RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        10 November 2005
      DOCKET NUMBER:  AR20050000212


      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. Deyon D. Battle               |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Margaret K. Patterson         |     |Chairperson          |
|     |Ms. Linda D. Simmons              |     |Member               |
|     |Mr. Michael J. Flynn              |     |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, in effect, review of his Line of Duty (LOD)
determination.

2.  The applicant states that his LOD determination of 2 August 2004 is
incorrect as his medical records are incomplete and that there was a total
disregard of documentation and additional doctor evaluations.

3.  The applicant provides, in support of his application, copies of his
medical records; copies of doctor's statements; and a letter of objection.

CONSIDERATION OF EVIDENCE:

1.  After completing 6 years, 10 months, and 3 days of prior service in the
South Carolina Army National Guard (SCARNG), he reentered the SCARNG on
20 September 1985, for 6 years, in the pay grade of E-4.  He remained a
member of the SCARNG through continuous reenlistments and he received his
Notification of Eligibility for Retired Pay on 18 December 2000.

2.  On 28 April 2003, while on a 2 week period of active duty for training,
the applicant was admitted to the Moncrief Army Community Hospital, Fort
Jackson, South Carolina, after complaining of pain in his abdominal, having
shortness of breath and being tired with an exertion.  The nature and
extent of his injury was diagnosed as being bronchitis, anemia and possible
alcoholic liver disease.  The attending physician's medical opinion was
that, based on medical records and/or soldier's statement, he was not under
the influence of alcohol or drugs; that he was mentally sound; that his
injury was not likely to result in a claim against the Government; that his
injury was incurred in the LOD; and that his condition may be temporary.
On the Statement of Medical Examination and Duty, the unit commander
indicated that the applicant's injury was not incurred in the LOD and that
a formal LOD investigation was required.

3.  On 6 May 2003 a Report of Investigation LOD and Misconduct Status was
completed regarding the applicant's complaint.  The investigation revealed
that the applicant's diagnosis was acute renal failure, thrombocytopenia,
anemia and posterior diverticulum.  The investigation further revealed that
several medical experts determined that the applicant's conditions were the
result of a history of chronic alcoholism.  The LOD investigation findings
were that his condition was not in the LOD – not due to own misconduct.
The results of the LOD investigation were approved by the appointing
authority and the reviewing authority on 6 May 2003.
4.  A hospital discharge summary, dated 13 May 2003, indicates that the
applicant was transferred from Providence Hospital in Columbia, South
Carolina, and admitted to Spartanburg Regional Medical Center in
Spartanburg, South Carolina, on 2 May 2003, with a discharge diagnosis of
acute renal failure which was not resolved completely.  The discharge
summary indicates that the main etiology looked like post renal
obstruction.  The discharge summary further indicates that the main culprit
was hydronephrosis with neurogenic bladder; thrombocytopenia which was
better; a history of chronic alcoholism; metabolic acidosis, which was much
compensated; anemia; chronic tobacco use; hyperparathyroidism; and
hypocalcemia.  The summary further indicates that the applicant had
preliminary work up done at Providence Hospital and that Spartanburg
Regional Medical Center conducted further work all of which were negative.


5.  In a post hospital discharge visit at Spartanburg Nephrology Associates
on 22 May 2003, the applicant was diagnosed with renal failure, probably
end stage renal disease, secondary to neurogenic bladder.  He was on
medication for his anemia and the attending physician recommended a follow-
up with the urology service to see if there was any chance of recovery from
his neurogenic bladder.  The doctor noted that probably chronic neurogenic
bladder was the source of his renal failure.

6.  On 10 June 2003, the applicant was seen at Spartanburg Nephrology
Associated for a follow-up.  During the visit his general appearance was
totally benign; there was no rub; there was not fluid; there was not
congestion; there was not adema; and there was no crepitation.  His
diagnosis was stage 4 chronic renal failure and he needed to get his anemia
medication changed.

7.  On 21 June 2003, the applicant was notified by Spartanburg Regional
Healthcare System, Emergency Department, that his exam showed that he had a
kidney infection or pyelonephritis.  He was informed that he should rest
for the next few days until he was better.  He was told to drink plenty of
extra fluids and to take all of the antibiotic drugs prescribed by his
doctor.  He was also told that if he had any adverse reactions to contact
his doctor right away.

8.  On 11 July 2003, the applicant forwarded a letter to the LOD
investigating officer indicating that he disagreed with the LOD
investigation report.  In the letter, he stated that his condition occurred
while in the LOD and that all medical exams and reports showed that his
condition occurred while in the LOD.


9.  On 15 July 2003, the Chief, National Guard Bureau approved the
determination of not in the LOD – not do to own misconduct – existed prior
to service – no aggravation for acute renal failure, thrombocytophenia,
anemia and posterior diverticulum.

10.  The applicant was placed on a temporary physical profile on
19 September 2003, which included running at his own pace; bicycling at his
own pace; swimming at his own pace; unlimited walking; push-ups; sit-ups;
wearing a backpack; wearing helmet; carrying a rifle; and firing a rifle.
His temporary physical profile had an expiration date of 19 March 2004.

