RECORD OF PROCEEDINGS


         IN THE CASE OF:


         BOARD DATE: 04 MARCH 2004
         DOCKET NUMBER: AR2003090225


         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
Ms. Deborah L. Brantley		Senior Analyst

The following members, a quorum, were present:

Ms. Kathleen A. Newman		Chairperson
Mr. Kenneth L. Wright		Member
Mr. Eric N. Andersen		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 that he be declared “not fit for duty because of a potentially fatal cardiac condition,” that his March 2002 resignation from the military be accepted, that he be honorably discharged, and that he “be deemed to have no further obligation under the Health Professions Scholarship Program (HPSP).”

2. The applicant deferred to counsel for his statement.

3. The applicant deferred to counsel for documents to support his request.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE :

1. Counsel requests that the applicant’s records be corrected to show that he is not fit for entry or retention on active or inactive duty by reason of an unfitting cardiac condition and that whether or not that relief is granted, that the applicant be honorably discharged in accordance with his 26 March 2002 resignation, and that he be released from any obligations under the Health Professions Scholarship Program. He also requests any other relief, which may be just and proper.

2. Counsel states that the applicant is a 2000 University of Minnesota Medical School graduate under the HPSP. Following completion of medical school, he served on active duty while completing an internship at Madigan Army Medical Center.

3. While undergoing a routine pre-flight medical examination, the applicant was diagnosed with a potentially fatal cardiac condition, “prolonged-QT syndrome.” The treating cardiologist directed that the applicant undergo a Medical Evaluation Board (MEB).

4. Counsel states that the Director of Intern Training at Madigan Army Medical Center authored a letter on 23 April 2001 indicating that the applicant had a congenital condition which would have “absolutely no impact on his ability to perform as a resident or staff physician” but that the condition would “have an impact on his ability to continue as an officer in the Armed Forces.” The Director of Intern Training continued his statement by noting that the applicant would be “undergoing a Medical Evaluation Board” and that it was “very likely that as a result of this process, he will be found ‘Unfit for Duty’ in the military.”

5. Counsel states that the applicant prepared a letter for the Medical Evaluation Board (MEB) explaining his condition. His supervisor also noted in a letter to the MEB that while the applicant will succeed in any profession, including orthopaedics, he was concerned that his medical condition and permanent profile would “severely restrict his deployability and assignments.” As a result of these concerns he could not endorse the applicant’s retention on active duty.

6. Counsel states that the applicant was given a permanent P4 profile in May 2001 and precluded from strenuous duty or mandatory physical training, and it was directed that he should not be assigned to isolated areas where definitive medical care was not available.

7. While undergoing the Physical Evaluation Board (PEB), the president of the PEB requested additional information concerning the applicant’s condition indicating that the applicant’s physical profile “seems overly restrictive for the soldier’s physical condition.” The Chief of Cardiology Services at Brooke Army Medical Center responded in a memorandum to the president of the PEB that the applicant’s condition was “associated with up [to] a 10% incident of sudden death” and that in “85% of these cases, the fatal arrhythmia is precipitated by exertion.” The physician stated that it was not that the applicant could not perform physical training but that is was inadvisable for him to do so because it could increase his risk for sudden cardiac death.

8. Counsel stated that in spite of this medical evidence and advice available to the PEB, the applicant was found fit for duty. Counsel argues that the applicant’s medical condition was such that he should have been found unfit.

9. Counsel states that in 2001 the applicant’s request for release from active duty was granted in order for him to obtain training as an orthopaedic resident under the Nonfunded GME (Graduate Medical Education) Program. He states that as part of his “exit interview” he was advised to submit a letter of resignation because his “reserve component” would not “keep him on with a P4 Profile, as he would be undeployable.”

10. Counsel states the applicant submitted a request for resignation, which was denied, with no explanation and instead was told to submit documents for his education delay. The educational delay would prevent him from fulfilling his active duty service obligation under the HPSP until completion of training.

11. Counsel states that the applicant was accepted for a “civilian position for residency based on documents sent by the Army to the University of Minnesota and National Residency Review Committee implying that [he] was being medically discharged from the Army.”

12. Counsel argues that the applicant’s request for resignation should have been accepted and that he should be honorably discharged because of his potentially lethal cardiac condition. He states that it is “irrational to retain him, unless doing so is a function of his past receipt of HPSP scholarship funds” and that “such a vindictive approach is clearly not in keeping with the Army’s high standards.”
13. Counsel states that even though the applicant’s medical condition should have led to a “Not Fit for Duty” determination, his condition nonetheless affords the Secretary of the Army a basis for discharging him under the “Secretary’s plenary authority to discharge personnel.” He notes such a discharge would be fair “in light of the arrangements the University of Minnesota Medical School made in reasonable reliance on assurances that he would be receiving a medical discharge.”

14. Counsel provides numerous documents extracted from publications by the SADS (Sudden Arrhythmia Death Syndromes) Foundation regarding Long QT Syndrome (LQTS), documents associated with the applicant’s Army disability processing, documents associated with his acceptance as a resident at the University of Minnesota Medical School in orthopaedic surgery and release from active duty under the Nonfunded GME Program, a copy of the letter denying his request for resignation, an extract from the Military Law Review regarding disability processing, and a publication discussing the dilemma faced by a General John D. Lavelle during the Vietnam Era regarding the importance of integrity and the sacrifice of leaders for the interest of the organization, the people, and the country.

CONSIDERATION OF EVIDENCE:

1. Records available to the Board indicate that the applicant obtained an undergraduate and graduate degree from the University of Denver in 1994 and 1996, respectively. He executed an oath of office as a second lieutenant in the United States Army Reserve on 16 July 1996.

2. On 16 July 1996 the applicant also executed a Health Professions Scholarship Program Agreement. In the agreement, the applicant indicated that he understood that “selections for residency training in a nonmilitary hospital are made by the Army from among the applicants requesting training in a given specialty, and that the number approved for such training is determined by the Army’s projected requirements for specialists qualified in each specialty.” The agreement continued by indicating that the applicant understood that “if selected by the Army for civilian specialty training, I understand that deferment from active duty will be for the purpose of performing the requested residency and for the period of time usually required to complete training in that specialty.” He indicated that he understood that “upon completion of a civilian residency, I will be ordered to active duty.” The agreement indicated that the applicant, “in return for 4 years” of participation in the HPSP, he would serve on extended active duty for 4 years, and in the Individual Ready Reserve for 4 years.

3. The applicant completed his medical degree at the University of Minnesota in 2000 and on 11 June 2000 entered active duty for a period of 5 years. His active duty orders indicated that his 5-year active duty commitment included his 4-year “incurred obligation” and 1 year of training for First Year Graduate Medical Education (FYGME) Program (internship) in orthopaedic surgery beginning
1 July 2000 and ending on 30 June 2001.

4. A 23 April 2001 memorandum, provided by counsel in support of the applicant’s petition, notes that “on a routine pre-flight physical examination [the applicant] was found to have a prolongation of his QT interval on his electrocardiogram.” The date of the examination is not mentioned in the memorandum, but the applicant’s petition does contain a copy of an electrocardiogram. The author of the memorandum was the Director of Intern Training at Madigan Army Medical Center. The memorandum was addressed to the Department Chairman, Orthopedics Department, Minnesota Medical Center, in Minneapolis and is cited by counsel as the letter that served as the basis for the Minnesota Medical Center to award the applicant a residency position.

5. The Director of Intern Training indicated that he fully supported the applicant’s pursuit of residency training in the field of his choice and that the applicant “will be undergoing a Medical Evaluation Board with the Army” and that it “is very likely that as a result of this process, he will be found ‘Unfit for Duty’ in the military.”

