RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           19 February 2004
      DOCKET NUMBER:   AR2003088678


      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. Edmund P. Mercanti            |     |Analyst              |


  The following members, a quorum, were present:

|     |Mr. Raymond J. Wagner             |     |Chairperson          |
|     |Mr. Melvin H. Meyer               |     |Member               |
|     |Mr. Robert L. Duecaster           |     |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).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his honorable discharge be corrected to a
medical discharge.

2.  The applicant states that while he was in the Army National Guard
(ARNG), he was physically unable to pass the Army Physical Fitness Test
(APFT).  His requests for a medical evaluation or alternative to passing
the APFT was ignored.  Instead, he was given constant counseling’s and
demotions.  One morning, while he was getting ready to go to his civilian
job, he was hospitalized for a myocardial infarction.  This was the day
after he attempted to pass the APFT with his ARNG unit.  He was given an
emergency cardiac catherization and a stent was inserted to keep his artery
open.  After his surgery, he was placed on medical hold by his ARNG unit.
Although he requested a waiver to remain in the ARNG, he was discharged
without notice.  He contends that the medical documentation he submits with
his application “Indicat[es] that this medical condition was present at the
time of Active Duty Status and Guard service and that the Etiology of the
Myocardial Infarction and evidence that the condition was aggravated by the
physical exertion of service is related.”

3.  The applicant provides numerous documents in support of his request,
which he lists on his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of error which occurred on 22
July 1999.  The application submitted in this case is dated 31 March 2003.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitation if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant enlisted in the ARNG with no prior service on 23 July
1993.

4.  He attended his initial entry training (IET) from 9 November 1993 to 18
May 1994, a total of 6 months and 10 days.

5.  He was charged with unexcused absences from two Unit Training
Assemblies (UTA’s) on 2 December 1995.

6.  He was charged with unsatisfactory performance of duties on 7 January
1996 because he failed to take the APFT as ordered.

7.  On 14 May 1996, the applicant was reduced from pay grade E-3 to E-2 due
to inefficiency.

8.  He was charged with unexcused absences from two UTA’s on 16 June 1996.

9.  On 15 July 1996, the applicant’s commander notified him that, because
he had failed his two previous record APFT’s and had not passed an APFT
since November 1993, he had been scheduled for an APFT on 7 September 1996.


10.  On 8 September 1996, the applicant was given a body fat content test
and was determined to exceed the maximum allowable body fat for his age.

11.  On 8 September 1996, the applicant had a suspension of favorable
personnel actions initiated against him for being overweight.

12.  He was charged with unsatisfactory performance of duties on 9 February
1997 because he failed to take the APFT as ordered.

13.  He was charged with unsatisfactory performance of duties on 1 March
1997 because he was late for formation.

14.  He was charged with unsatisfactory performance of duties on 2 March
1997 because he failed to take the APFT as ordered.

15.  He was charged with unsatisfactory performance of duties on 13 July
1997 because he failed to take the APFT as ordered.

16.  On 4 March 1998 the applicant was hospitalized for a complaint of
chest pain.  The applicant reported that he had a “strong” family history
of heart disease, and he had a history of severe hyperlipidemia and high
cholesterol.  He also smoked one pack of cigarettes a day.  The applicant
continued that he had woke up at 0200 hours that morning with a dull,
central chest discomfort radiating to his left arm, lasting a few minutes.
This scenario repeated itself a couple of times over the next few hours.
When he awoke for the morning at 0645 hours, he had severe substernal chest
discomfort associated with nausea, vomiting and weakness, which led to his
admission.

17.  The applicant was given a cardiac catheterization, angioplasty and had
a stent placed in his artery.

18.  On 23 March 1998, a physician wrote a letter stating that the
applicant had significant ischemic heart disease (patients with this
condition have weakened heart pumps, either due to previous heart attacks
or due to current blockages of the coronary arteries.  There may be a build-
up of cholesterol and other substances, called plaque, in the arteries that
bring oxygen to heart muscle tissue.  The term "ischemic" means that an
organ, in this case the heart muscle, has not received enough blood and
oxygen.  ‘Cardio’ refers to the heart and ‘myopathy’ means this is a muscle-
related disease.  In summary, ischemic cardiomyopathy is a medical term
that doctors use to describe patients who have congestive heart failure
that is a result of coronary artery disease [Medline Plus]) post
angioplasty and stenting of the right coronary artery and angioplasty of
the diagonal branch of the left anterior descending coronary artery.  The
physician stated that the applicant had a stress test after the procedure
which he passed without any chest pain or electrocardiogram (ECG) evidence
of ischemia.  The physician opined that the applicant should be able to do
normal activities with restriction only on very strenuous exertion.

19.  On 31 March 1999, the applicant’s commander was notified that the
State Medical Duty Review Board (MDRB) ordered that the applicant was not
to perform military duty until he completed a fitness for duty evaluation.
The applicant was informed of this determination by his commander.  The
record does not contain any documentation which would show that the
applicant completed a fitness for duty evaluation.

