RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        26 July 2007
      DOCKET NUMBER:  AR20060011255


      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.

|     |Ms. Catherine C. Mitrano          |     |Director             |
|     |Mr. Luis Almodova                 |     |Senior Analyst       |

      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. Jerome L. Pionk               |     |Member               |
|     |Mr. John G. Heck                  |     |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, that the authority and reason for
discharge on his NGB (National Guard Bureau) Form 22 (Report of Separation
and Record of Service) be changed to show he was medically discharged as
opposed to discharged as medically unfit for retention under standards of
Army Regulation (AR) 40-501, chapter 3.

2.  The applicant states, in effect, he was willing to serve his country in
a non-combat situation but was told he had to serve in a combat unit.  He
knew that everyone in the National Guard went to combat.  It was his belief
that he should have been reclassified and given another position in the
Delaware Army National Guard (DEARNG).  He was not given a chance to take
another physical examination to see if he was fit to serve in any another
capacity.  First, he did not know his rights.  He went before several
people and they said he did not have a case.  By the applicant's own
admission, he had a heart attack from 4 to 6 days after he had participated
in annual training.

3.  In an addendum he submitted on 7 June 2007, the applicant added, in
effect, he was at annual training with the 116th Mobile Army Surgical
Hospital, Fort Meade, Maryland from 11 through 26 June 1988.  While there
he began to experience the symptoms which would later lead to a heart
attack four days later. He thought he was suffering from indigestion and
heart burn.  He was told by his attending civilian doctor of Beebe Medical
Center, Lewes, Delaware, that his symptoms were predecessors to the heart
attack.

4.  Upon recovery, the applicant was given a clean bill of health but,
unfortunately, within 2 months of his heart attack, the DEARNG had begun
the process of separating him.  He was not given an opportunity to appeal
the decision nor was he given the option to reclassify into another
specialty in order to continue his service in the military.  He states he
expressed on several occasions that it was his desire to continue in the
service in any specialty.

5.  The applicant provides a copy of his NGB Form 22, with an effective
date of separation of 1 October 1990; a copy of his DD Form 214, Armed
Forces of the United States Report of Transfer or Discharge; a copy of his
DD Form 4/1 and 4/2, Enlistment/Reenlistment Document, Armed Forces of the
United States, dated 21 March 1987; twenty-two documents related to the
diagnosis and treatment of his heart attack; a copy of a DA Form 2166-6,
Enlisted Evaluation
Report, with a thru date of November 1988; a copy of a DA Form 4836, Oath
of

Extension of Enlistment or Reenlistment; five documents related to his
retention or separation from service in the National Guard; and a copy of
Orders 198-36, which honorably discharged him from the Army National Guard
on 1 October 1990.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 1 October 1990, the date of his discharge.  The
application submitted in this case is dated 2 August 2006.

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 limitations 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.  The applicant's military records show he was inducted on 3 February
1966.  On 24 January 1968, he was honorably released from active duty in
the rank and pay grade of Specialist Four, E-4, and was transferred to
the USAR Control Group (Annual Training) to fulfill his military
obligation under the Universal Military Training and Service Act.  On the
date of his release from active duty, the applicant held the military
occupational specialty 91B, Medical Specialist.  On the date of his
release from active duty, the applicant had completed 1 year, 11 months,
and 22 days active Federal service with no time lost.

4.  On 21 March 1987, the applicant enlisted in the DEARNG for one year
under the "Try One Program."

5.  On 10 January 1988, the applicant voluntarily extended his enlistment
in the DEARNG for 3 years.  The applicant's new expiration of term of
service date was established as 20 March 1991.

6.  On 1 July 1988, the applicant underwent non-invasive cardiac
examination at Beebe Hospital of Sussex County to rule our pericardial
effusion.  After this cardiac examination, the attending physician
diagnosed the applicant to have akinetic septum and apex, no intracavity
thrombus, and no significant pericardial effusion.

7.  On 9 August 1988, the applicant was admitted to Peninsula General
Hospital, Salisbury, Maryland, and underwent a left heart catheterization
coronary cine angiography.  In the "History" shown in the discharge
summary that was prepared post-catheterization, the attending physician
stated the applicant had experienced prolonged chest discomfort and was
admitted to the hospital.  In addition, the applicant was diagnosed with
multiple risk factors for coronary artery disease, including benign
hypertensive and Type II Diabetes.

8.  On 17 August 1988, the applicant's coronary angiography was examined.
This examination showed little atherosclerosis and no occlusion.  The
examining physician noted that the applicant's EKG (electrocardiogram) was
still as abnormal as it was a couple weeks earlier, in terms of re-
polarization abnormality, so that a standard test would not be adequate.

9.  On 22 August 1988, the applicant had a chest X-Ray administered.
Thallium was injected at the point of maximum cardiovascular stress.  On
examination, it was found that there was fixed ischemia involving the
anterior wall of the left ventricular myocardium and some right ventricular
uptake, suggesting cardiac dysfunction.

10.  On 28 September 1988, the applicant's attending physician at
Seashore Cardiology prepared a letter to the Department of Military
Affairs, State of Delaware. In this letter, the physician stated, among
other things, "I think it is reasonable to assume that he should be
physically prepared for combat duties in order to participate in National
Guard activities at any level.  Although he is capable of his ordinary
work with [his civilian firm], I do not think medically that he should
continue to be an active member of the National Guard."

11.  The applicant was provided an enlisted evaluation report with a thru
date of November 1988.  The rater stated the applicant had medical problems
which had affected his participation.  The indorser stated the applicant
had missed a great deal of training during the evaluation period due to
health reasons.

