IN THE CASE OF:	  

		BOARD DATE:	  27 January 2009

		DOCKET NUMBER:  AR20080003352 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his discharge be changed to show that he was medically retired.

2.  The applicant states, in effect, that a medical evaluation board found him fit for duty.  He appealed the findings and was separated with 17 years and 2 months of service.  The board should have found him unfit and medically separated him; however, his unit separated him without retiring him or allowing him to get 20 years.

3.  In support of his request, the applicant submitted a copy of a report of investigation - Line of Duty and Misconduct Status, dated 29 June 1990; a partial copy of a DA Form 3947 (Medical Evaluation Board Proceedings), with an approval date of 4 January 1991; an Army National Guard Current Annual Statement, with a preparation date of 14 June 1990; a copy of a National Guard Retirement Points Statement - Supplemental Detailed Report, with a preparation date of 3 April 1990; a copy of Orders 117-92, State of Georgia, Department of Defense, Military Division, Office of the Adjutant General, Atlanta, Georgia, dated 28 July 1994, which discharged the applicant from the Army National Guard and the Reserve of the Army, with an effective date of 1 August 1994; a copy of an NGB (National Guard Bureau) Form 22, Report of Separation and Record of Service, with an effective date of his separation of 1 August 1994; and two pages of e-mail traffic pertinent to the applicant's medical evaluation case.


CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's service record shows he was inducted into the Army of the United States on 22 August 1967.  He served on active duty and was honorably released from active duty on 11 April 1969 in the rank and pay grade, Specialist Four (SP4)/E-4.  On the date of his release from active duty, the applicant had completed 1 year, 8 months, and 20 days of net active service.

3.  The applicant's service records further show that on his release from active duty, the applicant was transferred to the USAR Control Group (Annual Training), United States Army Administration Center, St. Louis, Missouri.  The applicant was then transferred to the USAR Control Group (Standby) and on 1 August 1973, he was discharged from the USAR at the expiration of his term of service.

4.  The evidence shows that the applicant enlisted in the Georgia Army National Guard (GAARNG) on 18 January 1980.  He continued to serve in this component performing scheduled AT (Annual Training), ADT (Active Duty for Training), and FTTD (Full Time Training Duty) through several enlistments and extensions of service.

5.  The evidence shows that on 24 May 1990, while on active duty in Texas, with the GAARNG, the applicant experienced retrosternal chest pain with no radiation, positive nausea, and diaphoresis.  He was found to have an EKG (electrocardiogram) consistent with acute inferior myocardial infarction.  He underwent a cardiac catheterization on 29 May with an 80 percent occlusion.

6.  The applicant was diagnosed with atherosclerotic heart disease with TPA (Tissue Plasminogen Activator) administration manifested by status post inferior myocardial infarction and gout.  The Narrative Summary (Clinical Resume), 

Standard Form (SF) 502, that was prepared on 6 June 1990 indicated that he would undergo a medical evaluation board.

7.  On 16 August 1990, the applicant went before a medical evaluation board.  After consideration of clinical records, laboratory findings, and physical examination, the board found that the patient had the following conditions:  organic heart disease etiology atherosclerosis, anatomy significant stenosis of right coronary artery and left anterior descending coronary artery and gout.  The board recommended that the applicant be returned to duty with a 120 day trial of duty.  The applicant indicated on the DA Form 3947 that was prepared by the medical evaluation board that he did not desire to continue on active duty under the provisions of Army Regulation 635-40.  The board results were approved on 16 August 1990.

8.  On 29 August 1990, Orders 173-15 were prepared by the State of Georgia, Department of Defense, Military Division, Office of the Adjutant General.  The applicant was ordered to report to Fort Gordon, Georgia, to undergo medical evaluation/cardiology on 3 October 1990.

9.  On an unspecified date after 3 October 1990, an Optional Form (OF) 275 (Narrative Summary) was prepared at the Dwight David Eisenhower Medical Center.  The narrative summary was based on the physical evaluation that was conducted of the applicant on 3 October 1990.  He was diagnosed with a two-vessel coronary artery disease, status post-inferior, with myocardial infarction in May 1990, with revascularization with coronary artery bypass grafting, currently asymptomatic without evidence of reversible ischemia on Thallium treadmill stress testing.  A comment was made on the OF 275 that because he was asymptomatic after coronary artery bypass grafting and without evidence of reversible ischemia on Thallium treadmill stress testing with good exercise tolerance, he was fit for duty.