20.  On 8 July 1999, the applicant’s commander requested an exception to
policy to extend the applicant’s enlistment for 6 months.  The applicant’s
commander explained that an exception to policy was necessary because the
applicant was pending a MDRB, and that he had a suspension of favorable
personnel actions imposed on him for APFT failure.  There is no record of
this request being approved or disapproved.

21.  On 20 July 1999, the applicant requested a waiver to remain in the
ARNG.  The record does not contain any documentation which shows the final
disposition of that request.

22.  On 22 July 1999, the applicant was honorably discharged at the
expiration of his term of service (ETS).

23.  On 14 May 2001, the applicant underwent a rating examination by the
Department of Veterans Affairs (VA).  In the history of that examination,
it was noted that when the applicant was hospitalized for myocardial
infarction in 1998, artery angiograms showed a disease in the right
coronary artery with an area of stenosis (an abnormal narrowing) and also
an area of 90 percent stenosis of a diagonal branch of the left anterior
descending coronary artery.  The applicant was treated with an angioplasty
of those arteries and a stent was placed.  The examining physician
diagnosed the applicant as having significant hyperlipidemia (lipid
disorders are caused by excess lipids or fatty substances in the blood, and
are an important risk factor in developing atherosclerosis and heart
disease.  Certain types of lipid disorders may be caused by genetic
factors, as in certain familial diseases, or by secondary factors, such as
fatty diets and diabetes [Medline Plus]), coronary artery disease involving
the right coronary artery and a diagonal branch of the left coronary
artery, treated with stents and angioplasty in 1998.  The physician
continued that the coronary artery disease is related to the applicant’s
hyperlipidemia.  The applicant’s shortness of breath and chest pain while
exercising during military training would indicate that the exertional
demand placed on his cardiovascular system could not be met with adequate
perfusion through his coronary arteries and that would indicate that the
onset of the coronary artery disease that led to these symptoms had been in
the process for some years prior to the onset of these symptoms.

24.  On 31 August 2001, a cardiologist stated that the applicant has
“significant heart disease with severe dyslipidemia.  It is clear that
stress and physical exertion can aggravate existing heart disease.  It
seems apparent from [the applicant’s] presentation that his myocardial
infarction was related to stress and physical exertion.”

25.  Army Regulation 600-8-1, in effect at the time, paragraph 41-8 stated,
in pertinent part, that if an Existing Prior To Service (EPTS) condition
was aggravated by military service, the finding will be in line of duty.
If an EPTS condition is not aggravated by military service, the finding
will be not in line of duty, EPTS.  Specific findings of natural progress
of the pre-existing injury or disease based on well established medical
principles alone are enough to overcome the presumption of service
aggravation.  For a Reservist or Guardsman, EPTS can mean the condition
existed prior to enlistment, or it can mean that it had its origin between
periods of duty.

26.  The Court of Claims and the Comptroller General of the United States
have held that short periods of active duty do not give rise to the
presumption of the cause of an illness or disease.

27.  Army Regulation 635-40 provides that the medical treatment facility
commander with the primary care responsibility will evaluate those referred
to him and will, if it appears as though the member is not medically
qualified to perform duty or fails to meet retention criteria, refer the
member to a medical evaluation board.  Those members who do not meet
medical retention standards will be referred to a physical evaluation board
(PEB) for a determination of whether they are able to perform the duties of
their grade and military specialty with the medically disqualifying
condition.  For example, a noncommissioned officer who receives above
average evaluation reports and passes APFT (which have been modified to
comply with the individual’s physical profile limitations) after the
individual was diagnosed as having the medical disqualification would
probably be found to be fit for duty.  The fact that the individual has a
medically disqualifying condition does not mandate the person’s separation
from the service.  Fitness for duty, within the parameters of the
individual’s grade and military specialty, is the determining factor in
regards to separation.  If the PEB determines that an individual is
physically unfit, it recommends the percentage of disability to be awarded
which, in turn, determines whether an individual will be discharged with
severance pay or retired.  An Army disability rating is intended to
compensate an individual for interruption of a military career after it has
been determined that the individual suffers from an impairment that
disqualifies him or her from further military service.    In this regard,
the Army rates only conditions determined to be physically unfitting, thus
compensating the individual for loss of a career.

28.  Paragraph 8-3 of this regulation states that in order for reservists
to receive compensation for disabilities incurred while they are serving on
less than 30 days of active duty, the must be a determination that the
unfitting condition was the proximate result of performing duty.  This
determination is different from a line of duty determination which
establishes whether the soldier was in a duty status at the time the
disability was incurred and whether misconduct or gross negligence was
involved.  Proximate result establishes a casual relationship between the
disability and the required military duty.  This paragraph specifically
states that myocardial infraction may be determined to be the proximate
result of performing duty if precipitated by unusual physical stress
occurring during the performance of extraordinary and particularly
stressful military duties.

29.  Title 10, U.S. Code, chapter 61, Retirement or Separation for Physical
Disability, provides for the retirement and discharge of members of the
Armed Forces who incur a physical disability in the line of duty while
serving on active or inactive duty.  However, the disability must have been
the proximate result of performing military duty.

