RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        12 October 2006
      DOCKET NUMBER:  AR20050016611


      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. Victoria A. Donaldson        |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. John Infante                  |     |Chairperson          |
|     |Mr. Gerald J. Purcell             |     |Member               |
|     |Ms. Karmin S. Jenkins             |     |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 are provided through counsel.

2.  The applicant statements are provided through counsel.

3.  The applicant provides a ten-page legal brief and exhibits numbered
1 through 15 in support of this application.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the following relief be granted to the applicant:

      a.  removal of the document from his Official Military Personnel File
(OMPF) that separated him from active duty without evaluation of his
disability;

      b.  removal of all documents and references to the applicant's
separation from his OMPF;

      c.  be returned to active duty, retroactive to 31 May 2003 for
evaluation of his medical condition by a Medical Evaluation Board (MEB);

      d.  correction of his records to show that he served continuously on
active duty from 31 May 2003 to the date of completion of his medical
evaluation and legal separation from active duty;

      e. payment of  back incapacitation pay and allowances due to him for
the period 28 February 2001 to the date of completion of his medical
evaluation and legal separation from active duty;

      f.  payment of all regular duty or retired pay and allowances due him
from 31 May 2003 to the date of completion of his medical evaluation and
legal separation from active duty;

      g.  credit for pay and longevity purposes from 31 May 2003 to the
date of completion of his medical evaluation and legal separation from
active duty;

      h.  reimbursement of all medical expenses including transportation
for medical treatment and any medical insurance premiums paid during the
period 31 May 2003 to the date of completion of his medical evaluation and
legal separation from active duty;

      i.  restoration of retirement points for two years of service in the
Massachusetts Army National Guard (MAARNG);

      j.  if medically retired, be given the option to participate in the
Survivors Benefit Plan;

      k.  that his DD Form 214 (Certificate of Release or Discharge from
Active Duty) and separation documents be corrected to indicate that he was
separated or retired from active duty, by reason of physical disability, on
the date that the US Army completes his evaluation and legally separates
him from active duty and;

      l.  that his longevity and retirement pay be recalculated and
adjusted accordingly.

2.  Counsel states that, at the time the applicant was separated from
active duty, he was undergoing medical treatment.  Counsel continues that
after the applicant's heart attack in February 2001, he was never fit for
duty again and as a result, he was summarily separated from active duty,
without proper evaluation of his physical condition and the required MEB
processing.

3.  Counsel argues that the US Army and the MAARNG were fully aware of the
applicant's medical condition at the time of his separation and that he was
not properly represented by military counsel who could have assisted and
advised him of the progress of the administrative process.  Counsel further
argues that the US Army and the MAARNG had a duty to provide the applicant
with proper medical treatment, to obey its own regulations regarding
Fitness for Duty and to provide the applicant with proper, continuing
medical treatment and Physical Disability evaluation.

4.  Counsel contends that the applicant "hoped" to return to Fit for Duty
status but that did not occur because of the severity of his heart
condition.  Counsel states that since the Army failed to properly provide a
physical disability evaluation to the applicant, his case was never sent to
a MEB for review and as a result he never received disability processing
nor any legal counseling.






5.  Counsel argues that the Army's failure to evaluate the applicant for
disability retirement under the terms of Army Regulation 635-40 (Physical
Evaluation for Retention, Retirement, or Separation) even though he met the
requirements, was a violation of its own regulation.  Counsel continues
that the applicant was released from active duty without explanation and
despite his diagnosed disability which he incurred while on active duty
orders, he was never given a disability rating by the Army.

6.  Counsel contends that since the procedures mandated by Army Regulation
635-40 were erroneously not followed by the applicant's chain of command,
there was never provided an opportunity to submit proper documentation of
his medical condition and to have a disability rating assigned.  Counsel
further contends that this error is an injustice and makes the applicant's
record inaccurate and as a result his records should be corrected and he
should be granted the relief requested.

7.  Counsel also argues that during the period between the applicant's
heart attack and his involuntary separation from active duty, the
applicant's proficiency pay was erroneously discontinued.  Counsel contends
that the applicant's proficiency pay was discontinued despite the fact that
he was serving on extended active duty, disabled and undergoing medical
treatment for an active duty injury, and remained willing to immediately
resume his recruiting duties if found Fit for Duty for the entire time that
he was serving on active duty.  Counsel argues that the applicant was
unable to administratively monitor and seek restoration of proficiency pay
due to his disability.

