MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 6 November 2001
         DOCKET NUMBER: AR2001059766

         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:

Ms. Deborah S. Jacobs		Chairperson
Mr. Elzey J. Arledge, Jr.		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)

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APPLICANT REQUESTS: That he be entitled to an early Reserve retirement due to physical disability.

APPLICANT STATES: That his request for retention beyond his mandatory removal date (MRD) was denied. He elected not to appeal the denial of retention because in the meantime he discovered that a medical problem that was diagnosed in 1997 (although present even earlier) made him medically unqualified. In April 1997 he consulted the Employee Health Service of the hospital in Saudi Arabia where he was employed for episodes of bradycardia associated with shortness of breath and occasionally almost syncope. He was advised to undergo additional testing but elected not to do this at the time because he was about to go on leave to the States. After he returned to the States during December 1999 and January 2000, a detailed work-up confirmed the presence of symptomatic cardiac bradyarrhythmia with occasional syncope. Army Regulation 40-501 states that symptomatic bradyarrhythmias, even in the absence of organic heart disease or syncope, are reason for medical disqualification. One of the options presented to him at the time of his denial of retention beyond his MRD was retirement provided he had more than 15 qualifying years of service and was medically unfit for retention. He had 16 qualifying years of service (the statement of retirement points for retirement year ending (RYE) 15 March 1996 is in error; it was a good year) and he had a condition medically disqualifying him. In addition, he lost his position as Commander of the 114^th Evacuation Hospital in San Antonio, TX, due to reorganization of the unit into the 5501^st U. S. Army Hospital. This made it necessary for him to travel to the 94^th General Hospital in Seagoville, TX, a distance of over 300 miles.

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

He was born on 28 September 1934. He was commissioned a major in the Medical Corps on 13 August 1982. His primary area of concentration was 60S, Ophthalmologist.

On or about 1 May 1993, the applicant was reassigned from the 114^th Evacuation Hospital San Antonio, TX to the 94^th General Hospital, Seagoville, TX.

The applicant’s Officer Evaluation Report (OER) for the period 1 May 1997 through 9 January 1998, during which period he was rated as a 62A, Emergency Physician, shows his performance was rated as “always exceeded requirements.”

On 30 September 1998, the applicant was transferred to the Retired Reserve as a result of his mandatory removal (apparently due to mandatory age).

By letter dated 6 December 1999, an Internal Medicine and Endocrinology Specialist with the King Khaled Eye Specialist Hospital, Saudi Arabia indicated the applicant had been seen on 30 April 1997 for a complaint of occasional shortness of breath and bradycardia when walking up a flight of stairs in his villa, particularly when doing so after previous resting. The problem lasted for a few seconds up to a few minutes and was not associated with chest pain. A plan was made for further investigation with a referral for cardiological assessment with a follow-up appointment in one week but the plan was not followed and the specialist had no further contact with the applicant.

By letter dated 26 September 2000, the applicant’s physician from Pasteur Medical Associates, San Antonio, TX, indicated the applicant was first seen on 1 December 1999. An electrocardiogram showed him to have sinus bradycardia. In summary, he had symptomatic cardiac bradyarrhythmia with occasional syncope but no underlying organic cardiac disease was identified.

Army Regulation 40-501 governs medical fitness standards for appointment, retention, and separation, including retirement. Paragraph 3-21d states that symptomatic bradyarrhythmia, even in the absence of organic heart disease or syncope, is a cause for referral to a medical evaluation board (MEB). Paragraph 3-4 states that physicians are responsible for referring soldiers with conditions listed in chapter 3 to an MEB.

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. Paragraph 3-1 states that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the soldier reasonably may be expected to perform because of his or her office, grade, or rank. Paragraph 3-13 states that special rules are applicable to general and Medical Corps officers. General officers and Medical Corps officers will not be found to be unfit by reason of physical disability if they can be expected to perform satisfactorily in an assignment appropriate to their grade, qualifications, and experience. General officers and Medical Corps officers who are processing for retirement by reason of age or length of service may not be retired for physical disability unless the initial unfitness determination of the Secretary of the Army is approved by the Secretary of Defense on the recommendation of the Assistant Secretary of Defense (Health Affairs).

General officers and Medical Corps officers not processing for retirement by reason of length of service at the time of their referral into the disability system may not be retired or separated for physical disability until a recommendation therefore by the Secretary of the Army is approved by the Assistant Secretary of Defense (Health Affairs).