11.  On 20 November 2003, the Chief, Nephrology Service, Dwight David
Eisenhower Army Medical Center, composed a memorandum addressed "To whom it
may concern" regarding the applicant's return to duty.  In the memorandum,
the Chief indicated that the applicant had a moderate kidney condition,
which had placed limitations on his duty performance as outlined in his
physical profile.  The Chief stated that the applicant may return to duty
provided the restrictions as outlined in his physical profile were
followed.

12.  The United States Army Human Resource Command (HRC), in a memorandum
dated 2 August 2004, notified the Commander, National Guard Bureau, that
after a thorough administrative and medical review of the LOD
investigation, it was concluded that the finding of not in the LOD – Not
Due to Own Misconduct – Existed Prior to Service – No Aggravation for acute
renal failure, thrombocytopenia, anemia and posterior diverticulum was
approved.  The HRC indicated that medical records and correspondence
related to the LOD investigation for the applicant were reviewed by the
Surgeon General's Nephrology Consultant to determine whether his renal
failure was caused or permanently aggravated by military duty.  The HRC
officials stated that the applicant complained of abdominal distention,
shortness of breath, leg swelling, and fatigue a few days after the start
of 2 weeks of ADT and that the symptoms had significantly worsened over the
previous 2 to 3 weeks.  The HRC stated that the next day he was admitted to
the hospital at Fort Jackson and diagnosed with acute renal failure and
probable diverticulum, thrombocytopenia, and anemia.  The HRC stated the
available records supported that the applicant's renal failure and other
conditions had been developing weeks to months prior to that ADT and were
not caused or permanently aggravated by military duty.  The HRC concluded
by stating that the records did not support that the delay in assessment
and treatment of a few days due to waiting for medics to arrive aggravated
the renal failure or compromised the overall care.

13.  On 10 December 2004, a Medical Review Board (MRB) convened to
determine fitness for duty.  The MRB determined that the applicant had
multiple medical problems to include acute renal failure, neurogenic
bladder, chronic back pain, osteoarthritis and hypothyroidism.  The MRB
determined that the applicant was non deployable in accordance with Army
Regulation 40-501, chapter 3-17F and that he should be separated from the
SCARNG.  The Adjutant General (TAG) concurred with the MRB findings on 17
December 2004.

14.  In a memorandum dated 17 December 2004, the Commander, Company C,
178th Engineer Battalion, Timmonsville, South Carolina, was directed to
initiate separation action on the applicant based on the recommendation
made by the MRB.  Accordingly, on 11 January 2005, the applicant was
notified that action to separate him from the SCARNG and as a Reserve of
the Army under the provisions of Army Regulation 135-178, chapter 6, was
being initiated.  In the notification, the applicant's commanding officer
stated that the initiation of separation action was based on other
designated physical conditions not amounting to disability that potentially
interfered with assignment to or performance of military duty.  The
applicant's commanding officer further stated that the reason for his
proposed action was the recommendation made by the MRB that was conducted
on 10 December 2004.

15.  In an undated memorandum, the applicant acknowledged receipt of the
notification of separation and he indicated that he wished to exercise his
right to a hearing before an administrative separation board and to be
represented by counsel during the hearing.

16.  On 31 January 2005, the applicant submitted a letter to Headquarters,
1st Battalion, 178 Field Artillery, SCARNG, stating that he was appealing
the actions to initiate his separation from the military.  In the letter he
stated that he believed that his interests were being jeopardized by the
inaction and lack of response of a captain who failed to respond to his
letter of disagreement with the LOD determination and that not all of his
medical records were available for review.  The applicant stated since the
LOD investigation, he had included additional doctor evaluations that
support the finding that his medical occurrence did in fact take place
while in the LOD.  The applicant also stated that the memorandum from the
HRC dated 2 August 2004 was objectionable material in that there was a lack
of medical records available for review.

17.  On 23 February 2005, the applicant was notified that his request for
appeal of the decision made by the MRB had been denied.  He was informed
that TAG Medical Section could not change the results of his MRB and that
his case was forwarded to the NGB and was returned with a disapproved LOD
determination.  He was again informed that his condition did not occur in
the LOD and he was requested to send forward his 20-year retirement packet.
 The applicant was informed that he had 5 days to contact the
administrative office to schedule a time to go in to complete his
retirement packet and that failure to do so would result in a request for
his discharge being forwarded without his retirement packet.

18.  On 31 March 2005, TAG, South Carolina, was notified that, as required
by the State Medical Discharge Review Board, the applicant had failed to
complete his 20-year retirement packet.  TAG was informed that the unit
administrative officer was able to contact the applicant on 30 March 2005
and told him that his discharge was being sent forward on 31 March 2005
without his retirement packet unless he came in and completed it by the
morning of 31 March 2005 and that the applicant stated that he was not
going to complete his packet.  The applicant stated that he was still
seeking a medical discharge with help from a Senator and other resources.

