APPLICANT REQUESTS:  In effect, the applicant requests physical disability retirement or separation.

APPLICANT STATES:  The applicant made no statement to this Board, however, based on a letter from the applicant’s lawyer to the Army Discharge Review Board (ADRB), protesting the decision of that board, the applicant apparently feels that he is entitled to physical disability retirement or separation. 

COUNSEL CONTENDS:  In effect, counsel states that the ruling by the ADRB is incomprehensible considering that the National Guard had disregarded all regulations in discharging a medically unfit soldier.  Counsel states that evidence requested from the applicant by the ADRB could not be produced because the National Guard did not follow proper procedures, therefore, there is no available evidence.  Counsel states that neither the National Guard or any other Armed Forces agency performed a medical evaluation on the applicant, consequently, there are no documents available (COPY OF COUNSEL’s LETTERS TO THE ADRB IS ATTACHED).

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

The applicant served on active duty for two years, was separated from that duty in 1956, served in the Army Reserve Reinforcement Control Group for six years, and enlisted in the Army National Guard in 1974, where he served continuously until his discharge in 1991.

A 27 August 1989 report of medical examination indicates that the applicant was qualified for retention with a waiver with a physical profile of 1 1 1 3 2T 1.

A 4 February 1991 medical record shows that the applicant was admitted to Madigan Army Hospital in Tacoma, Washington, and was discharged to duty with a diagnosis of a rapid heart beat (paroxysmal, supra ventricular tachycardia).  That record indicates that the applicant must remain in the country for ready access to medical care until follow up appointment after trial of normal activity - to be evaluated following fit for duty at that time.  A note on that record authorized separation from the ARNG because of the aforementioned diagnosis per authority of the assistant state surgeon, Utah Army National Guard.

On 14 February 1991 the applicant was released from active duty not by reason of physical disability at Fort Lewis, Washington, and assigned to the Utah Army National Guard.  NOTE:  A letter from the UTARNG State Judge Advocate to the applicant’s counsel on 19 March 1993 indicates that the applicant had been mobilized with his unit in support of Operation Desert Storm/Desert Shield and was sent to Fort Lewis.  A medical evaluation at Madigan Hospital determined that the applicant was not deployable due to his heart condition, and that his condition was not service connected. No line of duty investigation was conducted.  That official indicated to the applicant’s counsel that the applicant’s medical records were not available.

The applicant, in a handwritten statement dated 
19 February 1991, said that he would like to be released from the Utah Army National Guard because of his health condition.

On 1 March 1991 the applicant was discharged from the ARNG and as a Reserve of the Army under the provisions of NGR 600-200, paragraph 8-26y, because he was medically unfit for retention.  He had 24 years, 2 months, and 19 days of total service for pay.  However, a ARNG retirement points history statement of 1 January 1997 indicates that the applicant had only 18 years, 2 months, and 24 days of creditable service for retired pay.

On 30 September 1996 the Army Discharge Review Board, in an unanimous opinion, denied the applicant’s request to change his discharge, simply stating that the board must assume administrative regularity when confronted with a file that is incomplete, or lacking in specific facts and procedures.   
In the processing of this case an advisory opinion (COPY ATTACHED) was obtained from the Army National Guard.  An official of that agency stated that the applicant’s file was reviewed by an official in the National Guard surgeon’s office, who concluded that the applicant did not meet the criteria for a medical discharge in accordance with Army Regulation 635-40, in that his physical disability was not incurred or aggravated in service.   

Army Regulation 635-40, paragraph 3-2b(1), provides 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.
Army Regulation 635-40, paragraph 3-2b(2), provides that when a member is being separated by reason other than physical disability, his or her continued performance of assigned duty commensurate with his or her rank or grade until he or she is scheduled for separation or retirement creates a presumption that he or she is fit.  This presumption can be overcome only by clear and convincing evidence that he or she was unable to perform his or her duties for a period of time 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.

National Guard Regulation 600-200, chapter 8, prescribes guidelines, criteria, and procedures for the discharge from the Army National Guard of enlisted soldiers.  Paragraph 8-26y states, in pertinent part, that a soldier will be discharged if found medically unqualified for retention, and that if a commander suspects a soldier may not be medically qualified for retention, he will direct the soldier to undergo a medical examination.  A complete medical examination will be accomplished and the results forwarded to the unit commander for disposition.  If retention is not recommended, a request for discharge will be submitted to the State Adjutant General.

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(s), it is concluded:

1.  Notwithstanding the presence, or possible presence of the applicant’s heart condition, there is no evidence of record that the applicant suffered from any illness that was incurred or aggravated by his military service.  There is no evidence of record to show that the applicant suffered any illness at the time of his separation that was of such  severity that he was rendered unable to reasonably perform the duties of his office, grade, rank or rating.

2.  The applicant was released from active duty not by reason of physical disability.  Therefore, service while on active duty was not interrupted by physical disability.  His medical condition was not caused or aggravated by his military service.  This conclusion is supported by the opinion from the National Guard Bureau.

3.  The applicant was discharged from the Army National Guard because he was not medically qualified for retention because of an unspecified medical condition.  There are no medical records available that provide a basis for this discharge; however, in the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with applicable law and regulations. The Board notes that the applicant requested to be discharged because of health reasons.  The Board presumes administrative regularity in the processing of the applicant’s discharge.  This Board has considered counsel’s comments regarding the nonavailability of records; however, the Board also notes that the burden that an error or injustice exists rests with the applicant.  There is nothing in the available records or in anything submitted by the applicant or counsel to overcome presumption of administrative regularity.  Nor has the applicant or counsel submitted a convincing argument in support of the applicant’s request.

4.  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 the aforementioned requirement.

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