8.  Counsel contends that the Army failed to obey its own disability
processing regulations.  Counsel continues that the Army knew of the
applicant's heart attack and medical condition and separated him from
active duty due to his physical condition.  Counsel argues that the Army
failed to complete the required evaluation of the applicant's physical and
mental condition prior to his separation as required by law and regulation.

9.  Counsel states that after the applicant's separation, he contacted his
Congressional Representative, who referred the matter to the U.S. Army
Inspector General.  Counsel further states that the U.S. Army Inspector
General issued a report which confirmed that the Army committed an error by
failing to provide the applicant with a proper disability evaluation and
that despite this report, the Army failed to take any action to correct the
applicant's status.


10.  Counsel argues that the Army and the MAARNG should accept the DVA
medical evaluations available and retire him from active duty, by reason of
physical disability.  Counsel continues that if the Army does not accept
the DVA evaluations, then the applicant should be returned to active duty
and a medical evaluation be performed by a medical doctor acceptable to
both the Army and the applicant.

11.  Counsel contends that the applicant was entitled to a full and fair
evaluation of his medical conditions prior to his separation as mandated by
law and regulation.

12.  Counsel argues that the Army failed to provide the applicant with an
accurate DD Form 214 (Certificate of Release or Discharge from Active Duty)
as required by law and regulation.

13.  Counsel concludes that the applicant requests the following:

      a.  Find him unfit for duty on 31 May 2003;

      b.  retain his Proficiency Pay during his medical treatment;

      c.  provide incapacitation pay;

      d.  properly evaluate his disability;

      e.  retire him by reason of physical disability;

      f.  properly complete his DD Form 214;

      g.  provide access to or TRICARE reimbursement for , medical care;
and

      h.  provide access to disability retirement benefits.

14.  Counsel provides 15 exhibits identified in the attached List of
Exhibits in support of this application.

CONSIDERATION OF EVIDENCE:

1.  On 6 March 1997, the applicant was notified that he had completed the
required qualifying years of service for eligibility for retired pay at age
60.

2.  On 15 June 2000, the applicant was notified by the Office of the
Adjutant General (OTAG), MAARNG, that his mandatory removal date (MRD)
would be reached in October 1999, and as a result, he would not be
considered for continuation in an active status by the Twenty Year Special
Tour Continuation Board.  The OTAG further informed the applicant that if
his command decided to request an extension and it were approved, he would
not be separated at his MRD.

3.  The applicant's records contain a 15 November 2001 letter from a
civilian physician, who stated the applicant was under his care due to his
cardiac condition, and he recommended the applicant not return to work.
The applicant's records also contain a 7 March 2001 letter from the same
civilian physician, wherein he advised the applicant not to return to work
for at least 30 days due to his cardiac condition.  The applicant's records
contain a third letter from the civilian physician which stated that the
applicant could not return to work for at least thirty days due to his
cardiac condition.

4.  MAARNG memorandum, dated 19 December 2001, shows that the Recruiting
and Retention Commander requested that the applicant undergo a Fitness for
(Duty-sic) Evaluation by Army Medical Personnel at West Point.  The
Recruiting and Retention Commander further stated that the applicant was
unfit for duty due to persistent cardiac perfusion problems.

5.  The applicant's records contain a Department of the Air Force
memorandum, dated 14 December 2001, which shows that a United Stated Air
Force captain, a family physician, reviewed the applicant Cardiovascular
Stress test results and found that "until such time that this blood flow
problem is corrected, he remains unfit for duty and is pending a PEB."  The
physician continued that after some future cardiac intervention, the
applicant may be able to return to limited duty status but, until then was
medically restricted from returning to duty.

6.  On 20 February 2001, the applicant suffered from a myocardial
infarction [a heart attack].

7.  The applicant's records contain a 16 January 2002 letter from a medical
doctor employed by the Harbor Medical Associates.  The medical doctor
stated that the applicant suffered an anterior wall myocardial infarction
in February 2001 and underwent successful angioplasty.  The medical doctor
continued that he recommended that the applicant not return to work.


8.  On 24 February 2002, the applicant provided a two-page statement to the
President of the Qualitative Retention Board.  In his statement the
applicant explained his medical conditions including treatment for a stress
fracture, torn meniscus ligaments sustained as a result of being hit by a
car, and cardiac conditions.  The applicant's requested retention in the
MAARNG, however, stated that if he was not found fit for duty based on his
medical conditions, he requested that he be processed through the Army
physical disability process.

9.  The applicant's records contain a MAARNG memorandum, dated 25 February
2002, which shows that the commander of the MAARNG Headquarters Detachment
4, Recruiting and Retention Command recommended that the applicant be
retained in the MAARNG based on the fact that he was currently seeking
medical treatment for a heart illness.  The commander of the MAARNG
Headquarters Detachment 4, Recruiting and Retention Command further stated
that the applicant had been ill since June of 2001 and since that time had
not been able to take an Army Physical Fitness Test.  He continued that the
applicant would be going to Walter Reed Hospital for a Military Review to
determine if he was medically fit for retention in the military.

10.  Department of the Air Force, Headquarters, 66th Medical Group
memorandum, dated 1 March 2002, shows that the applicant completed
Cardiovascular Stress testing in December 2001 and that based on the
results of that test, the applicant required a second opinion from the
Walter Reed Medical Center.  This memorandum further stated that the second
opinion was needed to evaluate the applicant's fitness for duty and clarify
medical vs. interventional treatment for continued care of his heart
condition.

11.  On 16 April 2002, the applicant was notified by the OTAG, MAARNG, that
he was selected by the Qualitative Retention Board for retention in the
MAARNG.

12.  MAARNG Orders Number 008-02, dated 8 May 2002, terminated the
applicant's Special Duty Assignment Pay (SDAP) for Recruiting and
Retention, effective 1 May 2002.

13.  A Department of the Army, Walter Reed Army Medical Center memorandum,
dated 21 June 2002, notified the applicant of the results of his cardiology
consultation.  The cardiologist that prepared this memorandum opined that
the applicant should be considered by a MEB/PEB and that he also required a
Permanent Profile.

14.  MAARNG Orders Number 219-10, dated 7 August 2002, discharged the
applicant from the MAARNG, effective 31 October 2002 and transferred him to
the Retired Reserve on 1 September 2002.

15.  MAARNG Orders Number 277-3, dated 4 October 2002, revoked MAARNG
Orders Number 219-10, dated 7 August 2002.

16.  US Department of Transportation and US Coast Guard memorandum, dated 4
October 2002, shows that the Commander of the Air Station in Cape Cod,
Massachusetts, evaluated the applicant at Kaehler Memorial Medical Clinic
on 27 September 2002 for retirement purposes.  The commander continued that
he was unable to complete the physical examination due to a number of
medical conditions that required further work-up.  The commander referred
the applicant to Bethesda Medical Center and requested that the applicant
remain on active duty until all of the medical referrals were complete

17.  On 26 October 2002, the applicant submitted a memorandum to the
Active/Guard Reserve Branch Manager of the MAARNG.  The applicant stated
that he was forwarding an update to his current profile and that he was
sent to his primary care doctor for the updates based on his ongoing
evaluations for medications.  The applicant contended that he was "now"
unfit for duty and pending medical review boards.

18.  On 15 November 2002, the applicant sent a letter to the Congressman
from the State of Massachusetts.  In this letter the applicant requested a
formal investigation on his behalf for ongoing "Wrongdoing" by the MAARNG.
The applicant continued that he was given a "backdoor' discharge without
proper representation.  The applicant stated that he provided documentation
which corroborates his allegations that the MAARNG engaged in impropriety
and undue pressure to separate him without benefit of a MEB or PEB.  The
applicant continued that his "pro pay" was revoked and he was never
counseled for inefficiency and his military occupational specialty (MOS)
did not change.

19.  The applicant's letter continued that MAARNG officials sent him for
medical evaluations to West Point, New York and that the West Point medical
officials informed him that he needed to be evaluated by a MEB and that his
MEB was scheduled for 7 January 2001.  The applicant contends that no
further follow-up action was taken by MAARNG.  The applicant argues that a
MEB was requested by his primary care physician twice during his treatment.


20.  The applicant contends that he was constantly given erroneous and
false retirement information by MAARNG officials which hindered his
financial planning for his retirement.  The applicant concluded that he was
forced to resign under undue stress, threats, intimidation, and suffered
through the worst abuse of power imaginable.

21.  On 9 December 2002, the Department of the Army Congressional Liaison
was notified by the Congressman from the State of Massachusetts that the
applicant had requested his assistance with obtaining a date for a MEB.
The Congressman further stated that the applicant alleged that on several
occasions the MAARNG had not been willing to work with him on his issues
which included determining a specific date of a MEB, that the MAARNG
applied pressure on his doctors to discharge him without a MEB, and issues
regarding his Leave and Earnings Statements.

22.  On 21 February 2003, the Chief, Office of Policy and Liaison of the
National Guard Bureau provided a letter to the Representative of the State
of Massachusetts regarding the applicant's request for assistance for
obtaining a MEB.  The Chief, Office of Policy and Liaison stated that the
Office of the Inspector General of the National Guard Bureau carefully
reviewed the applicant's letter and determined that in accordance with
applicable regulations, the issues were under the jurisdiction of the
Department of the Army Inspector General Assistance Division.

23.  On 28 March 2003, the OTAG, MAARNG, provided a memorandum to the
applicant in which he was notified that a review of his medical process was
conducted.  This memorandum identified seven medical appointments during
the period 18 November 2002 through 22 November 2002.  This memorandum
concluded that once his physical examination was concluded, the applicant
would be separated into a retired status and that his medical care would be
transferred to the Veteran's Administration Health System.

24.  The applicant's records contain a National Naval Medical Center,
Department of Psychiatry, Outpatient Clinic, Bethesda, Maryland, Addendum
to Medical Evaluation Board, dated 24 April 2003.  This Addendum was
authenticated by a Psychiatry Resident and a Staff Psychiatrist.  The
Addendum shows that the applicant suffered from a non-debilitating disorder
that had improved with treatment and was considered psychiatrically fit to
return to duty.  The Addendum continued that the applicant was found to be
mentally capable of handling his own financial affairs.

25.  On 29 April 2003, the applicant was notified by letter from the Deputy
Chief of Staff for Personnel of the MAARNG that his letter of concern
regarding his physical condition was received and forwarded to the Human
Resource Office and the Active Guard/Reserve (AGR) Branch Manager.  The
Deputy Chief of Staff for Personnel of the MAARNG advised the applicant of
his outprocessing appointment and of the fact that he would be discharged
on 31 May 2003.

26.  The Deputy Chief of Staff for Personnel of the MAARNG further stated
that he would continue working on the applicant's physical examination
process and that if he was unable to complete the entire exam process prior
to his separation that he would still be able to seek medical assistance
through appropriate medical channels.

27.  On 30 April 2003, the applicant was notified by a Military Personnel
Specialist assigned to the OTAG, MAARNG, that he was scheduled for a
Retirement OutProcessing Brief on 16 May 2003.  The applicant was further
informed that his retirement date was 31 May 2003.

28.  The applicant's records contain a 2 May 2003 memorandum from the
Deputy Chief of Staff for Personnel, MAARNG to the Human Resources Office
of the MAARNG.  The Deputy Chief of Staff for Personnel stated that the
applicant's leave status for the period 21 August 2002 through 31 October
2002 was originally requested as transitional leave but that the
applicant's request was based on his anticipated retirement date of 1
November 2002.  The Deputy Chief of Staff for Personnel continued that the
applicant's retirement action did not happen on 1 November 2002.  The
Deputy Chief of Staff for Personnel concluded that the applicant did not
report for duty for the entire period between 21 August 2002 through 31
October 2002 and he did not take leave nor was he charged for it and as
result he should be charged for the leave that he took.

29.  The applicant's records contain a 2 May 2003 memorandum from the
Deputy Chief of Staff for Personnel, MAARNG to the applicant.  This
memorandum informed the applicant that he was expected to report to duty on
6 May 2003 at 0800.  The memorandum continued that failure to report for
duty could result in disciplinary action or recoupment of wages earned
based on being in an absent without leave (AWOL) status.





30.  The applicant's records contain a 9 May 2003 memorandum from the
Deputy Chief of Staff for Personnel, MAARNG to the Human Resource manager
of the MAARNG.  This memorandum identifies eight periods of leave showing
that the applicant was on Convalescent leave during the period 1 May 2003
through 23 May 2003 with the exception of 14 May 2003, 16 May 2003, 20 May
2003, and 21 May 2003 where he was returned to duty for various
appointments.

31.  MAARNG Orders Number 129-13, dated 9 May 2003, show that the applicant
was released from active duty effective 31 May 2003 and, on the date
following, placed on the retired list.

32.  An NGB Form 22 (Departments of the Army and Air Force-National Guard
Bureau-Report of Separation and Record of Service), effective 31 May 2003,
shows that the applicant enlisted in the MAARNG on 5 July 1991.  This form
shows that the applicant was honorably separated and transferred to the
Retired Reserve after completing 29 years, 7 months, and 3 days for pay
purposes.

33.  MAARNG Orders Number 134-7, dated 14 May 2003, discharged the
applicant on 31 May 2003, and transferred him to the Retired Reserve on 1
June 2003.

34.  The applicant provided a Department of the Army Inspector General
Letter, dated 3 February 2004, to the Massachusetts Representative in
Congress.  The Chief of the Assistance Division of the Inspector General's
Officer stated the applicant was improperly retired from active military
service without benefit of a MEB.  The Chief of the Assistance Division
continued that the applicant suffered a myocardial infarction (heart
attack) which required a MEB.

35.  The Chief of the Assistance Division further stated that the issue
regarding the applicant's contention that his military physician was
inappropriately pressured to submit a discharge document without a MEB was
unfounded.
The Chief of the Assistance Division also stated that the issue regarding
the termination of the applicant's SDAP was unfounded.  He continued that
the applicant's commander properly terminated the applicant's recruiter
SDAP when he was no longer able to perform his duties as a recruiter.  The
Chief of the Assistance Division also stated that the applicant was
properly counseled by his commander on performance of his MOS duties as
result of his medical condition.

36.  The Chief of the Assistance Division stated that the issue regarding
the inappropriate changing of the applicant's medical profile was unfounded
and that the change to his profile was completed in accordance with
applicable regulation.
37.  The Chief of the Assistance Division further stated the issue
regarding the applicant's contention that he was intentionally provided
erroneous data on his retirement was unfounded and that a review showed
that no one intentionally provided incorrect or wrong information about
retirement to the applicant.

38.  A DD Form 214, dated 31 May 2003, shows that the applicant was
honorably separated in the rank of sergeant first class/ pay grade E-7 for
the purpose of retirement.

39.  The Chief of the Personnel Division of the National Guard Bureau
provided a comprehensive advisory opinion for consideration with this case.

40.  The Chief of the Personnel Division recommended partial approval of
the applicant's requests due to the fact that he was improperly discharged
with an inaccurate reason for discharge and without an MEB.

41.  The Chief of the Personnel Division further opined that the applicant
should be returned to active duty, retroactive to 31 May 2003 for a MEB and
a PEB in accordance with Army Regulation 40-501 to determine his fitness
for duty and if found unfit for duty, to determine his disability rating
and medically retire him in accordance with paragraph 8-26(j) of National
Guard Regulation 600-200.

42.  The Chief of the Personnel Division further stated that if the
applicant is returned to active duty from 31 May 2003 through the
completion date of his medical evaluations, he would be due back pay and
retirement points.  The Chief of the Personnel Division continued that
since the applicant is now over age 60, he qualifies for retirement pay for
over 20 years of service and for Reserve Component Survivor Benefit Plan
benefits.

43.  The Chief of the Personnel Division recommended disapproval of the
applicant's request for removal of documents related to his proficiency pay
based on the DA IG determination that the pay was not terminated illegally.

44.  The Chief of the Personnel Division further recommended disapproval of
the applicant's request for incapacitation pay based on the fact that there
was no evidence suggesting that his heart attack occurred in the line of
duty.

45.  A copy of the National Guard advisory opinion was forwarded to the
applicant for review and rebuttal.

46.  The applicant's counsel provided a five-page brief as rebuttal to the
advisory opinion.
47.  Counsel stated that the applicant disagrees with the NGB position that
only partial relief should be granted.

48.  Counsel continues that the applicant disagreed with the NGB statement
"if the applicant is returned to active duty and legally separated, his
retirement will be based on his age and longevity."  Counsel argues that
"if the MEB rates his disability as greater than 30 percent, he will be
entitled to a disability pension in the percentage amount of his base pay-
corresponding to his disability percentage rating- at the time of the
approval of the MEB's findings and his legal separation, which in that case
would be medical retirement."

49.  Counsel further argues that since the applicant was on active duty at
the time of his disability, he is entitled to active duty retirement
benefits, not National Guard or Army Reserve retirement benefits.

50.  Counsel also argues that the applicant disagrees with the NGB opinion
that his proficiency pay was not terminated illegally.  Counsel contends
that the applicant's records are devoid of any official orders removing him
from recruiting duties which were the basis of his proficiency pay.
Counsel further states that there is an entry in a State Order, dated 8 May
2002, discontinuing his proficiency pay on 1 May 2002 but as attested to by
letter from MSG B and an email from SFC G, attached to this rebuttal, the
applicant continued to be assigned to a position involving "Recruiting,
Retention, and Unit attrition management" until his erroneous separation on
31 May 2003.

51.  Counsel continues that the applicant held a 79T MOS until his
erroneous separation in May 2003 and that the applicant met all of the
criteria listed in Army Regulation 135-205 for receipt of SDAP.  Counsel
continues that the applicant held the MOS, award level, and was assigned to
a position involving "Recruiting, Retention, and Unit attrition management"
and therefore is entitled to receive SDAP in the amount of $375.00 per
month.

52.  Counsel contends that the applicant disagrees with the NGB statement
that no evidence was found suggesting his heart attack happened in the line
of duty.  Counsel argues that the applicant was ordered to active duty in
October 1991 and that while on duty as a US Army Recruiter in
Massachusetts, in February 2001, he suffered a severe heart attack.
Counsel continues that these uncontroverted facts establish that the
disability incurred while on active duty and in the line of duty.  Counsel
contends that contrary to the NGB statement, there is no evidence in the
record to establish that the disability is anything other than in the line
of duty.

53.  Counsel concludes that since the NGB advisory opinion admits that the
Army/MAARNG committed errors, the applicant requests that the ABCMR:

      "(1)  take the action necessary to restore his military record to its
condition prior to 31 May 2003;

      (2)  take the action necessary to restore his entitlement to SDAP;

      (3)  direct the Army/MAARNG to return him to active duty, retroactive
to 31 May 2003 for the purpose of MEB processing;

      (4)  recommend that the MEB adopt his current DVA disability award
rating and percentage;

      (5)  hold this proceeding in abeyance, pending the results of the MEB
processing;

      (6)  allow such further submission by the parties as are necessary
following the results of the MEB processing; and

      (7)  thereafter, take final action on the remaining requests for
relief."

54.  Army Regulation 635-40 establishes the Army Physical Disability
Evaluation System (PDES) and sets forth the policies, responsibilities, and
procedures that apply in determining whether a Soldier is unfit because of
physical disability to reasonably perform the duties of his or her office,
grade, rank, or rating.  It states, in pertinent part, that after
establishing the fact that a Solider is unfit because of a physical
disability, and that the Soldier is entitled to benefits, the PEB must
decide the percentage rating for each unfitting disability.  The VASRD, as
modified in the regulation, is used to establish this rating.

55.  Chapter 3 of Army Regulation 635-40 contains the policy and outlines
the standards for determining unfitness because of physical disability.  It
states, in pertinent part, that the mere presence of an impairment does
not, of itself, justify a finding of unfitness because of physical
disability.  In each case, it is necessary to compare the nature and degree
of physical disability present with the requirements of the duties the
soldier reasonably may be expected to perform because of his or her office,
grade, rank, or rating.  Paragraph 3-3b(1) states, in pertinent part, that
for an individual to be found unfit by reason of physical disability, he
must be unable to perform the duties of his/her office, grade, rank or
rating.

56.  Chapter 8 of the disability regulation contains the rules and policies
for disability processing of Reserve Component (RC) Soldiers.  It states,
in pertinent part, that a RC Soldier will be referred for medical
processing through the PDES when a commander or other proper authority
believes that Soldier is unable to perform the duties of his or her office,
grade, rank, or rating because of physical disability.  It also specifies
that this fitness determination is different from a LOD determination,
which establishes only 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.

