MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 8 November 2001
         DOCKET NUMBER: AR2001060982

         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:

Mr. Fred N. Eichorn		Chairperson
Ms. Barbara J. Ellis		Member
Ms. Karen Y. Fletcher		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)

APPLICANT REQUESTS: Reconsideration of his request to void his discharge, to show that he was retained on active duty on a medical hold status, to show that he was considered by an informal Physical Evaluation Board (PEB) which determined that he was physically unfit, and to show that he was separated for physical disability with an appropriate percentage of disability. He also requested that he receive back pay and allowances from the date of his separation to the date of his reinstatement and that he receive credit for time in grade for pay, promotion, and retirement purposes from the date of his separation to the date of his reinstatement.

APPLICANT STATES: That the memorandum from the Chief of Physical Exams, Fort Drum, NY is further evidence to rebut the presumption of regularity and the credibility of his final physical examination. He requests that the memorandum from the Chief, Medical Standards, New York Army National Guard (NYARNG), which restates the requirement for a Medical Evaluation Board (MEB), be considered. Like his commander, the medical personnel are also concerned about the impact his heart condition, chronic low back pain, and the degenerative arthritis in his shoulder have on his ability to perform his duties and see all three medical conditions as contributing to an overall rating of unfit. The NYARNG is willing to give him a medical waiver of chapter 2 standards and allow him to complete his 20 year active duty career but only if it is proven by a MEB/PEB that he meets the retention standards of chapter 3. Had he been aware that an MEB/PEB was required or was his right, he would not have separated on 31 December 1998. He would have demanded an MEB/PEB to determine if he was fit for duty.

COUNSEL CONTENDS: That the applicant was unfit for duty at the time he was released from active duty (REFRAD). In October and November 1998, the applicant was interviewed for and selected for an Active Duty Special Works (ADSW) position with the NYARNG. The ADSW was to be from 11 January 1999 to 30 September 2001. On 6 February 1999, the NYARNG State Surgeon and on 11 March 1999 the Chief Surgeon, ARNG found him not fit for duty until the required MEB/SMDRB (State Medical Duty Review Board) results found him to be so. They would not use the December 1998 REFRAD physical because they believed it to be in error. On 15 January 2001, the NYARNG recommended the applicant for medical separation due to the identical heart, shoulder, and back conditions which he had while on active duty prior to his separation. He has been unable to perform the duties of an Infantry captain in the NYARNG since his REFRAD.

NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's original consideration of his case on 25 July 2000 (AR1999028558).

On 9 February 1999, the State Surgeon requested an advisory opinion from the Chief Army Surgeon, National Guard Bureau (NGB) concerning the applicant’s fitness for the ADSW tour. The State Surgeon noted that the REFRAD physical appeared to be in error and that the applicant should probably have not been REFRAD without a second MEB/PEB. The State Surgeon noted that on 9 January 1999, while in an inactive duty training (IDT) status, the applicant experienced chest discomfort although the private attending cardiologist’s report seemed to doubt a cardiac origin. The State Surgeon noted that the applicant’s health was likely to be compromised by continued military service. A formal line of duty investigation (LOD) was pending. The State Surgeon noted that disposition options included an MEB/PEB based upon the ARNG LOD or an MDRB in the ARNG. The State Surgeon also wondered if a return to an active status for processing through an MEB/PEB was an option since he was within a few weeks of his REFRAD.

On 11 March 1999, the Chief Surgeon, ARNG advised that the applicant was not medically fit for duty until MEB/SMDRB results found him to be so. The case was returned so that the appropriate action could be administered.

On 6 July 1999, the applicant applied to the Board with the results as noted in case AR1999028558.

On 27 April 2000, the VA gave the applicant a combined 30 percent disability rating for residuals of right shoulder surgery with degenerative arthritis (20 percent) and arteriosclerotic heart disease and hypertension (10 percent). He appealed, stating his lower back condition should also have been rated. The results of his appeal are not available.