19.  The applicant's retirement packet was completed on 26 April 2005, in
his absence.  Accordingly, on 1 May 2005, he was honorably discharged from
the SCARNG in the pay grade of E-4 and he was transferred to the Retired
Reserve under the provisions of National Guard Regulation 600-200,
paragraph 8-27u.  He had completed 24 years, 10 months, and 4 days of total
service for retired pay.

20.  On 13 May 2005, an advisory opinion was obtained from the Chief,
Personnel Division, National Guard Bureau, who recommended that the
applicant's request be disapproved.

21.  A copy of the advisory opinion was forwarded to the applicant on 19
May 2005.  In an undated statement, which he forwarded through a
Representative in Congress, the applicant requested an appeal of his LOD
determination.  In his statement, he stated that he believed that all of
his medical records were not reviewed during his MRB and he named an
individual as his counsel.

22.  National Guard Regulation 600-200 prescribes the criteria, policies,
procedures and responsibilities to recruit, enlist, reenlist or extend;
classify; provide initial entry training; assign; promote, appoint and
reduce in grade; bar to extension or immediate reenlistment; select and
appoint to and from Command Sergeant Major; and to separate from service
enlisted soldiers in the Army National Guard of the United States.
Paragraph 8-27u refers to Army Regulation 140-10 for policy and procedures
for the discharge and transfer to the Retired Reserve of soldiers who are
not yet age 60.
23.  Army Regulation 140-10 prescribes policies, responsibilities, and
procedures to assign, attach, detail, remove, or transfer U.S. Army Reserve
(USAR) soldiers. Chapter 6 of this regulation provides for the transfer to
and from the Retired Reserve.  It states, in effect, that assignment to the
Retired Reserve is authorized as listed in this section.  Eligible soldiers
must request transfer if they are medically disqualified, not as a result
of own misconduct, for retention in an active status or entry on AD,
regardless of the total years of service completed.  Failure to request
transfer to the Retired Reserve will result in discharge from the armed
forces.

24.  Army Regulation 600-8-4 prescribes policies and procedures for
investigating the circumstances of disease, injury, or death of a soldier.
It provides standards and considerations used in determining LOD status.
This regulation provides, in pertinent part, that the soldier may appeal,
in writing, within 30 days after receipt of the notice of the LOD
determination required by paragraph 3-13b.  For appeals not submitted
within the 30-day time limit, the reason for delay must be fully explained
and a request for exception to the time limit justified.  The appeal must
be personally signed by the soldier unless the soldier is physically unable
to sign or is mentally incompetent.  In such cases, the appeal will include
evidence of the condition that prevented the soldier from personally
signing.  If a soldier is assigned within the geographic area of
responsibility of the original final approving authority or is a soldier of
the Army National Guard, the appeal will be sent through channels to the
final approving authority. The final approving authority may change his or
her previous determination of "not in line of duty" to "in line of duty" if
there is substantial new evidence to warrant it.  If the final approving
authority determines that there is no basis for a change in the
determination, it will be so stated by endorsement and the appeal will be
sent to HQDA (AHRC-PED-S), Alexandria, VA 22332, for final review and
determination.

DISCUSSION AND CONCLUSIONS:

1.  Not only has the applicant not provided sufficient documentation to
support his contention that his disease was incurred or permanently
aggravated as a result of military service, he has also failed to show that
the findings of the LOD investigation were incorrect.

2.  The applicant's contentions have been noted.  However, they are
unsupported by the evidence of record.  There is no evidence in the
available records that shows that at the time of the LOD investigation or
the MRB that his medical records were incomplete or disregarded.  The
available medical documentation shows that although he was being treated
for his medical conditions while he was on active duty for training, his
renal failure and other conditions had been developing weeks to months
prior to that ADT and were not caused or permanently aggravated by military
duty.  The fact that he continued to be treated after the LOD determination
was made does not substantiate his contentions that his medical records
were incomplete and that documentation was disregarded.

3.  The applicant's dissatisfaction and disagreement with the LOD
determination has also been noted.  However, neither of those reasons,
individually or in sum, is a sufficient basis to warrant the relief
requested.  The LOD determination appears to be appropriate considering all
of the facts in this case.

4.  The applicable regulation states that the applicant must apply to be
transferred to the Retired Reserve and he never applied.  However, his
retirement packet was erroneously submitted in his absence in what appears
to have been an attempt to ensure that he received retired pay at age 60.
Inasmuch as the applicant is not requesting that he be transferred from the
Retired Reserve and since it is not the policy of this Board to make a
individual's position worst than what it was prior to applying to this
Board, no action will be taken to transfer him from the Retired Reserve.

5.  In order to justify correction of a military record the applicant must
show 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.

6.  In view of the foregoing, there is no basis for granting the
applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__mkp___  __lds___  __mjf___  DENY APPLICATION






BOARD DETERMINATION/RECOMMENDATION:

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.



                                        Margaret K. Patterson
                                  ______________________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR200500002121                          |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051110                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  256  |122.0000.0000/LOD STATUS                |
|2.  258                 |122.0000.0000/DISEASE                   |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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