RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           24 August 2004
      DOCKET NUMBER:  AR2004101238


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Margaret K. Patterson         |     |Chairperson          |
|     |Mr. Melvin H. Meyer               |     |Member               |
|     |Mr. Patrick H. McGann             |     |Member               |

      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 separation for disability with
severance pay be changed to a medical retirement.

2.  The applicant states that he was found to be unfit with a zero percent
disability rating after suffering a heart attack.  The Department of
Veterans Affairs (VA) awarded him a 70 percent disability rating.

3.  The applicant provides his Medical Evaluation Board (MEB) proceedings;
his Physical Evaluation Board (PEB) Proceedings; a VA Rating Decision dated
      20 July 2002; his active duty orders; his separation orders; and his
DD Forms 214 (Certificate of Release or Discharge from Active Duty) for the
periods ending 28 November 1977 and 16 May 2000.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 16 May 2000.  The application submitted in this case is
dated         15 December 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.  After having had prior service, the applicant enlisted in the U. S.
Army Reserve on 28 March 1983.

4.  The applicant was ordered to active duty in support of Operation Joint
Guard on 23 January 1998.

5.  The MEB Narrative Summary shows that, in September 1998, the applicant
was evaluated for complaints of a sore throat and chest pressure.  He was
sent to a Hungarian hospital for an acute anterior myocardial infarction.
On              10 September 1998, he had a recurrence of his chest pain
symptoms.  The final diagnosis was status post anterior wall myocardial
infarction.  Based on stress echocardiogam evidence, his prognosis was
judged to be very good.  It was recommended he have a 120-day trial of duty
following his convalescent leave.
6.  An Addendum to Medical Board shows that, in November 1998, the
applicant underwent a sleep study which showed he had obstructive sleep
apnea.  He was put on a CPAP (Continuous Positive Air Pressure) machine and
did well.  In January 1999, he began experiencing shoulder pain and it was
discovered he had a partial tear of the rotator cuff.  In February 1999, he
complained of shortness of breath and a sense of air hunger.  Chest x-rays
were normal, an echocardiogram did not reveal any abnormalities, and
pulmonary function tests were normal.  In May 1999, he complained of
headaches and blurred vision.  Reading glasses were recommended for him;
however, a neurologist also felt he had a tension-type headache due to
degenerative joint disease in the cervical [spine].

7.  The Addendum to Medical Board indicated that it was not felt the
applicant's service in the military contributed substantially to his
rotator cuff problem.  He was referred to a PEB.

8.  On 8 October 1999, the applicant underwent a full Bruce protocol
treadmill.  He completed over three stages of the protocol.  He had no
recurrent angina or other symptoms.  He stopped because of fatigue.

9.  The applicant was again referred to a PEB for diagnoses of:  (1) status
post anterior wall myocardial infarction; (2) hyperhomocystinemia; (3)
obstructive sleep apnea; (4) partial tear right rotator cuff; (5) tension
headaches; (6) hypertension; and (7) hypercholesterolemia.  On 29 November
1999, the applicant agreed with the MEB's findings and recommendation.

10.  On 28 December 1999, an informal PEB found the applicant to be
physically unfit and recommended his separation with severance pay with a
zero percent disability rating.  He was notified of the findings of the
informal PEB.  He was informed that it appeared he had 15 years of
qualifying service and could apply for retirement under the Temporary Early
Retirement Authority (TERA).  He was also informed that he could request
continuance in the Active Reserve.

11.  On 10 January 2000, the applicant responded to the PEB findings and
indicated he did not concur with the findings of the informal PEB and
demanded a formal hearing.  On that date, he completed a form indicating
that he would submit an application for early retirement under the TERA and
that he would submit an application for continuation in the Active Reserve.

12.  On 24 January 2000, the applicant completed the reverse of the DA Form
199 and indicated that he concurred with the findings and recommendation of
the informal PEB and waived a formal hearing of his case.

13.  On 3 February 2000, the applicant indicated that he decided not to
make application for retirement under the TERA and requested that he be
separated with severance pay (zero percent).

14.  The applicant was awarded the Army Commendation Medal for meritorious
service as a logistics noncommissioned officer for the period 1 March 1999
to   26 April 2000.