A 15 January 2001 memorandum from the applicant’s commander to the President, Military Occupational Specialty (MOS)/Medical Retention Board (MMRB) noted that the applicant was assigned as excess to the unit as his medical condition and profile were prohibitive from assigning him to a position. He was an infantry officer but his profile prohibited him from performing field duty or conducting any type of active duty training. Many special allowances were made to accommodate his medical condition to derive some limited value from his service. His skills, knowledge, and abilities were a valuable asset but he was no longer able to perform the duties of his office or rank.

A 7 March 2001 letter from his cardiologist indicated that the applicant was stable from a cardiovascular standpoint. However, it was clear that he should no longer be on active duty as an infantryman as it was too demanding and stressful. His current sedentary position as a Budget Analyst was appropriate.

On 15 March 2001, the applicant was given a temporary profile for heart, shoulder, chronic low back pain, degenerative arthritis right shoulder, and scoliosis (mild). He was given assignment limitations of no mandatory strenuous activity, no heavy lifting, no assignment to isolated areas without definitive care availability, no continuous operations, and no stressful job. It was highly recommended that he change from a combat MOS to a noncombat arms career management field.

In a 24 July 2001 memorandum, the Chief of Physicals, Fort Drum, NY indicated that it was clear to him that the applicant’s REFRAD physical was not complete, drew incorrect conclusions as to his fitness, and did not meet the requirement or intent of Army Regulation 40-501.

On 30 July 2001, the Chief, Medical Standards, NYARNG stated that he stood by the 11 March 1999 NGB Chief Army Surgeon’s advisory opinion. It was recommended that the applicant be returned to active duty, given a complete physical including the necessary consultations to cardiology and orthopedics. The applicant should then proceed to an active duty MEB to determine if he meets medical retention standards, then to an MMRB to determine if he is fit to be an infantry captain, and finally to a PEB for final disposition and medical retirement if indicated.

As of 20 September 2001, the applicant was still in the NYARNG.

Army Regulation (AR) 40-501 governs medical fitness standards for enlistment, appointment, including officer procurement programs, retention, and separation. It applies to candidates for military service and Active Army personnel and, in specified paragraphs, to the ARNG and the U. S. Army Reserve. Chapter 2 governs enlistment and appointment standards; chapter 3 governs retention standards. Paragraph 3-4 states that possession of one or more of the conditions listed in chapter 3 does not mean automatic retirement or separation from the service. Physicians are responsible for referring soldiers with such conditions to an MEB. Paragraph 3-21 states that coronary heart disease associated with myocardial infarction or myocardial infarction with normal coronary artery anatomy are causes for referral to an MEB. The policies for trial of duty, profiling, and referral to an MEB and a PEB apply. The trial of duty will be for 120 days. Paragraph 3-25 states that prior to commencing the trial of duty period, an MEB will be accomplished in all cases. Upon completion of the trial of duty period, an addendum to the MEB will be completed. An addendum to the MEB by a cardiologist or internist will include the individual’s interim history, present condition, prognosis, and the final recommendations.

National Guard Regulation (NGR) 40-501 sets basic policies, standards, and procedures for medical examinations and physical standards for ARNG personnel. Paragraph 2-2 states that applicants for entry into any type of full time duty for periods greater than 30 days requires a chapter 2, AR 40-501 standards review which may be determined based on review of the current valid periodic examination and validated by the State Surgeon of Physician Designee. Waivers of disqualifying conditions in accordance with chapter 2 standards may be submitted for review to NGB.