6. A 30 April 2001 letter from the Department Chairman, Orthopedics Department, Minnesota Medical Center (the individual to which the memorandum had been sent) to an individual at the Accreditation Council for Graduate Medical Education, forwarded “some correspondence from the Army” regarding the applicant. The Department Chairman noted in his correspondence that the applicant “was found to have an abnormal EKG and based on this the Army will be releasing him from his military obligation, considering it paid in full.” The Department Chairman indicated that the applicant would be the “seventh addition to the G2 class beginning in 2001 or 2002” and that he “did not believe that his EKG abnormality will place him at risk in doing his orthopaedic training” and that “we would like to train him here at the University of Minnesota.” The Department Chairman concluded his correspondence by stating that “we believe that we can provide him with an optimum orthopaedic education while enhancing the training of our other orthopaedic residents.”

7. In response to the Department Chairman’s correspondence, on 4 May 2001 he was authorized by the Residency Review Committee of the ACGME (Accreditation Council for Graduate Medical Education) to “appoint [the applicant] to begin the program as a PGY-2 resident on July 1, 2001.”

8. On 15 May 2001, after the applicant had already been accepted for the residency program at the University of Minnesota, he was issued a permanent P4 medical profile for “prolonged QT syndrome.” The profile indicated that the applicant should not participate in any strenuous duty or mandatory APFT (Army Physical Fitness Training) and should not be assigned to isolated areas where definitive medical care (Armed Forces hospital/Armed Forces Medical Center) was not available. The physical profile appears to have been issued as part of the applicant’s disability processing.

9. The only portion of the applicant’s MEB process available to the Board were two pages of the MEB Narrative Summary, which indicated that the “MEB is directed by the treating Cardiologist.” The narrative summary indicated that general physical examination performed on 23 March 2001 was within normal limits, that his electrocardiogram showed “normal sinus rhythm, prolonged QTc interval of 480 to 540 msec, and multiple T waves with notching pattern (3).” It indicated that his “chest radiograph was within normal limits” and that an “echocardiogram performed on 18 April 2001 was also within normal limits.” A graded exercise test showed the Soldier “exercised the equivalent of 18 minutes on accelerated Full Bruce protocol, to heart rate of 176, equivalent to 20 METs.” He was without symptoms, no dysrhythmia was noted, and the “QT shortened somewhat with exercise.” The MEB Narrative Summary was dictated and transcribed on 15 May 2001.

10. The completed MEB proceedings, which would have included the MEB findings and recommendation, and the applicant’s concurrence or nonconcurrence of those findings, were not available to the Board.

11. An informal PEB convened on 8 June 2001. As part of the PEB process, the applicant submitted a letter outlining the risks of long QT syndrome and its impact on him professionally. He indicated that he had two children, one of which “may already be symptomatic” for the same condition that he has and that the requirement for “unique educational and social environments” would not be “amenable to frequent changes of station.” He concluded that to retain him “for nine more years (training and commitment combined) would be unfair to the Army, my colleagues, my family, and myself.” He stated that he “joined the service to be a soldier.”

12. The informal PEB found the applicant fit for duty. The PEB noted that:

In making this decision, the Board has carefully reviewed the medical data and other facts presented and has given full consideration to the soldier’s desires as well as the recommendations of the chain-of-command. It is also noted that: command statement indicates soldier is fully capable of successful performance in primary specialty and in spite of profile restrictions, fit call was made because as a physician he is still able to practice medicine unencumbered. Profile restrictions are to minimize risks of arrhythmia caused by prolonged QT syndrome. Has demonstrated physical capacity of 20 METS (without arrhythmia) and PT test scores 300.
13. On 18 June 2001 the applicant nonconcurred with the findings of the informal PEB and submitted a personal statement appealing the decision of the PEB. The personal statement was not included as part of the applicant’s appeal to this Board.

14. The applicant’s supervisor (Director, Orthopaedic Residency Program, at Madigan Army Medical Center) also provided a statement to the PEB as part of the applicant’s appeal. His statement indicated that he had no doubt that the applicant “has the potential to succeed in any medical profession.” However, he also noted that because the applicant “is at significant risk for unheralded cardiac death, patient care could be compromised should he have no immediate backup…[and]…his medical condition and permanent profile will severely restrict his deployability and assignments.”