Title 10, U. S. Code, section 12731 provides that a non-regular service member is entitled, upon application, to retired pay if the person is at least 60 years of age and has performed at least 20 years of qualifying service.

Title 10, U.S. Code, chapter 1223, section 12731a was the temporary special retirement qualification authority. It provided that, during the period 1 October 1991 through 30 September 1999, a member of the Selected Reserve who had completed at least 15, and less than 20, years of qualifying service could, upon the request of the member, be transferred to the Retired Reserve.

Public Law 106-65, enacted 5 October 1999, amended chapter 1223 (Retired Pay for Non-Regular Service) of Title 10, U. S. Code by adding section 12731b, (Special rule for members with physical disabilities not incurred in line of duty). Section 12731b(a) states that a member of the Selected Reserve who no longer meets the qualifications for membership in the Selected Reserve solely because the member is unfit because of physical disability may, for the purposes of section 12731 (Age and Service Requirements) of this title, be treated as having met the service requirements and be provided with the notification required if he has completed at least 15 and less than 20 years of service. The intent of the new subsection was to make the authority permanent when the reason for separation was physical disability.

In the processing of this case, an advisory opinion was obtained from the Retirements and Annuities Section, U. S. Army Reserve Personnel Command (AR-PERSCOM). That office stated that the applicant was aware of the requirements for retirement from the Reserve (20 qualifying years of service at age 60) when he accepted appointment as a medical doctor at age 47. Because he possessed a shortage specialty he was granted a 4-year extension beyond age 60. At the time he separated he had less than 20 qualifying years. That office noted that the reasons cited by the applicant -- that his position was eliminated and he was medically unfit -- why his request should be approved are justification for retirement under U. S. Code, Title 10. They also noted that the requirement to apply for early retirement lies with the soldier and the soldier’s unit. The applicant had stated that he had been the Commander of the 114^th Evacuation Hospital when he lost his position. As the commander, he should have had intimate knowledge of the Transition Assistance Management Program which authorized severance and early retirement for those soldiers displaced due to the drawdown of the Army. As a doctor, he was also aware of the requirements for a medical retirement. It appears he took no action in his stead in either instance.

A copy of the advisory opinion was provided to the applicant for comment or rebuttal. The applicant rebutted that while his record indicates he has slightly more than 15 years of service he actually has slightly more than 16 years. He submitted evidence of additional points to AR-PERSCOM but it apparently was not received. He did request a retirement on medical grounds several months before his request for an extension of his MRD was denied. The 807^th Medical Brigade apparently never received his request. He provided two letters, one from the 807^th Medical Brigade Supervisory Staff Administrator, dated 21 September 2001, and one, dated 10 September 2001, from the former Inspector General of the 807^th Medical Brigade as supporting evidence. The Supervisory Staff Administrator stated that had the applicant’s request for evaluation for separation for a medical condition been received, he would have been scheduled for a fit for duty evaluation. Had the diagnosis been substantiated, a request to separate the applicant for early retirement would have been requested.

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. 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. The applicant provides no evidence to show that he had additional retirement points for RYE 15 March 1996 and so the Board has not considered that part of his request.

3. Army Regulation 40-501 states that symptomatic bradyarrhythmia is a cause for referral to a MEB. However, when the applicant was first examined for this condition he failed to follow-up with a further cardiological assessment that may have led to his appearing before an MEB. Further, referral and consideration by an MEB does not equate to a finding of unfitness. It appears that the applicant most likely would not have been found unfit for duty. He developed this condition in April 1997 or earlier. His OER for the period ending January 1998 shows that he “always exceeded requirements,” i.e., he was not physically unfit to perform his duties. There is no evidence to show that his condition significantly deteriorated between January and September 1998, when he was transferred to the Retired Reserve, leading the Board to believe that he was never physically unfit to perform his duties as a Medical Corps officer.

4. There is no evidence of record and the applicant provides none to show the reason for his reassignment from the 114^th Evacuation Hospital to the 94^th General Hospital. Even if it was due to reorganization, the reassignment occurred in 1993 when the applicant had less than 15 years of qualifying service. He would not have been eligible for early retirement at that time, either. The Board presumes that he accepted the change in assignment in lieu of discharge from the U. S. Army Reserve.

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

__dsj___ __eja___ __dph___ DENY APPLICATION

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

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INDEX

CASE ID	AR2001059766
SUFFIX
RECON
DATE BOARDED	20011106
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	136.03
2.
3.
4.
5.
6.