NGR 40-501, chapter 17 establishes the SMDRB process, a process for evaluation of all ARNG soldiers who may become unfit to maintain their MOS or duty assignment or unfit to maintain membership in the ARNG. It states that soldiers shall be entered into this process when they are believed to not meet the standards for MOS or duty retention. During the initial medical evaluation a physician designated and supervised by the State Surgeon will review all pertinent medical information including a commander’s statement relative to the soldier’s capability of performing his/her assigned duty and may authorize special examinations and consultations as necessary to fully define the soldier’s medical status. If this initial evaluation finds the soldier fit for continuation of membership and duty in the assigned MOS, the Annual Medical Certificate (AMC) will be annotated and submitted for return to the unit of assignment. If this initial evaluation indicates the soldiers is not fit to continue membership or assignment in his/her MOS, the case records will be submitted to the State MDRB for determination. This initial medical evaluation will result in one of four recommendations: (1) fully fit for continued duty in current MOS without limitations of duty; (2) fit for retention and combat duty but with duty limitations which may be temporary with anticipated return to normal function requiring more than 90 days or which may be permanent duty limitations which may or may not require reassignment or change of MOS; (3) fit for retention but not fit for combat or field duty, requiring reassignment to a non-combat or nondeployable position or separation if such a position is unavailable; and (4) not fit for retention, fails to meet chapter 3, AR 40-501 standards of retention.

NGR 40-501, paragraph 17-4 states that the MDRB will review all available medical documentation and may request additional information or consultations. Within 90 days, the MDRB will render one of three recommendations: (1) retention in service and in MOS, with or without duty limitations; (2) reclassification in a more suitable MOS, with or without duty limitations and a permanent profile if appropriate which may include reassignment to a nondeployable position if available; and (3) separation from the ARNG as medically unfit for retention.

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. Having a condition listed as a cause for referral to an MEB does not automatically result in such a referral. Physicians are responsible for referring soldiers with such conditions to an MEB. Competent medical authority, a Doctor of Osteopathy, reviewed the applicant’s separation physical and presumably found no fault with the examination as conducted.

2. In addition, three years have now passed since his October 1998 heart attack. For most of those three years, it appears that he has successfully maintained his status in the ARNG, although perhaps not for the reason he initially was hoping for. On 9 January 1999, while in an inactive duty training (IDT) status, the applicant experienced chest discomfort and the State Surgeon noted that his health was likely to be compromised by continued military service. The State Surgeon noted at that time that disposition options included an MEB/PEB based upon the ARNG LOD or an MDRB in the ARNG. On 11 March 1999, the Chief Surgeon, ARNG advised that the applicant was not medically fit for duty until MEB/SMDRB results found him to be so. The Chief Surgeon, ARNG did not recommend the applicant be returned to active duty for an MEB. The case was returned so that the appropriate action as provided for by NGR 40-501 could be administered. It appears that in almost three years the NYARNG never initiated those actions. The Board concludes from the State’s failure to follow those recommendations and from the applicant’s failure to insist upon their being followed that, had he properly been given an MEB and trial of duty prior to his REFRAD, he would not have been found unfit for service. Therefore, at this point in time, returning him to active duty for the purpose of an MEB would not be appropriate.

3. On 15 January 2001, the NYARNG recommended the applicant for medical separation due to the identical heart, shoulder, and back conditions which he had while on active duty prior to his separation as he was unable to perform the duties of an Infantry captain in the NYARNG since his REFRAD. His commander noted that the applicant’s skills, knowledge, and abilities were a valuable asset. On 7 March 2001, the applicant’s cardiologist indicated that the applicant was stable from a cardiovascular standpoint and, while it was clear that he should no longer be on active duty as an infantryman, his current sedentary position was appropriate. On 15 March 2001, the applicant’s profile recommended that he change from a combat MOS to a noncombat arms career management field. As of September 2001 the applicant was still in the NYARNG. The Board concludes from this that had the State initiated the MDRB process, the recommendation most likely would have been retention in service and reclassification in a more suitable MOS, with or without duty limitations rather than separation from the ARNG as medically unfit for retention.

4. The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

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

__fne___ __bje___ __kyf___ DENY APPLICATION

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

---

INDEX

CASE ID	AR2001060982
SUFFIX
RECON
DATE BOARDED	20011108
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	108.00
2.
3.
4.
5.
6.