15.  On 16 May 2000, the applicant was separated for disability with
severance pay, in the rank of Staff Sergeant, E-6, after completing a total
of 6 years,            2 months, and 6 days of active service and 16 years,
11 months, and 13 days of prior inactive service.

16.  The VA Rating Decision provided by the applicant shows that his 10
percent rating for coronary artery disease, status post myocardial
infarction, was increased to 30 percent effective 24 August 2001; his zero
percent rating for obstructive sleep apnea was increased to 50 percent
effective 26 September 2001; his 10 percent rating for hypertension was
continued; his 10 percent rating for left rotator cuff tendonitis was
continued; and he was granted a zero percent rating for tension headaches.
He was awarded a combined rating of 70 percent.

17.  Army Regulation 635-40 governs the evaluation of physical fitness of
soldiers who may be unfit to perform their military duties because of
physical disability.  It states that there is no legal requirement in
arriving at the rated degree of incapacity to rate a physical condition
which is not in itself considered disqualifying for military service when a
soldier is found unfit because of another condition that is disqualifying.
Only the unfitting conditions or defects and those which contribute to
unfitness will be considered in arriving at the rated degree of incapacity
warranting retirement or separation for disability.

18.  Army Regulation 635-40 also states that occasionally a medical
condition which causes or contributes to unfitness for military service is
of such mild degree that it does not meet the criteria for even the lowest
rating provided in the VA Schedule for Rating Disabilities (VASRD).  In
such a case, a zero percent rating will be awarded.

19.  Title 38, U. S. Code, sections 310 and 331, permits the VA to award
compensation for a medical condition which was incurred in or aggravated by
active military service.

20.  Title 10, U. S. Code, section 1203, provides for the physical
disability separation of a member who has less than 20 years service and a
disability rated at less than 30 percent.
DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions are noted; however, the VA did not award
him a 70 percent disability rating solely for his status post myocardial
infarction.  Only 30 percent (increased from 10 percent) was awarded for
that condition.  The VA also awarded him 50 percent (increased from zero
percent) for obstructive sleep apnea (50 percent), 10 percent for
hypertension, and 10 percent for left rotator cuff tendonitis.

2.  The Army is not required to rate a physical condition which is not in
itself considered disqualifying for military service.  Only the unfitting
conditions and those which contribute to unfitness will be considered in
arriving at the rated degree of incapacity warranting retirement or
separation for disability.  While an Army sleep study showed he had
obstructive sleep apnea, the Addendum to Medical Board indicated he did
well after being placed on a CPAP machine.  The Addendum to Medical Board
indicated that it was not felt his service in the military contributed
substantially to his rotator cuff problem.  There is no evidence to show
his hypertension rendered him unfit for military service.  The applicant
concurred with the findings of the MEB.

3.  The rating action by the VA does not necessarily demonstrate an error
or injustice in the Army rating.  The VA, operating under its own policies
and regulations, assigns disability ratings as it sees fit.  The VA is not
required by law to determine medical unfitness for further military service
in awarding a disability rating, only that a medical condition reduces or
impairs the social or industrial adaptability of the individual concerned.
Consequently, due to the two concepts involved (i.e., the more stringent
standard by which a soldier is determined not to be medically fit for duty
versus the standard by which a civilian would be determined to be socially
or industrially impaired), an individual’s medical condition may be rated
by the Army at one level and by the VA at another level.  In addition, the
VA may rate a condition that was not found to be unfitting by the Army.

4.  While in the Army, the applicant's status post myocardial infarction
prognosis was judged to be very good based on stress echocardiogam
evidence.  Later, after a complaint of shortness of breath, tests failed to
reveal any abnormalities.  There is no evidence to show that his heart
condition, while unfitting for further military service, was anything other
than mild.

5.  It is acknowledged that the applicant's heart condition and sleep apnea
may have worsened since his separation; however, the Army's rating is
dependent on the severity of the condition at the time of separation.  It
is noted that the applicant was awarded an Army Commendation Medal for
performing duties of a noncommissioned officer up until the time of his
separation.  The VA has the responsibility and jurisdiction to recognize
any changes in medical conditions over time by awarding or adjusting
disability ratings.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 16 May 2000; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on         15 May 2003.  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 timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__mkp___  __mhm___  __phm___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would 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.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




            __Margaret K. Patterson
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004101238                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040824                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |108.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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