12.  All the applicant's military service medical records are not available
for the Board's review.

13.  On 9 September 1989, the applicant underwent a retention physical
examination at Detachment 1, 116th Mobile Army Surgical Hospital.
Following this examination, the examining physician opined the applicant
was not qualified for retention.  The applicant was given a P-4, U-1, L-1,
H-1, E-2, and S-1 physical profile.

14.  On 4 October 1989, the applicant's retention physical examination was
reviewed by the State Surgeon.  The examination was found to be incomplete.
 Records were needed from his cardiologist, and it was determined a medical
board was needed to process a waiver.

15.  On 12 October 1989, the required documents were received and
transmitted to the Commander, 116th Mobile Army Surgical Hospital, for
review and a determination as to his retention.

16.  On 29 March 1990, after having reviewed the retention physical
examination, the cardiologist letter, and other supporting documents, the
State Surgeon came to the conclusion that the applicant was not qualified
for retention in the DEARNG.

17.  On 18 October 1990, DNG Form 4 (title unavailable), dated 3 May 1990,
was forwarded to the Headquarters, DEARNG for publication of separation
orders.

18.  On 19 October 1990, Orders 198-36 were published by the Department
of Military Affairs, Headquarters, Delaware National Guard discharging
the applicant from the Army National Guard and as a Reserve of the Army
with an effective date of 1 October 1990, under the provisions of NGR
(National Guard Regulation)
600-200, paragraph 8-26y, as medically unfit for retention standards of
chapter 3, AR 40-501.

19.  There is no evidence and the applicant provided none to show that he
requested a waiver, under the provisions of AR 135-178, for retention in
the Reserve and in the DEARNG after he was determined to be medically
unfit to meet the standards of AR 40-501, chapter 3.

20.  NGR 600-200 governs procedures for enlisted personnel of the Army
National Guard (ARNG).  Paragraph 8-26 covers reasons, applicability,
codes, and board requirements for administrative discharges from the
Reserve of the Army and/or the State ARNG.  Paragraph 8-26y provides for
the separation of personnel who are found medically unfit for retention
under the provisions of AR 40-501, chapter 3.  It also states to refer to
AR 135-178, chapter 12.

21.  AR 135-178, in effect at the time, established the policies,
standard, and procedures governing the administrative separation of
enlisted Soldiers from the Reserve Components.  Chapter 12 pertains to
separation for other reasons.  Paragraph 12 provides guidance for the
separation of Soldiers who are medically
unfit for retention.  It states that separation will be accomplished by
separation authorities when it has been determined that an enlisted
Soldier is no longer qualified for retention by reason of medical
unfitness unless the Soldier requests and is granted a waiver or eligible
for transfer to the Retired Reserve.

22.  AR 40-501, chapter 3, provides standards for medical retention.
Basically, members with conditions as severe as listed in this chapter are
considered medically unfit for retention on active duty.

23.  AR 40-501, chapter 7, physical profiling, provides that the basic
purpose of the physical profile serial system is to provide an index to
the overall functional capacity of an individual and is used to assist
the unit commander and personnel officer in their determination of what
duty assignments the individual is capable of performing, and if
reclassification action is warranted.  Four numerical designations
(ranging from a numerical rating of 1 to 4) are used to reflect different
levels of functional capacity in six factors (PULHES):  P-physical
capacity or stamina,
U-upper extremities, L-lower extremities, H-hearing and ears, E-eyes, and

S-psychiatric.  Numerical designator 1 under all factors indicates that
an individual is considered to possess a high level of medical fitness
and, consequently, is medically fit for any military assignment.
Numerical designators 2 and 3 indicate that an individual has a medical
condition or physical defect which requires certain restrictions in
assignment within which the individual is physically capable of
performing military duty.  The individual should receive assignments
commensurate with his or her functional capacity.  Numerical designator 4
indicates that an individual has one or more medical conditions or
physical defects of such severity that performance of military duty must
be drastically limited.  The numerical designator 4 does not necessarily
mean that the individual is unfit because of physical disability as
defined in AR 635-40.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant experienced a heart
attack; however, there is no evidence he experienced this heart attack
while performing active duty, active duty for training, or while
participating in unit drill(s).

2.  The evidence shows the applicant underwent a physical examination for
the purpose of determining his qualification for retention in the Army
Reserve and in the Army National Guard.
3.  The results of this retention physical examination were evaluated by
the State Surgeon and he determined the applicant did not meet retention
standards of AR 40-501, chapter 3.

4.  The applicant was recommended for discharge as a result of being
medically unfit for retention under the standards of AR 40-501, chapter 3,
and under the provisions of NGR 600-200, chapter 8, paragraph 8-26y.

5.  There is no evidence and the applicant provided none to show that he
requested a waiver, under the provisions of AR 135-178, for retention in
the Reserve and in the DEARNG after he was determined to be medically
unfit to meet the standards of AR 40-501, chapter 3.

6.  The applicant was honorably discharged on 31 August 1997 under the
provisions of NGR 600-200, paragraph 8-26y, for being medically unfit for
retention standards of AR 40-501, chapter 3.  The authority and reason for
the applicant's separation are correct and are in accordance with
applicable regulation. Therefore, he is not entitled to correction of his
records to show that he was "medically discharged" as opposed to being
separated as "medically unfit for retention standards of Chapter 3, AR 40-
501."

7.  In order to justify correction of a military record, the applicant must
show, to the satisfaction of the Board, or it must otherwise appear, that
the record is in error or unjust.  The applicant has failed to submit
evidence that would satisfy this requirement.

8.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 1 October 1990; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 30 September 1993.  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

___JP___  __LDS___  ___JH___  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.




                                  ___Linda D. Simmons_____
                                            CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20060011255                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070726                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.0000                                |
|2.                      |110.0200                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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