APPLICANT REQUESTS:  That he be medically retired.

APPLICANT STATES:  Prior to being mobilized for Operation Desert Storm, he was in excellent physical health, performing physical training daily, passing all of his Army Physical Fitness Tests (APFT’s), and performing his duties in an exemplary manner.  When he was mobilized, he passed a medical screening but his health deteriorated when he was in Saudi Arabia, having been exposed to contaminants, pollution, unsanitary living conditions, severe temperature extremes, sandy/dusty climate, and severe, prolonged stress.  He was evacuated back to the United States when he fractured his spine when using improper lifting procedures.  While in the United States, he complained of shortness of breath, fatigue, frequent indigestion, chronic cough and recurrent back pain, but no reference was made of those problems in his medical records and he was not retained on active duty for consideration by a medical evaluation board (MEB).  Accordingly, he was released from active duty (REFRAD) and returned to his Army National Guard (ARNG) unit.  In a physical examination he underwent 34 days after his REFRAD, he was determined medically disqualified due to numerous medical defects.  His medical disqualification was confirmed by an MEB in 1992 which resulted in his referral to a PEB.  The PEB, however, found him physically fit for duty.  He believes that the PEB’s findings were based on a physical profile in effect at that time.  However, after the PEB hearing that profile was modified to increase his physical restrictions.  He decided not to appeal the decision of the PEB because of a line of duty (LOD) investigation finding that his medical defects were not incurred in line of duty, that they existed prior to service (EPTS).  However, upon appeal, that line of duty finding was modified to EPTS with service aggravation.  His medical defects then resulted in his failure to be selected for retention by a Qualitative Retention Board (QRB), which resulted in his discharge from the ARNG and the loss of his civilian job, which required membership in the ARNG as a condition of employment.  The applicant contends that his REFRAD and subsequent discharge from the ARNG were in contravention with Department of Defense policy which requires individuals with Persian Gulf War Syndrome to be retained on active duty and medically retired.

In support of his application he submits a document from the Social Security Administration in which he was informed that he had been awarded $377.70 a month in disability benefits.  He also submits a memorandum from the Under Secretary of Defense which states that “. . . no Service member who shows symptoms identified with Persian Gulf illness [will] be retired or separated unless . . . the member can be medically retired or separated through the disability system with an established diagnosis recognized by the Veterans Administration’s Schedule for Rating Disabilities (VASRD).”

EVIDENCE OF RECORD:  The applicant's military personnel and medical records show:

While serving in the ARNG as a chief warrant officer 3, quartermaster corps, on 4 February 1991 the applicant was ordered to active duty in support of Operation Desert Storm.  He served in Saudi Arabia during Operation Desert Storm.

On 27 August 1991 the applicant was given a separation physical examination in conjunction with her REFRAD after the conclusion of Operation Desert Storm.  At that time he reported that he had fractured his spine in Saudi Arabia and had also been diagnosed as having bronchitis.  He also reported that for three months his knee had felt like it was going to give out.  Despite those complaints, he was determined medically qualified to be REFRAD.  Accordingly, on 14 October 1991 he was honorably REFRAD and returned to his ARNG unit.

On 19 November 1991 the applicant was given a physical examination to determine whether he could participate in physical training since he was over 40 years old.  During that examination the applicant admitted that he had been smoking cigarettes since 1955 and currently (at that time) smoked 1 1/2 packs of cigarettes a day.  The applicant was also determined to have an elevated cholesterol level of 282 milligrams.  Although he was determined to be medically qualified for retention, he was found unfit to participate in physical training.

On 31 August 1992 the applicant was given a physical examination in preparation for a medical board.  He was diagnosed as having coronary artery disease and determined medically disqualified for retention.

On 1 October 1992 an LOD investigation was initiated on medical conditions that the applicant contended were the proximate result of his performance of active duty.  On 26 October 1992 a formal LOD investigation was completed, with a recommendation that the applicant’s cardiovascular disease, compression fracture and obstructive pulmonary disease be considered to have been incurred in LOD.  However, the National Guard Bureau (NGB) found that the applicant’s cardiovascular disease and obstructive pulmonary disease were EPTS and not aggravated by service.  The NGB approved the applicant’s compression fracture as being in the LOD.  The NGB later amended its ruling to show that the applicant’s EPTS conditions were service aggravated.

On 13 January 1993 a MEB was convened and diagnosed the applicant as having coronary artery disease, one vessel, with preserved left ventricular ejection fraction; stable exertional angina; compression fracture with subsequent low back pain; chronic impingement syndrome, bilateral shoulders; right lateral cutaneous femoral neuropathy (functional disturbances and/or pathological changes in the peripheral nervous system of the thigh), gastroesophageal reflux disease, hypercholesterolemia, mild; and benign prostatic hypertrophy (inflammation and overgrowth of the prostate).  In the MEB’s written consideration, it was noted that the applicant demonstrated a 75 percent obstruction in the first diagonal during a cardiac catheterization in January 1992.  At the time the MEB convened, he had a physical profile which only limited him in one of six functional areas.  That profile only precluded him from taking the APFT and from overhead lifting in excess of 15 pounds.

On 2 February 1993 a PEB convened and determined that the applicant was fit for duty.

On 19 February 1993 the  applicant was given a new physical profile which added the limitations of no physical training, no mandatory physical activity, no lifting over 10 pounds, no crawling, stooping, jumping, running, or marching over 5 minutes, and no overhead work.

On 1 September 1994 the applicant was notified that he had been considered but not selected for retention by a QRB.  Accordingly, he was honorably transferred to the Retired Reserve effective 31 October 1994.  He had a total of 36 years, 11 months and 25 days of military service.

Army Regulation 600-8-1, paragraph 41-8 states, in pertinent part, that if an 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, the regulation which governs PEB’s, 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.

Title 10, U.S. Code, chapter 61, Retirement or Separation for Physical Disability, provides for the medical retirement and for the discharge for physical unfitness, with severance pay, of soldiers who incur a physical disability in the line of duty while serving on active or inactive duty.  However, the disability must have been the proximate result of performing military duty.

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

1.  There is no evidence that either the applicant’s cardiovascular disease or his obstructive pulmonary disease were incurred, or aggravated to any significant degree, while he was on active duty.  It appears more likely that the applicant’s 35 year plus history of smoking cigarettes and his high cholesterol caused these problems.

2.  As such, the Board considers the NGB’s LOD finding that the applicant’s cardiovascular and obstructive pulmonary diseases were EPTS to have been an accurate assessment.

3.  In addition, a PEB determined that he was fit for duty.  The applicant has not contested the validity of his MEB which was the basis for the PEB.  Since the PEB is required to consider each physically unfitting defect found by the MEB, his medical condition must be considered to have been accurately established at that time.  Although the applicant’s physical profile limitations were increased following his PEB, he did not use that change in physical profile to contest the decision of the PEB  To the contrary, he served with his unit for over 1 1/2 years after he was found fit for duty.  There is no evidence that he contested the PEB’s finding that he was fit for duty until after he was separated due to his failure to be selected for retention by a QRB.

4.  The Under Secretary of Defense’s policy on service members who exhibit symptoms of Persian Gulf illness requires these individuals to be considered by a medical board before allowing their administrative separation for other reasons.  The applicant was considered by both an MEB and a PEB, and found to be fit for duty.  As such, he was subject to separation under the rules and regulations prescribed by the Secretary and the Adjutant General of his state ARNG.  As such, the Under Secretary’s directive is considered to have been complied with in this case.

5.  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

                       DENY APPLICATION




						Karl F. Schneider
						Acting Director