MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 4 December 2001
         DOCKET NUMBER: AR2001060368

         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
Mr. Paul A. Petty		Analyst

The following members, a quorum, were present:

Ms. Joann Langston		Chairperson
Mr. Eric N. Andersen		Member
Ms. Margaret K. Patterson		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: In effect, that he be retired with 15 years service under the Early Reserve Retirement Eligibility program for Disabled Members of the Army National Guard (ARNG) as provided by the National Defense Authorization Act of Fiscal Year 1995 (FY95), Public Law 103-337.

APPLICANT STATES: That he was separated in 1990 with 14 years of service. If he had been properly counseled and his service extended, he would have successfully completed 20 years service for retirement. He was not extended due to an accident on his civilian job which caused him to develop asthma-like symptoms and disabilities. He was not medically separated. He was discharged at the Expiration of his Term of Service (ETS) and not allowed to extend his service. He was not properly informed of an option to extend his enlistment for the convenience of the government nor was he afforded a medical separation board or retention board. He recently learned that asthma was only an enlistment criteria and not a retention issue as he had been led to believe in 1990.

He provides a copy of his 17 September 1990 National Guard Bureau Report of Separation and Record of Service, his retirement point history, a 10 May 1990 chest x-ray report, a 3 July 1990 Medical Board Report, a 3 July 1990 Physical Profile, a 9 September 1990 Report of Medical Examination for the purpose of enlistment extension, and a 8 May 1995 Ohio Army National Guard (OHARNG) memorandum on the Early Reserve Retirement Eligibility program for Disabled Members of the Army National Guard for Fiscal Year 1995 (FY95).

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

That he enlisted in the Regular Army on 27 July 1964, for a 3 year term of service. He advanced to the rank of specialist five (temporary). He was honorably released from active duty on 22 July 1967, as an overseas returnee and transferred to the U. S. Army Reserve (USAR) Control Group (Reinforcement), Individual Ready Reserve (IRR), to complete his obligation.
He was honorably discharged from the USAR on 26 July 1970.

He enlisted in the ARNG on 18 September 1978. He was promoted through the ranks to first sergeant, pay grade E-8, on 7 February 1987. In 1990, the applicant was the first sergeant of Battery A, 2^nd Battalion, 174^th Air Defense Artillery (Hawk), OHARNG, in Logan, Ohio.

On 3 July 1990, he received a Medical Evaluation Board (MEB) at Wright Patterson Air Force Base Medical Center (WPAFBMC) to determine his eligibility for continued world wide active duty (deployability). The MEB found that the applicant had: “Occupational asthma secondary to diisocyanate exposure with


moderate air flow obstruction, persistent symptoms (dyspnea [shortness of breath], wheezing, and coughing) in spite of removal from exposure. Historically, the patient has severe asthma and … recent cardiopulmonary arrest (stoppage of the heart and lungs) (in March 1989) … (and) cardiopulmonary arrest secondary to status asthmaticus (in January 1990).” Records show that on or about 6 March 1989, the applicant was exposed to the chemical fumes, diphenyl methane dissocyanate, on his civilian job as a truck driver hauling and unloading the chemical. The MEB further reported, “Over the last year, he has had progressive dyspnea, wheezing, and increased airway irritability. His symptoms are precipitated by fumes, smoke, exercise, weather changes, and cold air. He is unable to accomplish even minimal physical therapy requirements secondary to dyspnea. The patient’s asthmatic complaints are precipitated by even minimal physical activity, thus making him unfit for worldwide deployment.” The MEB forwarded their findings to The Adjutant General (TAG), OHARNG, and recommended a Physical Evaluation Board (PEB). The WPAFBMC also issued the applicant a permanent physical profile, level 4 for pulmonary, with the limitation that the applicant should not participate in aerobic activities.

The OHARNG Staff Surgeon reviewed the MEB findings and the applicant’s medical records. The surgeon recommended that the applicant undergo a retention physical. On 9 September 1990, the applicant was given a physical examination for the purpose of enlistment extension. The examination was given by a Medical Corps doctor from the 2291^st U. S. Army Hospital, Athens, Ohio. The doctor concluded that the applicant was not qualified for further military service due to asthma, expiratory wheezes, with acute respiratory arrest.

On 17 September 1990, the applicant was honorably discharged at the end of his term of service under authority of National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management), paragraph 8-26x, “not medically qualified to extend.” He was discharged with 2 years, 11 months, and 26 days active Federal service; 3 years and 4 days service in the IRR; and 12 years service in the ARNG. His retirement point history shows that he was credited with
14 years, 11 months, and 26 days creditable service for retired pay at age 60.

Army Regulation (AR) 40-501 (Standards of Medical Fitness), chapter 3, gives the various medical conditions and physical defects which may render a soldier unfit for retention for further military service. Paragraph 3-27a lists one such condition as asthma, of sufficient severity to interfere with satisfactory performance of duty.

