MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 20 May 2003
         DOCKET NUMBER: AR2002075997

         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
Ms. Joyce A. Wright		Analyst

The following members, a quorum, were present:

Mr. Melvin H. Meyer		Chairperson
Mr. Jose A. Martinez		Member
Ms. Deborah S. Jacobs		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 his honorable discharge from the Louisiana Army National Guard (LAARNG) be changed to show that he was released by reason of physical disability.

APPLICANT STATES: That he does not understand why he was given an honorable discharge instead of being released by reason of physical disability. He was cleared by military physicians and was later released by the word of a civilian physician. He was honorably discharged without explanation and transferred to the USAR Control Group (Retired). In support of his application, he submits a copy of his separation orders and NGB Form 22 (Report of Separation and Record of Service).

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

He enlisted in the United States Air Force on 4 March 1957 and continued to serve until he was honorably discharged on 31 December 1964.

After a break in service, he enlisted in the Ohio Army National Guard (OHARNG) on 17 January 1976 and continued to serve until he was honorably discharged on 14 January 1982.

He enlisted in the Arizona Army National Guard (AZARNG) on 15 January 1982, for a period of 6 years. On 30 November 1987, he extended his enlistment for a period of 3 years.

On 1 December 1988, he was transferred from the AZARNG to the LAARNG.

On 27 March 1989, orders were published by the LAARNG attaching the applicant to Bayne-Jones Community Hospital, Fort Polk, Louisiana for the purpose of a medical examination/evaluation. He was attached from 30 to 31 March 1989 (2 days).

The applicant's records contain a copy of a 31 March 1989, consultation sheet, from the Internal Medicine Clinic to the Cardiology Clinic requesting cardiac clearance for the applicant. The consultation report was completed on 18 May 1989 by competent medical authorities. The summary stated that the applicant had received bypass heart surgery in 1981 and has exertional angina (spasmodic choking or suffocation pain). His provisional diagnoses were status/post bypass surgery in 1981, obesity, sleep apnea, high blood pressure and recurrent coronary disease. He was on medication for high blood pressure and was not to engage in any activity which could bring on angina.



On 3 June 1989, the LAARNG, Enlisted Personnel Manager notified the State Area Command (STARC) that the applicant's records were reviewed. It was determined that he was not retainable in accordance with Army Regulation 40-501, chapter 3 and that he had completed over 18 years of service.

On 23 June 1989, the applicant was recommended for discharge for failure to meet medical retention standards. The State Surgeon, who concurred with the action, reviewed his files. The applicant's request was forwarded to the Chief, National Guard Bureau (NGB) due to his 18 years of service.

The State Adjutant General (AG) recommended to the Chief, NGB that favorable consideration be given to the applicant's case who had been determined unqualified for retention for medical reasons. The applicant had over 18 years of service but not 20 years to qualify for retired benefits at age 60. Approval from the C, NGB is unavailable for review.

On 8 September 1989, the applicant was honorably discharged from the LAARNG under the under the provisions of National Guard Regulation (NGR) 600-200, paragraph 8-26y, due to medical disqualification under the retention standards of chapter 3, Army Regulation 40-501. He was transferred to the USAR Control Group (Retired). The applicant was separated without evidence of a separation medical examination.

The applicant's medical records are unavailable for review by this Board.

On 12 October 1989, the LAARNG notified the applicant that he had completed the required years of service to be eligible for retired pay upon applicant's age at 60 (20-Year Letter).

National Guard Regulation (NGR) 600-200 governs procedures for enlisted personnel of the Army National Guard. Paragraph 8-26 covers reasons, applicability, codes, and board requirements for administrative discharges from the Reserve of the Army and/or the State ARNG. Paragraph 8-26(y) pertains to medically unfit for retention standards of chapter 3, 40-501.

Army Regulation 40-501, at chapter 3, provides standards for medical retention. Basically, members with conditions as severe as listed in this chapter are considered medically unfit for retention on active duty.






Chapter 8 of the same regulation pertains to medical examinations-administration procedures. Paragraph 8-18 states that individuals on active duty (AD) for 30 days or less and those ordered to ADT without their consent are not routinely required to undergo medical examination prior to separation. Medical examinations will be given when: (1) the individual has been hospitalized for an
illness or an injury which may result in disability; (2) Sound medical judgment indicates the desirability of a separation medical examination; (3) the individual alleges medical unfitness or disability at the time of completion of ADT; and
(4) Individual requests a separation medical examination.

Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his/her office, rank, grade, or rating because of a disability incurred while entitled to basic pay.

Title 10, US Code, section 1201, provides for the physical disability retirement of an unfit member who has at least 20 years of service or a disability rating of at least 30 percent.

Army Regulation 635-40, paragraph 2-2b, as amended, provides that when a member is being separated by reasons other than physical disability, his/her continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he/she was unable to perform his/her duties 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.

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 evidence of record shows that the applicant was attached to a military hospital for evaluation. Competent medical authorities stated that his provisional diagnoses were status/post bypass surgery in 1981 and obesity, sleep apnea, high blood pressure and recurrent coronary disease.

2. The applicant records were reviewed and it was determined that he was not retainable in accordance with Army Regulation 40-501, chapter 3 and that he had completed over 18 years of service. He was recommended for discharge for failure to meet medical retention standards. The State Surgeon reviewed his files and a request was forwarded to the Chief, NGB due to his years of service.




3. The State AG recommend to the Chief, NGB that favorable consideration be given to the applicant's case who had been determined unqualified for retention due to medical reasons. The Chief, NGB's approval is unavailable for review by this Board but it appears that the recommendation for discharge was approved.

4. The applicant was honorably discharged on 8 September 1989 due to medical reasons and was transferred to the USAR Control Group (Retired) based on his completion of 20 years of service. His records show that he is qualified for retired pay at age 60.

5. The Board notes the applicant's contention that he was cleared by military physicians and was later released by the word of a civilian physician. However, the applicant was examined by military physicians which prepared a cardiac consultation that determined that he was not retainable. There is no evidence in the available records to show that he was released verbally by the word of a civilian physician.

6. 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.

7. 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

___mm___ __jm____ ___dj__ DENY APPLICATION

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

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INDEX

CASE ID	AR20002074865
SUFFIX
RECON
DATE BOARDED	20030520
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	19900908
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	deny
REVIEW AUTHORITY
ISSUES 1.	177
2.
3.
4.
5.
6.