. The advisory opinion agreed with his assessment of being wrongly discharged from the ORARNG because: a. He did not, at the time of discharge, or at any other time in his life, have severe bronchial asthma, but rather he had simple hay fever, easily treated by OTC antihistamines. b. He was never appropriately medically evaluated for the condition sited in his discharge papers and therefore, by definition, he was wrongly discharged. c. His well documented history was evaluated, in the "opinion," to be sufficient to show that his condition was in no way debilitating. Even on the evening the ORARNG Medical Officer observed his condition, he had completed his assigned duties for the day and was ready by the next morning to continue his service related assignments and did so the rest of Summer Camp. 16. He hopes that this will result in honoring his requested discharge modification to show that he did complete his ORARNG service requirement. REFERENCES: 1. AR 40-501, in effect at the time, chapter 3 (Retention Medical Fitness Standards) set forth the various medical condition and physical defects which may have render a member unfit for further military service. a. Paragraph 3-3 stated members with conditions listed in this chapter were evaluated by a medical board and were referred to a physical evaluation board (except for members of the Reserve Components not on active duty). b. Paragraph 3-25a addressed bronchial asthma associated with emphysema of sufficient severity to interfere with the satisfactory performance of duty, or with frequent attacks controlled only by continuing corticosteroid therapy, or with frequent attacks not controlled by other oral medication 2. AR 135-178 (Army National Guard and Army Reserve, Enlisted Administrative Separations), chapter 14 (Secretarial Plenary Authority) states separation under paragraph 14-1 (Basis) is the prerogative of the Secretary of the Army. Secretarial plenary separation authority is exercised sparingly and seldom delegated. Ordinarily, it is used when no other provision of this regulation applies, and early separation is clearly in the best interests of the Army. Separations under this chapter are effective only if approved, in writing, by the Secretary of the Army or approved designee as announced in updated memoranda. DISCUSSION: 1. The reason for the applicant's discharge was physical disqualification for retention due to severe bronchial asthma. However, a diagnosis of asthma was not confirmed by medical history, physical exam, or pulmonary function tests available by 1967, and the severity addressed was not in accordance with his own history provided and in his sport history provided as additional evidence of his medical condition at that time. 2. The evidence indicates the reason and authority for discharge shown on his NGB Form 22 were not supported by the medical evidence available at the time. No other provision of AR 135-178 applies in this case; however, the Board may consider changing the reason for the applicant's discharge to Secretarial Plenary Authority under the provisions of AR 135-178, chapter 14. 3. The applicant was discharged after serving 1 year, 5 months and 27 days in the ORARNG. The evidence does not appear to provide a basis for crediting him with time he did not actually serve. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150012969 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150012969 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2