57.  Title 38, United States Code, sections 1110 and 1131, permit the
Department of Veterans Affairs (VA) to award compensation for disabilities
which were incurred in or aggravated by active military service.  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.  The VA, which has neither the authority, nor the
responsibility for determining physical fitness for military service,
awards disability ratings to veterans for conditions that it determines
were incurred during military service and subsequently affect the
individual’s civilian employability.  The VA, however, is not required by
law to determine medical unfitness for further military service.  The VA,
in accordance with its own policies and regulations, awards compensation
solely on the basis that a medical condition exists and that said medical
condition reduces or impairs the social or industrial adaptability of the
individual concerned.

58.  Army Regulation 135-205 (Army National Guard and Army Reserve-Enlisted
Personnel Management) prescribes policies and responsibilities for Special
duty assignment pay (SDAP) for Army National Guard of the United States
(ARNGUS) and U.S. Army Reserve (USAR) personnel.  Chapter 2-1a applies to
ARNGUS and USAR Soldiers.  SDAP is a monetary incentive paid to enlisted
Soldiers who qualify for and serve in the following special duty (SD)
assignments:

(1) Recruiter (military occupational specialty (MOS) 79R).
(2) Recruiting and Retention NCO (ARNGUS) (MOS 79T).
(3) Retention and Transition NCO (USAR) (MOS 79V).
(4) Drill sergeant (special qualification identifier (SQI)-X).
(5) Command sergeant major (MOS 00Z), where rater, senior rater, and
reviewer are all general officers or civilian equivalent.
(6) Special Forces (CMF 18).
(7) Air Traffic Control Operator (MOS 15Q).
(8) Criminal Investigation Command Special Agent (MOS 31D).
59.  Chapter 2-2 of the Reserve personnel management regulation provides
guidance on the individual eligibility criteria.  It specifically states
that an enlisted Soldier in a SD assignment is eligible to receive SDAP if
all the conditions below are met. The Soldier must meet the following:

a. Be entitled to basic pay and serving on active duty, full-time National
Guard duty (FTNGD), full-time National Guard duty for special work, annual
training (AT), active duty for special work (ADSW), temporary tour of
active duty (TTAD), active duty for training (ADT), or serving on inactive
duty training (IDT)).
b. Be serving in the grade of private first class or higher.
c. Have completed special schooling required for qualification in the
special duty assignment to which assigned.
d. Be qualified for and serving in the designated special duty assignment.
e. Not be receiving proficiency pay or any other type of SDAP.

60.  National Guard Regulation-Army Regulation 135-381 (Management of the
Army National Guard Incapacitation System) provides information and
procedures for management of incapacitation benefits for Army National
Guard personnel.  Paragraph 1-5 states, in pertinent part, that the Soldier
must incur or aggravate an injury, illness, or disease in the line of duty
in order to qualify for incapacitation pay.  This regulation further states
incapacitation benefits are pay and allowances reduced by any earned income
from non-military employment or self-employment and to be eligible for
incapacitation benefits, personnel must be able to demonstrate a loss of
income from non-military or self-employment.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, through his counsel, that he is entitled to
removal of all documents from his OMPF that refer to his separation from
active duty without evaluation of his disability; and that he should be
returned to active duty, retroactive to 31 May 2003, for evaluation of his
medical condition through the Army's PDES.

2.  The evidence of record clearly shows that the applicant was erroneously
separated from the MAARNG without benefit of evaluation of his medical
condition through the Army's PDES, as recommended by his attending
physicians.  However, the evidence of record also clearly shows the
applicant voluntarily requested retirement for length of service, and that
his retirement was based on this voluntary request.  While these facts
support his processing through the PDES to determine if the reason for his
retirement should be changed to physical disability vice length of service,
it does not support his reinstatement on active duty and service credit for
active duty service he did not complete, as requested by the applicant and
his counsel.

3.  As indicated above, the applicant's record indicates he suffered from a
medical condition that supported his disability processing through the PDES
prior to his separation from the MAARNG.  Therefore, it would be
appropriate for the MAARNG to process the applicant through the Army PDES
to determine if the condition in question would have supported his
retirement by reason of physical disability, and if so, what percentage of
disability he would have been entitled to.

