RECORD OF PROCEEDINGS


         IN THE CASE OF:


         BOARD DATE: 27 MAY 2004
         DOCKET NUMBER: AR2003096353


         I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Mr. Melvin Meyer		Chairperson
Ms. Regan Smith		Member
Mr. Thomas O'Shaughnessy		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military records.

         Exhibit B - Military Personnel Records (including advisory opinion, if any).


1. The applicant requests physical disability retirement or separation.

2. The applicant states that the Pennsylvania Army National Guard (PAARNG) failed to conduct a review of his records. His report of physical examination should have been forwarded to a medical review board for a determination. He should have received a medical discharge in 1994.

3. The applicant provides the documents depicted herein.

CONSIDERATION OF EVIDENCE:

1. The applicant served on active duty from August 1969 to February 1972. He was released from active duty in pay grade E-5 with an honorable characterization of service and transferred to the Army Reserve Control Group. His period of active duty included service in Vietnam from February 1970 to September 1971.

2. The applicant was appointed a second lieutenant in the PAARNG on 21 May 1978 as an armor officer. He completed the armor officer basic course in November 1978; however, his career with the PAARNG was as an infantry officer beginning in November 1979. He was promoted to captain in 1984, to major in 1989, and to lieutenant colonel in 1997. He received his notification of eligibility to receive retired pay at age 60 (20 year letter) in December 1992.

3. The applicant's evaluation reports show:

         a. The report for the period ending on 4 August 1984 shows that he passed the Army physical fitness test and that he met the Army weight standards.

         b. The academic evaluation report completed at the infantry advanced course on 25 February 1985 indicates that the applicant had a long-term temporary profile and could not take the Army physical fitness test.

         c. The five reports subsequent to the above-mentioned academic report show that he passed the physical fitness test and met the Army weight standards.

         d. The report for the one-year period ending on 14 May 1991 shows that the applicant had a profile, and that he was overweight, not meeting the Army weight standards.

         e. The report for the one-year period ending on 14 May 1992 shows that he was unable to run because of a knee injury. He met the Army body fat standards.

         f. The six ensuing reports, the last ending on 28 February 1997, show that he passed the Army physical fitness test during the periods of the reports and that he met the Army body fat standards.

         g. The reports for the periods ending in February 1998 and May 1998 show that the applicant was a battalion commander of a support battalion. Both reports show that he had a profile dating from March 1997, and that he met the body fat standards. He was rated in the top block by his senior rater on both reports.
        
h. The report for the period ending on 1 May 1999 shows that he passed the physical fitness test and that he met the Army weight standards.

4. A 15 May 1994 report of medical examination shows that the applicant's condition was diagnosed as diabetes mellitus type II, and bilateral knee path – stable. The report shows that he was medically fit for retention with a physical profile serial of 2 1 1 1 1 1.

5. In a 5 March 2001 memorandum to the Director of Military Personnel, PAARNG, the applicant requested a medical review board prior to his departure from the PAARNG.

6. On 17 April 2001 the applicant was discharged from the Army National Guard for failure to be selected for retention, and transferred to the Army Reserve Control Group (Reinforcement) at St. Louis.

7. A 21 November 2001 VA medical report shows that the applicant's condition was diagnosed as diabetes mellitus, mild peripheral neuropathy, lower extremities, and degenerative joint disease (DJD) of the knees, bilaterally.

8. A 24 January 2002 VA rating decision shows that the applicant was granted a 20 percent disability rating for type II diabetes mellitus with mild peripheral neuropathy (herbicide) (nehmer granted), a zero percent rating for residuals of septic arthritis of right knee, and a zero percent rating for intertrigo. Rating as to service connection for left knee condition was deferred. The VA, in makings its decision, noted that the evidence showed that the applicant served in Vietnam. He was diagnosed to have diabetes mellitus in 1994 and on oral hypoglycemic agents since then. The VA indicated that service connection could be granted for specific diseases or conditions which were presumed to have been caused by service if manifested to a compensable degree following military discharge, and although not shown in service, service connection for type II mellitus associated with herbicide exposure has been granted on the basis of presumption.

9. A 21 August 2002 report of medical examination, along with allied medical documents, show that the applicant had type II diabetes mellitus and DJD of both knees. He was seen and treated for his diabetes on numerous occasions by a civilian doctor in Blairsville, Pennsylvania.

10. On 4 August 2003 the Army Reserve Personnel Command surgeon notified the applicant that his medical records revealed that his diabetes mellitus and bilateral knee arthritis disqualified him for retention in the Army Reserve. He was informed that he had three options, elect transfer to the Retired Reserve, elect to be discharged from the Retired Reserve, or elect consideration by a non-duty related physical evaluation board (NDR-PEB). The surgeon indicated that a NDR-PEB purview was limited to fitness determination and could not award disability compensation. The applicant was requested to respond by 19 September 2003.

11. On 26 August 2003 the applicant was assigned to the Retired Reserve because of his medical disqualification.

12. Department of Defense (DOD) Instruction 1332.38 provides policy, procedures, and instructions for the DOD disability evaluation system (DES), and states in pertinent part, that members of the Reserve components who are not on a call to active duty of more than 30 days and who are medically disqualified for impairments unrelated to the member's military status and performance of duty shall be referred into the DES solely for a fitness determination upon the request of the member or when directed by the Secretary concerned.

13. That instruction states that either a physical examination or a MEB (Medical Evaluation Board) is required when a Reserve component member is referred for impairments unrelated to the member's military status and performance of duty (nonduty related impairments). Nonduty related impairments are impairments of members of the Reserve components that were neither incurred nor aggravated while the member was performing duty, to include no incident of manifestation while performing duty which raises the question of aggravation. Members with nonduty related impairments are eligible to be referred to the PEB for solely a fitness determination but not a determination of eligibility for disability benefits.

14. 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 office, rank, grade or rating because of disability incurred while entitled to basic pay.

---

DISCUSSION AND CONCLUSIONS:

1. Notwithstanding the applicant's contention and the VA decision concerning his service-connected disabilities, there is no medical evidence to show that his medical condition was caused while in an active duty status, or that his condition was such that he was unable to perform his duties. He had temporary profiles as evidenced by his record; however, continued to perform his duties with no apparent distress until his discharge from the PAARNG in 2001. He was medically fit for retention in 1994, despite his current assertion to the contrary. He was promoted to lieutenant colonel three years later, attesting to his physical and medical ability to serve. His service in the PAARNG was interrupted only by his failure to be selected for retention by that agency.

2. The applicant has submitted neither probative evidence nor a convincing argument in support of his request. There is no basis for physical disability retirement or separation.

BOARD VOTE:

________ ________ ________ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

__MM___ __RS ___ __TO ___ DENY APPLICATION

The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.





                  _____Melvin Meyer________
                  CHAIRPERSON

---

INDEX

CASE ID	AR2003096353
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20040527
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	108.00
2.
3.
4.
5.
6.