10.  On 10 December 1990, the applicant was evaluated by a medical evaluation board at Fort Gordon, Georgia.  After consideration of clinical records, laboratory findings, and physical examination, the board found that the patient had the following conditions:  two-vessel coronary artery disease, status post-inferior, with myocardial infarction in May 1990, with revascularization with coronary artery bypass grafting, currently asymptomatic without evidence of reversible ischemia on Thallium treadmill stress testing.  The board recommended that the applicant be returned to duty.  On the reverse of the DA Form 3947 that was prepared to document the result of the evaluation, the applicant indicated 
he desired to continue on active duty under the provision of Army Regulation 
635-40.  The board indicated that continuance on active duty under the provisions of Army Regulation 35-40 was not medically contraindicated.  The results of the board were approved on 12 December 1990.

11.  On 29 December 1990, after the findings and recommendation of the board had been approved, the applicant indicated that he did not agree with the board's findings and recommendation.  He appealed the findings and recommendation.

12.  On 4 January 1991, the approving authority indicated that his appeal had been considered and the original findings and recommendation of the board were confirmed.

13.  On 9 January 1991, the medical evaluation board's proceedings were sent to the applicant's unit of assignment, Detachment 1, 82nd Maintenance Company under cover of a Memorandum, Subject:  Medical Evaluation Board Proceedings, dated 9 January 1991.  The memorandum indicates the applicant was returned to duty and since no profile had been given, there were no assignment limitations.

14.  On 7 October 1992, the 82nd Maintenance Company, GAARNG, Toccoa, Georgia, requested that the applicant be scheduled for a medical evaluation to determine his eligibility for retention in the GAARNG.  A handwritten annotation was made by a medical corps officer of the GAARNG at the bottom of the memorandum that stated "3-21a. (4)  Under this paragraph the clinical data indicated that this Soldier is fit for duty."

15.  On 29 January 1993, the State of Georgia, Department of Defense, Military Division, Office of the Adjutant General, forwarded a memorandum to the applicant's unit commander through the Commander, Headquarters, Troop Command, Decatur, Georgia, advising them that documentation pertaining to the applicant had been reviewed by the State Surgeon's Office and a "fit for retention determination UP (under the provisions of) paragraph 3-21a (4), Army Regulation 40-501" had been made.

16.  On 3 February 1993, the 82nd Maintenance Company, GAARNG, requested that the applicant be scheduled for a medical evaluation to determine his fitness for duty and retention in the GAARNG.  In the memorandum was an indication that the individual had been diagnosed with cardiac disease while attending annual training and he had not attended a drill since August 1991.




17.  On 18 February 1993, the memorandum was responded to.  The unit was provided instructions to order the individual to duty and if at the end of 120 days the applicant could not perform his duties, a new request for medical evaluation could be generated by the unit.

18.  On 5 February 1993, the applicant's attending physician prepared a medical note that stated the applicant was under his care for hypertension and coronary artery disease and was unable to participate in any physical drills because of this cardiac condition.

19.  On 18 February 1993, the S-1, Troop Command, notified the applicant's unit commander that the unit needed to order the individual to duty and at the end of a 120 day period if the applicant could not perform his duties, a new request for medical evaluation could be generated.

20.  On 15 March 1993, notification was sent by certified mail, domestic return receipt requested, to the applicant that the State Surgeon General's office had ruled he was fit for duty in accordance with paragraph 3021a(4) [sic 3-21a(4)], Army Regulation 40-501 and he was to bring substantiating documentation to the unit on 5 April 1993 why he should not attend drill and annual training, or his request to be discharged.

21.  On 8 April 1993, the applicant responded to the notice and in the response, he respectfully requested that he be medically boarded prior to any return to any type of active participation with the National Guard.  He indicated that he was unable to perform any type of duty related to his National Guard contract.