30.  The Merck Manual of Diagnosis and Therapy states that myocardial
infarctions (heart attacks) are caused in over 90 percent of patients by
plaque rupture which occludes the artery, damaging the (primarily) right
ventricle of the heart.

31.  National Guard Bureau (NGB) Army Regulation (AR) 600-200, paragraph
7-8, states that a soldier may be retained beyond ETS when the unit
commander or state adjutant general determines that the remaining term of
service is insufficient to cover the period of time necessary to complete
personnel actions created by a soldier undergoing board action to determine
qualification for immediate reenlistment.  This paragraph also provides the
authority to extend soldiers who are receiving follow-up medical care or
who are undergoing disability processing due to line of duty disabilities.
Table 7-1 of this regulation contains specific provisions to extend
soldiers who either have not passed the APFT, or who exceed the acceptable
body fat standards.
32.  NGR 40-501, paragraph 17-4, states that the MDRB may request
additional information or consultations, or may direct additional
evaluation by the examiner providing the initial medical evaluation.  The
MDRB will render one of the following recommendations when it has obtained
sufficient medical documentation to render a decision:  Retention in
service and in Military Occupational Specialty (MOS); Reclassification in a
more suitable MOS; or Separation from the ARNG as medically unfit for
retention.

33.  Paragraph 3-5 of this regulation states that Guardsmen who request
restricted duties due for medical reasons will not be allowed to perform
duty until they have been medically cleared.

DISCUSSION AND CONCLUSIONS:

1.  After the applicant’s myocardial infarction and angioplasty, his
medical condition was understandably questionable, which resulted in the
MDRB ordering that he not perform duties until he was given a fitness for
duty evaluation.  Such a directive was within the purview of the authority
granted the MDRB under NGR 600-200.  Such a directive would also appear
reasonable under the circumstances to prevent the possibility of the
applicant from aggravating his medical condition during the performance of
ARNG duties.

2.  While there is no evidence that the applicant was actually scheduled
for the fitness for duty evaluation, his medical history at that point
precluded him from reenlisting.  Since there is no regulatory or statutory
mandate to extend the enlistment of soldiers whose medically qualification
for reenlistment has not been established, extending the applicant’s
enlistment was discretionary by his command.

3.  In this regard, the applicant could not reenlist not only because of
his questionable medical qualifications, but also because he had not passed
the APFT and was overweight.  In consideration of the applicant’s record of
unexcused absences and unsatisfactory performance, it is not surprising
that his command did not extend his enlistment when he had two definite
disqualifications for reenlistment, and one other possible disqualification
(medical) for reenlistment.

4.  This leads to the applicant’s contention that his command was wrong by
not authorizing alternatives to the APFT prior to his angioplasty.  In this
regard, since there is no documentation to substantiate the applicant’s
contention that he requested a medical evaluation or alternative to passing
the APFT, he was required to comply with lawful orders.  When he failed to
do so, he was properly charged with unexcused absences.

5.  However, even if the applicant had been given a fitness for duty
examination and had been determined medically disqualified, the following
considerations would have precluded him from being medically discharged due
to physical unfitness:

      a.  There is no indication that the applicant’s arterial blockage was
due to his military service.  To the contrary, medical records show that he
had arterial blockage long before his entry on IET, and his physician
opined that he experienced difficulties performing physical activities
during IET since he was not receiving sufficient blood to sustain strenuous
activities.  Two of the significant causes of his arterial blockage,
hyperlipidemia and hypercholesterol, would not have occurred during 6-
months of IET or weekend drill.  As such, those conditions must be
considered EPTS.

      b.  While the applicant states that he took the APFT the day
preceding his hospitalization, there is no evidence to support that claim.
However, even if there was evidence to show he took the APFT the preceding
day, there is no clinical evidence or indication that he suffered a
exercise induced myocardial infarction.  While the applicant’s physician
has stated that he believes that the applicant’s physical exertion during
the APFT caused his myocardial infarction, he did not submit any clinical
evidence to support his contention.

6.  In summary, the applicant’s medical problem was a blockage of his
arteries, which was primarily caused by hyperlipidemia and
hypercholesterol, which are primarily caused by genetic factors and diet.
This conclusion is also supported by the statement that was made by the
applicant on 4 March 1998, the day he was admitted for myocardial
infarction and angioplasty, that he had a “strong” family history of heart
disease, he had a history of severe hyperlipidemia and high cholesterol,
and he smoked one pack of cigarettes a day.  These are all contributory
factors to coronary artery disease.  While it is regrettable that the
applicant suffers from these medical problems, they certainly can’t be
attributed to his military service.

7.  Records show the applicant should have discovered the error or
injustice now under consideration on 20 July 1999; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 19 July 2002.  However, the applicant did not file within the 3-
year statute of limitations and has not provided a compelling explanation
or evidence to show that it would be in the interest of justice to excuse
failure to file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

___rjw___  ____mhm  _____rld_  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented and the merits of this
case are insufficient to warrant the relief requested, and therefore, it
would not be in the interest of justice to excuse the applicant's failure
to timely file this application within the 3-year statute of limitations
prescribed by law.




            _________Raymond J. Wagner__________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2003088678                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |YYYYMMDD                                |
|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.       |108.03                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |