RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        12 SEPTEMBER 2006
      DOCKET NUMBER:  AR20050016924


      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:

|     |Mr. Allen Raub                    |     |Chairperson          |
|     |Ms. Linda Barker                  |     |Member               |
|     |Mr. Qawly Sabree                  |     |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 correction of his records to reflect separation
or retirement by reason of physical disability.

2.  The applicant notes that he previously requested that his discharge
under other than honorable conditions be upgraded and that he be medically
discharged.  He states his request was forwarded to the Army Discharge
Review Board which upgraded the characterization of his service to
honorable and he is now seeking his medical discharge.

3.  The applicant states he served honorably for a number of years as
evidenced by various separation documents.  However, he states that his
last separation action was under other than honorable conditions.  He
maintains that his problems were directly related to a medical condition
which was not diagnosed until December 2002, after his separation from
active duty.

4.  The applicant states he suffered from a variety of ailments while on
active duty including recurrent back pain, numbness and tingling, knee
trouble, heat exhaustion and insomnia.  He states he was under a lot of
stress during his final months of military service, that other Soldiers
teased him about his age, and that his shifts were changed frequently.  In
December 2002 he states he was diagnosed with sleep apnea which his
physician indicated was a major risk factor for myocardial infarction and
cardiac disease.  He states he suffered a heart attack in September 2001
and maintains his inability to report for work on time was directly related
to his undiagnosed sleep apnea.

5.  The applicant states he underwent a Medical Evaluation Board but his
separation authority, who had no medical training, approved his separation
for a pattern of misconduct after ruling that his medical problems were not
a direct or substantial contributing cause of his misconduct.

6.  The applicant states that since leaving active duty the Department of
Veterans Affairs have decided that he is entitled to disability benefits
and that many of his medical problems were determined to be connected to
his military service.  He states that an error or injustice occurred in his
case because he was not discharged for medical reasons, and notes that the
physical examination relied on as part of his separation action was
completed in July 2001, prior to his heart attack.  He states that because
of his medical and mental conditions he was unable to defend himself during
his administrative separation action.

7.  The applicant provides copies of various separation documents and
documents from his military personnel file supporting his contention that
he served honorably and successfully, a copy of the Army Discharge Review
Board proceedings, extracts from his service medical records, a copy of a
15 April 2004 statement from his physician noting the applicant has
obstructive sleep apnea and hypopnea syndrome, and a second statement
noting that sleep apnea is a major risk factor for myocardial infarction
and cardiac disease, documentation associated with his referral for a
mental health evaluation in 2001, copies of various physical profiles,
documents associated with his referral to a Medical Evaluation Board (MEB),
documents associated with his Department of Veterans Affairs rating
decisions, and several medical documents executed subsequent to his
separation from active duty.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel provides nothing beyond that already submitted by the applicant and
made no independent statement or argument.

CONSIDERATION OF EVIDENCE:

1.  Records available to the Board indicate the applicant served several
years as a member of the Army National Guard and as a member of the Regular
Army between May 1987 and January 1992 prior to returning to inactive
service as a member of the Army National Guard.  Between January 1992 and
when the applicant was honorably discharged from the Army National Guard in
June 1999 he did accumulate several unexcused absences and his separation
document from the Army National Guard noted the separation report was
forwarded to the applicant’s last known address.

2.  On 30 August 1999 the applicant reenlisted in the Regular Army for a
period of 3 years.

3.  Commencing in the spring of 2001 the applicant began accumulating
counseling statements regarding his inability to report to work on time.
In each instance the applicant acknowledged receipt of the counseling
statement and made no comment.

4.  In July 2001 the applicant was punished under Article 15 of the Uniform
Code of Military Justice for failing to go to his appointed place of duty
on three occasions.  He was punished again in November 2001 for three
additional instances of failing to go to his appointed place of duty and
for dereliction of duty by attempting to give an unauthorized individual an
installation decal to allow her total access to a closed post.

5.  The applicant was referred for a mental health evaluation in September
2001 associated with a pending administrative separation for unsatisfactory
performance.  Although the results of the mental health evaluation were in
available records, documents associated with the unsatisfactory performance
separation action were not.  The mental health evaluation indicated the
applicant had no significant psychiatric pathology, had the capacity to
understand and participate in proceedings and was mentally responsible.

6.  On 25 September 2001 the applicant was transported to the hospital with
chest pains and an EKG showed possible arrhythmia (disorders of the heart's
regular rhythmic beating).  A cardiac stent was inserted in October 2001.
On
6 November 2001 he was given a temporary profile for recurrent angina and
restricted to his quarters for 96 hours.

7.  In November 2001 the applicant’s unit commander notified him he
intended to recommend the applicant be discharged under the provisions of
Army Regulation 635-200, Chapter 14, by reason of misconduct-commission of
a serious offense.  The commander cited the applicant’s numerous instances
of failing to go to his place of duty, dereliction of duty, and writing
worthless checks as the basis for his recommendation.

8.  On 12 December 2001 the applicant was treated for an acute inferior
myocardial infarction.  He was still being treated for recurrent chest pain
in January 2002.  He was issued a permanent profile for his recurrent heart
attack (two) on 20 February 2002.

9.  The applicant, at his request, appeared before a board of officers in
March 2002, with counsel.  During the board proceedings the applicant’s
unit first sergeant noted the applicant received his first counseling
statement in March 2001 for being late for work on numerous occasions, was
given corrective training and then in May 2001 was late four more times.
The first sergeant noted the applicant continued to be late throughout June
and July 2001, was punished under Article 15, and then moved in August 2001
to the Vehicle Registration Office.  However, because of improper
distribution of vehicle decals he was subsequently removed from that
position.  The first sergeant stated that in September 2001, after the
applicant had been placed on convalescent leave following several heart
attacks, he (the unit first sergeant) began receiving phone calls that the
applicant was not paying his bills.  The first sergeant said the applicant
often reported late for work and blamed it on oversleeping.  However, he
indicated the applicant’s roommate said the applicant often stayed up late
talking to his girlfriend and looking at adult sites on the internet.  He
stated the applicant’s performance has been poor.  Other members of the
applicant’s chain of command testified similarly to the information
provided by the applicant’s unit first sergeant.

10.  The board of officers determined that misconduct had occurred and
recommended discharge under other than honorable conditions.

11.  In April 2002, prior to finalization of his administrative separation
board, the applicant was evaluated by a Medical Evaluation Board.  His
chief complaint was identified as chest pains and previous myocardial
infarctions.  His past medical history was significant for smoking a pack
of cigarettes a day for 17 years and heavy drinking until 1988.  He
indicated he quit smoking a month ago after cutting back when he had his
heart attack, resumed drinking in 1991 but quit in September after his
heart attack.  His height was recorded as 68 inches and his weight at 161
pounds.  The applicant noted he had insomnia problems “since around
February of this year” and would only sleep about 2 hours a day before he
gets up to go to work.

12.  The applicant’s unit commander noted there was no decline in the
applicant’s duty performance due to his medical problems since his duty
performance had been poor since his arrival at the detachment.

13.  A June 2002 MEB recommended referral to a PEB as a result of the
applicant’s recurrent angina with previous myocardial infarctions and
status post stent insertions.

14.  Ultimately, however, the applicant’s administrative separation board
proceedings were approved and on 19 July 2002 the separation authority, a
brigadier general, concluded that the applicant’s medical conditions were
not a direct or a substantial cause for the conduct that led to the
recommendation for administrative separation.  He was therefore separated
under the provisions of Army Regulation 635-200, Chapter 14, for misconduct
and issued an under other than honorable conditions discharge.