15. The applicant’s appeal was denied. In the denial notification, he was told that “no new or additional medical information was provided for the Board to consider when reviewing your case.” The denial memorandum also noted that the PEB was bound by provisions of the Department of Defense Instructions which stated that “a medical officer in any grade shall not be determined unfit because of physical disability if the member can be expected to perform satisfactorily in an assignment appropriate to his or her grade, qualifications, and experience. Thus, the inability to perform specialized duties or the fact the member has a condition which is cause for referral to a PEB is not justification for a finding of unfitness.”

16. There is no indication the applicant requested or appeared before a formal PEB.

17. An 11 July 2001 letter from the Graduate Medical Education Division, addressed to the applicant, confirmed “approval of your release from active duty (REFRAD) under the auspices of the Nonfunded GME Program (NGMEP).” The letter noted that as a participant in the NGMEP he was considered a student in the civilian GME specialty delay program. The letter indicated that his training program in orthopaedics would begin on 1 August 2001 and was scheduled for completion on 30 June 2006. Therefore his “entry for return to active duty is mid July 2006.”

18. The applicant was released from active duty on 20 July 2001 under the provisions of Army Regulation 600-8-24, paragraph 2-5 (miscellaneous/general reasons).

19. In March 2002 the applicant submitted a request to resign his commission. He cited his medical condition, his permanent profile, and the recommendation of his commander, in spite of the PEB decision that he was fit for duty, as the basis for his resignation request. He also indicated that resigning from the Army was “the responsible decision” and that he felt his discharge from active duty was handled improperly. He stated that his resignation “will avoid protracted investigations, both congressionally or through legal processes, into these circumstances.” He sent the resignation request to the Graduate Medical Education Division. That office informed the applicant that while they managed his graduate medical education (GME) records while he was a participant in the specialty delay program, they had no authority to act on his resignation. Hence that office forwarded his resignation to the United States Army Reserve Personnel Command in St. Louis.

20. In an 8 November 2002 letter, the applicant was informed that the Assistant Secretary of the Army, Manpower and Reserve Affairs, had considered and denied his request for resignation. The letter noted that the applicant was required to fulfill his active duty obligation immediately upon completion, withdrawal, or termination of training of his orthopaedics residency program. The letter indicated that the applicant was required to renew his deferment annually by complying with correspondence sent to him by the Medical Education Directorate (Graduate Medical Education Division).

21. Included as part of the applicant’s petition to this Board were letters he submitted to the Graduate Medical Education Division in response to requests for him to complete forms as part of his deferral from fulfilling his active duty service obligation based on his HPSP under the Nonfunded Graduate Education Program. The correspondence was exchanged while his resignation action was pending. In his correspondence he argued, in effect, that he had obtained the residency position at the University of Minnesota because the agency believed that he was being discharged from the military for unfitness, based on his long QT syndrome. He also noted that he had submitted a request for resignation and expected to be “fully released from further active duty obligations.” Ultimately, however, after several exchanges of correspondence, the applicant completed the required deferral forms and was informed that his application for continuation of his deferment had been approved. Telephonic information obtained from the Graduate Medical Education Division by a member of the Board’s staff confirmed that he was still being carried as a participant in the Nonfunded Graduate Education Program.

22. In the processing of this application an advisory opinion was provided by the Office of The Surgeon General. The opinion noted that since the determination of fitness was the purview of the PEB, they could only opine on the question of whether the applicant met medical retention standards. The opinion stated that the applicant was referred to the PEB based on his diagnosis of long QT syndrome “which caused him to not meet medical retention standards….” However he was “found fit despite his significant physical profile restrictions” and allowed “to leave active duty and begin a non-funded residency program as a member of the USAR [United States Army Reserve].” The opinion noted that the applicant was “recently diagnosed with bipolar disorder” and was being treated with lithium. They stated that he did not meet medical retention standards due to the new diagnosis and was not qualified for active duty and “should be discharged from the US Army Reserves.”

23. The opinion was provided to the applicant and his counsel who responded that “in light of all of the evidence now of record, it is clear that the relief stated…in support of the application should be granted, and should be based on both the LQTS and bipolar diagnoses.”

24. There is no indication in available documents that the applicant has been referred for disability processing based on his bipolar disorder.

25. Documents provided by the applicant and his counsel in support of his petition that were extracted from publications by the SADS (Sudden Arrhythmia Death Syndromes) Foundation regarding Long QT Syndrome (LQTS), indicate that LQTS is a disorder of the electrical system of the heart. In one document it stated that LQTS is “a disturbance of the heart’s electrical system, causing an abnormality of the heartbeat, or rhythm, called arrhythmia. Because of the arrhythmia, affected people are vulnerable to sudden loss of consciousness (syncope) and even death. Unfortunately, many times the cause of the syncope is overlooked and the events are called simple fainting spells or seizures. Most often, these events occur during physical exertion or emotional stress. In some they occur during sleep. Fortunately, most of these deaths are preventable if the condition is recognized and treated.” The document also stated that “treatment is very effective in the vast majority of patients.”

DISCUSSION AND CONCLUSIONS :

1. The evidence confirms that the applicant completed medical school and a one-year internship at government expense under the HPSP. As a result of the military’s investment in the applicant’s medical training he was obligated to serve on active duty for a period of 4 years, and 4 additional years as a member of the United States Army Reserve. The applicant signed an agreement to that effect.

2. There is no disputing the fact that the applicant has been diagnosed with long QT syndrome and was referred to a PEB. The PEB, however, determined that his condition did not render him unfit for continued military service and that he could function as a physician within the constraints of his profile.

3. While the applicant and his counsel maintain that the PEB’s finding was erroneous, they have provided no conclusive medical evidence which confirms that the applicant cannot fulfill his military service obligation as a physician within the constraints of his permanent physical profile. His contention that his profile limitations could impact his career, or that he may not be able to participate in the entire range of military duties, is not evidence that he is unfit.

4. The applicant’s continued pursuit of his medical training is evidence that even he believes that he can be successful as a physician and function in that capacity, in spite of his medical condition. The argument that because he “is at significant risk for unheralded cardiac death” is noted. However, his profile limitations are intended to decrease the risks which could lead to a cardiac event.

5. What is less clear from the evidence provided by the applicant and his counsel is the sequence of events that led to his appointment as a resident at the University of Minnesota. The applicant tends to suggest that the appointment was the result of the appointing officials believing he was going to be medically discharged from the Army, however, the documents leading up to the appointment pre-dated that applicant’s PEB.

6. The records show that his release from active duty was the result of his admittance into the Nonfunded GME program, and counsel so states in his arguments. The Nonfunded GME program would merely enable him to delay completing his active duty service obligation until completion of the additional training and would not have served as a basis to justify his resignation.

7. However, notwithstanding the confusion over the sequence of events, or the basis for his admission to the Nonfunded GME program, the fact remains that the applicant’s long QT syndrome was determined not to be unfitting within the constraints of his physical profile and as such he is obligated to complete the requirements of his HPSP.

8. There is no evidence that the applicant’s recent diagnosis of bipolar disorder has been evaluated under the Army’s disability program. Hence it would be improper for the Board to render a fitness decision based on that diagnosis without first permitting the Army’s disability system to evaluate the applicant’s current situation.

9. Counsel’s argument that the military’s insistence that the applicant fulfill his HPSP scholarship agreement is somehow vindictive is without foundation. The evidence, in spite of counsel’s arguments to the contrary, indicates that the applicant can perform the duties of a physician on active duty for which he received his training under the scholarship program. As such, there is no basis to grant the relief requested.

BOARD VOTE:

________ ________ ________ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

__ KAN __ __ KLW __ __ ENA __ 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.





                  __Kathleen A. Newman___
                  CHAIRPERSON

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INDEX

CASE ID	AR2003090225
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20040304
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.