4.  Evidence of records show that the applicant underwent medical
evaluation in the areas of cardiology, ophthalmology, mental health,
alcohol/substance abuse, and gastroenterology prior to his retirement.

5.  If after the applicant completes his PDES processing, the PEB
determines he should have been retired by reason of physical disability,
the Defense Finance and Accounting Service (DFAS) should audit his
financial record and provide him any back retired pay due as a result based
on the percentage of disability awarded.  The MAARNG should arrange all
required PDES appointments to include PEB processing, and provide for the
applicant's transportation and travel needs to and from the PDES processing
sites.

6.  The contention of the applicant and his counsel that he was denied the
opportunity to enroll in the SBP upon his retirement was also carefully
considered, and found to have merit.  The evidence of record contains no
indication that the applicant completed the required SBP forms in
conjunction with his retirement processing.  The record shows he was never
given the opportunity to enroll in the SBP.  Thus, it would appropriate to
allow him to complete the necessary forms and to correct his record to show
he was enrolled in the SBP accordingly, effective the date of his active
duty retirement.

7.  Notwithstanding the NGB advisory opinion, based on the fact the
applicant was retired from active duty under active service provisions of
the law, he will never be retired under non-regular provisions of the law.
Therefore, it is not necessary nor appropriate to award the applicant
additional retirement points or to address Reserve retirement benefits to
which he would or could have been entitled to upon reaching age 60.  The
applicant even after being processed through the PDES will remain on the
active duty Retired List and will retain his entitlement to retired
benefits, to include the SBP, based on that status.


8.  The applicant also contends that he is entitled to incapacitation pay
and allowances due to him for the period 28 February 2001 to the date of
completion of his medical evaluation and legal separation from active duty.
 However, there is insufficient evidence to support this claim.
Incapacitation pay is designed to compensate Reserve Component personnel
for the loss of civilian wages that result from an incapacitation that was
incurred in the line of duty.  The applicant was serving on active duty at
the time he incurred his heart attack.  Therefore, his entitlements flow
from that status and he lost no civilian wages.

9.  The applicant also requests reimbursement of all medical expenses
including transportation for medical treatment and any medical insurance
premiums paid during the period 31 May 2003 to the date of completion of
his medical evaluation and legal separation from active duty.  There are no
provisions of law or regulation that allow this Board to provide the
reimbursement requested, and it is anticipated that the applicant will be
made whole by the recommendation of this Board that he complete processing
through the PDES.  Therefore, there is an insufficient evidentiary basis to
support granting this requested relief.

10.  The applicant and his counsel also contend that he is entitled to
restoration of SDAP.  However, although the applicant was not properly
processed through the Army's PDES based on his illness, his medical records
clearly show that he was diagnosed and treated for the effects of a severe
myocardial infarction, and his chain of command indicated he was unable to
perform the strenuous duties required by his recruiter MOS, which resulted
in the termination of his SDAP.  In effect, his medical disqualification
from performing recruiting duties resulted in his ceasing to perform those
duties upon which his SDAP was based.  Given SDAP is authorized
specifically based on the performance of special duties, in this case
recruiting duties, it would not be appropriate to provide the applicant
SDAP for a period he was not actually performing those duties, even if he
remained assigned to the organization.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

__KSJ______  _JI____  _GJP__  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for partial relief.  As a result, the Board
recommends that the all Department of the Army records of the individual
concerned be corrected by:

      a.  Arranging for him to be processed through the PDES, which
includes placing him before a MEB/PEB to determine the extent and nature of
his disability, and if his PDES processing results in a disability
determination and percentage rating, that an audit of his pay records be
completed by the Defense Finance Accounting Services and he be provided any
back retired pay due as a result; and

      b.  that he be provided the opportunity he was denied to enroll in
the SBP, effective the date of his active duty retirement.

2.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to
incapacitation pay, SDAP benefits, reimbursement of all medical expenses
including transportation for medical treatment and any medical insurance
premiums paid, and removal of all documents and references to the 31 May
2003 retirement from his official military personnel file.




                                       _John Infante__
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050016611                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061012                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(NC, GRANT , DENY, GRANT PLUS)          |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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