15.  In October 2005 the Army Discharge Review Board upgraded the
characterization of the applicant’s August 2002 discharge to honorable.
The applicant argued that his serious medical conditions made it difficult
for him to perform his duties.  In so doing the Army Discharge Review Board
concluded that the narrative reason for the applicant’s discharge was fully
supported in the record and voted not to change the reason for the
applicant’s discharge.  However, the board did note that the applicant was
discharged on his originally scheduled separation date and therefore an
honorable discharge was mandated. As such, the Army Discharge Review Board
upgraded the characterization of the applicant’s 2001 under other than
honorable conditions discharge to fully honorable.

16.  Medical documents, provided by the applicant, do confirm that he was
treated for recurrent back pain, dehydration, left carpal tunnel syndrome,
right ulnar neuropathy at the elbow, and heart problems among other things.

17.  His July 2001 report of medical history noted that he reported having
difficulty falling asleep but ultimately the examining physician noted no
disqualifying medical conditions and indicated his physical profile as 1-1-
1-1-1-1.

18.  Statements, authored on 15 April 2004 by the applicant’s civilian
physician, note that he had significant obstructive sleep apnea and stops
breathing 23 times an hour.  The physician noted this is associated with
the development of a component of daytime sleepiness and that sleep apnea
is a major risk factor for myocardial infarction and cardiac disease.  The
applicant underwent a polysomnography (a multi-parametric test used in the
study of sleep) on
14 December 2002, nearly 4 months after his separation from active duty.
At the time of his sleep study he weighed 182 pounds.

19.  As of 15 March 2004 the applicant had been granted a 10 percent
disability rating for tinnitus from the Department of Veterans Affairs
(VA).  While that agency had also determined that several of the
applicant’s other medical conditions were service connected, none of them
were rated as being compensable.  A decision regarding entitlement to
compensation for sleep apnea was deferred.  In citing the basis for the
deferral, the VA noted the applicant’s claim for disability for sleep apnea
was received in February 2003 but his medical evidence during military
service and since discharge was negative for the condition.  It was noted
that the VA examiner noted the applicant had reported the condition on his
VA examination, that it began in December 2002, and that he had undergone a
sleep study during that same month.  He reported to the examiner that he
had experienced significant improvement but still felt he had the condition
for 2 to 3 years prior to the December 2002 diagnosis.  The rating decision
was being deferred pending a VCAA (Veterans Claims Assistance Act) notice.




20.  Army Regulation 635-200, Chapter 14, provides for the separation of
Soldiers for misconduct.  A discharge under other than honorable conditions
is normally appropriate for a Soldier discharged under this chapter.
However, the separation authority may direct a general discharge if such is
merited by the Soldier's overall record.

21.  Army Regulation 635-200, paragraph 1-33b, notes that when the medical
treatment facility commander or attending medical officer determines that a
Solider being processed for administrative separation under Chapter 14 does
not meet the medical fitness standards for retention he will refer the
Soldier to a Medical Evaluation Board.  The separation proceedings will
continue, but final action by the separation authority will not be taken,
pending the results of the MEB.

22.  Army Regulation 635-40, which establishes the policies and procedure
for the separation or retirement of Soldier’s by reason of physical
disability states that a Soldier may not be referred for, or continue,
physical disability processing when action has been started under any
regulatory provision which authorizes a characterization of service of
under other than honorable conditions unless the general court-martial
convening authority determines that the disability is the cause, or a
substantial contributing cause, of the misconduct that might result in a
discharge under other than honorable conditions.

23.  Army Regulation 635-40 states that disability compensation is not an
entitlement acquired by reason of service-incurred illness or injury;
rather, it is provided to Soldiers whose service is interrupted and they
can no longer continue to reasonably perform because of a physical
disability incurred or aggravated in service.  When a Soldier is being
processed for separation for reasons other than physical disability,
continued performance of assigned duty commensurate with his or her rank or
grade until the Soldier is scheduled for separation, is an indication that
the applicant is fit.