Army Regulation 135-178 (Army National Guard and Army Reserve Separation of Enlisted Personnel), paragraph 12-1, states that an enlisted soldier will be separated when it is determined that the soldier is no longer qualified for


retention by reason of medical unfitness according to AR 40-501 unless the soldier requests and is granted a waiver under AR 40-501 or NGR 40-501, or
the soldier is eligible for and requests transfer to the Retired Reserve under
AR 140-10.

The AR 40-501, paragraph 1-6, states, in pertinent part, that a soldier who does not meet medical fitness standards can request a waiver. Waivers can be granted in accordance with directives current at the time. The NGR 40-501, paragraph 2-11 states that waivers will not be recommended for medical conditions that are subject to complication or aggravation by reason of military duty.

The AR 140-10 (Army Reserve Assignment, Attachments, Details, and Transfers), chapter 6, states, in pertinent part, that a Reserve Component soldier can be transferred to the Retired Reserve upon their request when the soldier is medically disqualified for retention, regardless of the total number of years of service completed.

The NGR 600-200, paragraph 7-7, states, in pertinent part, that an enlisted soldier may be retained beyond his ETS to give the soldier opportunity to request transfer to the Retired Reserve, if qualified, or for physical disability processing. The soldier will be retained until these personnel actions have been completed.

Army Regulation 600-8-1, paragraph 41-8 states, in pertinent part, that if a medical condition exists prior to service (EPTS), it will be found not to have occurred in the line of duty. For Reserve Component soldiers, medical conditions that occur while not at drill or on active duty, are considered to be EPTS. Natural progress or consequences of an EPTS injury or disease preclude findings of service aggravation and in line of duty determination.

The NGR 600-200, chapter 17, states, in pertinent part, that a soldier found unfit for retention in the ARNG will be reviewed by a state Medical Duty Review Board (MDRB). The MDRB will recommend retention or reclassification, with or without duty limitations, or recommend separation as medically unfit for retention. If separation is recommended, the soldier will be allowed 60 days to submit any additional information that may be applicable. The State Surgeon will make a final recommendation to the state TAG. The State TAG will make final decision on discharge according to NGR 600-200. In cases where there is a line of duty injury or disease and separation is recommended, a MEB/PEB process will be initiated.





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

1. The applicant incurred an EPTS injury to his lungs that resulted in asthma, while employed in his civilian occupation. The asthma was of sufficient severity to interfere with satisfactory performance of his military duties. He received a permanent level 4 profile and restriction from participation in aerobic activities.
A military medical doctor gave the applicant a physical examination and determined, according to regulation and medical findings, that the applicant was not medically qualified for further retention in the military service. Contrary to the applicant’s contention that asthma is only a disqualifier for enlistment, Army Regulation 40-501, chapter 3, specifically states that asthma may render a soldier unfit for retention for further military service.

2. According to NGR 40-501, the applicant’s case should have been reviewed by an MDRB, the applicant allowed to submit additional information if any, and final recommendation made to the TAG by the State Surgeon. The TAG should have made the final decision on separation according to NGR 600-200. There is no evidence to show that this process was applied but in the absence of evidence to the contrary, a presumption of regularity must be made. Additionally, since the asthma condition, which resulted in the applicant being medically unfit for retention, was EPTS and not incurred in the line of duty, the correct reason for separation, according to NGR 600-200, would have been “not medically qualified to extend,” the reason for which the applicant was discharged. The applicant was discharged for the correct reason.

3. The asthma condition was EPTS and not incurred in the line of military duty and therefore was not subject to consideration by a MEB/PEB process for disability separation or retirement.

4. The applicant’s enlistment could have been extended to allow for an MDRB process, for consideration of a waiver of his unfit condition, or to process a request for transfer to the Retired Reserve. However, since his condition interfered with his military duties, he would not have been granted a waiver. Since regularity is presumed in the MDRB process, in the absence of evidence to the contrary, and the reason for discharge was correct, there is no reason to now apply any extension to the applicant’s term of service based on the MDRB process. Since the applicant was unfit for retention, he would not have been extended from 1990 to 1995 under any circumstances to become eligible for the FY 95 Early Reserve Retirement Eligibility program for Disabled Members of the Army National Guard. His extension, had it been granted, would have only been granted until completion of his medical evaluation process, a period generally not more than 6 months.

5. In accordance with AR 140-10, the applicant could have applied for transfer to the Retired Reserve instead of discharge since he was medically disqualified for retention, regardless of the total number of years of service he had completed. Soldiers in the Retired Reserve were not eligible for the Early Reserve Retirement Eligibility program for Disabled Members of the Army National Guard. Membership in the Retired Reserve would also not add any retirement points to his account to qualify him for retirement. Transfer to the Retired Reserve as a corrective action would provide no effective relief for retirement eligibility which the applicant seeks in his application for correction.

6. 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

_jl____ ___ea___ ___mp_____ DENY APPLICATION

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

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INDEX

CASE ID	AR2001060368
SUFFIX
RECON
DATE BOARDED	20011204
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	19900917
DISCHARGE AUTHORITY	NGR 600-200, para 8-26x
DISCHARGE REASON	Not medically qualified to extend.
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	136 – Retirement/Separation
2.
3.
4.
5.
6.