24.  Title 38, United States Code, Sections 1110 and 1131, permit the VA to
award compensation for disabilities which were incurred in or aggravated by
active military service.  However, an award of a VA rating does not
establish error or injustice.  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.  Furthermore, unlike the Army, the VA
can evaluate a veteran throughout his or her lifetime, adjusting the
percentage of disability based upon that agency’s examinations and
findings.  The Army rates only conditions determined to be physically
unfitting at the time of discharge, thus compensating the individual for
loss of a career; while the VA may rate any service connected impairment,
including those that are detected after discharge, in order to compensate
the individual for loss of civilian employability.

25.  Information from the National Institutes of Health notes that sleep
apnea can be a serious sleep disorder.  There are two kinds of sleep apnea:
obstructive apnea and central apnea. Obstructive sleep apnea is the most
common type.  Nine out of 10 people with sleep apnea have this type of
apnea.  Central sleep apnea is rare. This type of sleep apnea is related to
the function of the central nervous system.  Doctors estimate that about
18 million Americans have sleep apnea. Men and people who are over 40 years
old are more likely to have sleep apnea, but it can affect anyone at any
age.  Sleep apnea can cause serious problems if it isn't treated. Your risk
of heart disease and stroke is higher if serious sleep apnea goes
untreated.  The following steps help many people who have sleep apnea sleep
better: stop all use of alcohol or sleep medicines. These relax the muscles
in the back of your throat, making it harder for you to breathe, if you
smoke, quit smoking, if you are overweight, lose weight, sleep on your side
instead of on your back.
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s argument that his sleep apnea was the basis for his
failure to be able to report for duty when scheduled is noted.  However, it
is also noted that while sleep apnea may be a risk factor for heart related
problems, smoking, drinking and stress level can also be contributors.  The
fact the applicant suffered a heart attack in September 2001 is not
evidence that he had sleep apnea in the spring of 2001 when he began
accumulating counseling statements for being late for work.  If such were
the case it would have been reasonable to conclude that he would also have
experienced problems getting to work prior to the spring of 2001.

2.  During the applicant’s administrative separation hearing it was noted
that the applicant was spending time talking with his girlfriend and on the
computer when he could have been sleeping, which could also explain his
inability to get up for work.  Additionally, during his MEB evaluation it
was reported that he had only been experiencing sleeping problems since
February 2002.  The applicant has not made a convincing argument that his
sleep apnea, diagnosed in December 2002, was the underlying cause of his
inability to report for work on time which served as one of the basis for
his separation action.


3.  The applicant’s financial problems and attempt to issue a post decal to
an unauthorized person were also cited as the basis for his separation
action.  Neither of those conditions would have been impacted by the
applicant’s claim that his sleep apnea was the root cause of his problems.

4.  There is no evidence, and the applicant has not provided any, that any
of his other medical conditions rendered him unfit at the time of his
administrative separation in August 2002 or that any of those conditions
excused the conduct which resulted in his separation.

5.  It is noted that while the Army Discharge Review Board may have
upgraded the characterization of the applicant’s service, they did not
conclude that the reason for his separation was inaccurate.  His prior
honorable service has also been noted but does not serve as a basis to
change the reason for his separation.

6.  The fact that the applicant may subsequently have received a disability
rating from the Department of Veterans Affairs for his service incurred
disabilities or has determined that several conditions were service
connected but not compensable is not evidence that he should have been
medically retired or separated from active duty in 2002 or that any of
those conditions excused his conduct.  A rating action by the VA does not
necessarily demonstrate any error or injustice by the Army.  The VA,
operating under its own policies and regulations, assigns disability
ratings as it sees fit.  Any rating action by the VA does not compel the
Army to modify its reason or authority for separation.

7.  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 that requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___AR __  ___LB___  ___QS __  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.




                                  _______Allen Raub________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050016924                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060912                                |
|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.                      |                                        |


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