22.  On 21 July 1993, a Health Systems Specialist, GAARNG, requested that the President, State Medical Review Board, review the applicant's documentation to determine his fitness to perform the duties of his MOS, grade, and duty position; to determine if the applicant should be referred to the military personnel officer for possible reclassification; and to determine if the Soldier met the retention standards under Chapter 3, Army Regulation 40-501.

23.  On [it is believed 2 August 1993] a memorandum [with a suspense date of 16 September 1993] was sent to the applicant's unit from the Office of the Adjutant General, Atlanta, Georgia.  The unit was advised that a determination had been made that the applicant had been found unfit for retention under the provisions of Army Regulation 40-501, chapter 3.



24.  The evidence of record shows that the applicant's unit commander initiated action to separate him from the GAARNG on 3 September 1993.  All the documents related to this action are not available in the applicant's service personnel record; however, the below listed documents are:

    a.  a Memorandum, Subject:  Separation Under Army Regulation 135-178, dated 3 September 1993, in which the applicant's unit commander notified him he was initiating action to separate him from the GAARNG for being medically unfit for retention under the provisions of Army Regulation 135-178, chapter 12.  He was further notified that if he were separated, his characterization of service may be characterized as honorable.  The applicant acknowledged the notification on an unspecified date.

    b.  a Memorandum, Subject:  Separation Under Army Regulation 135-178, dated 28 September 1993, in which the applicant consulted with counsel and waived consideration of his case by a board of officers, waived a personal appearance before a board of officers, elected not to submit statement in his own behalf, and waived representation by military counsel.

25.  There are no documents, and the applicant provided none, to indicate the events that occurred between 28 September 1993 and 28 July 1994, the date Orders 117-92 were published by the Office of the Adjutant General, GAARNG discharging him from the GAARNG and as a Reserve of the Army effective         1 August 1994.

26.  The applicant was honorably discharged under the provisions of National Guard Regulation 600-200, paragraph 8-26y, on 1 August 1994, for being medically unfit for retention under the provisions of Army Regulation 40-501, chapter 3.  The applicant was discharged in the rank and pay grade, Sergeant (SGT)/E-5.  On the date of his discharge, the applicant had completed 14 years, 6 months, and 14 days net service during the period of his enlistment and 25 years, 5 months, and 24 days total service for pay and 17 years of qualifying service for a non-regular retirement.

27.  Army Regulation 135-178 (Separation of Enlisted Personnel), in effect at the time, established policies, standards, and procedures governing the administrative separation of enlisted Soldiers from the Army National Guard of the United States and the United States Army Reserve.  Paragraph 12-8 stated that unless otherwise specified, Soldiers separated under this chapter would be awarded a character of service of honorable or under honorable conditions unless an uncharacterized description of service was required.  Paragraph 12–1 stated that separation would 
be accomplished by separation authorities under the provisions of paragraph 1-25 

when it had been determined that an enlisted Soldier was no longer qualified for retention by reason of medical unfitness (Army Regulation 40–501 or National Guard Regulation 40-3 or 40–501) unless the Soldier requested and was granted a waiver, as applicable, or was eligible for transfer to the Retired Reserve under the provisions of Army Regulation 140–10.

28.  National Guard Regulation 600-200, paragraph 8-26y, stated that if a commander suspects a Soldier may not be medically qualified for retention, he or she will direct a Soldier to present himself for a medical exam in accordance with National Guard Regulation 40-501.  A complete medical examination would be accomplished and the results forwarded to the unit commander for disposition.  If retention was not recommended a request for discharge would be submitted to the State Adjutant General.  When medical conditions were incurred in the line of duty, the procedures of National Guard Regulation 40-3 would apply.  Discharge action would not be effected pending final disposition.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that on 24 May 1990, while on active duty in Texas, with the GAARNG, the applicant experienced what was diagnosed as an acute inferior myocardial infarction.  He underwent a cardiac catheterization on 29 May 1990.

2.  The applicant went before a medical evaluation board on 16 August 1990.  After consideration of clinical records, laboratory findings, and physical examination, the board recommended that the applicant be returned to duty with a 120 day trial of duty.  The applicant indicated on the DA Form 3947 that was prepared by the medical evaluation board that he did not desire to continue on active duty under the provisions of Army Regulation 635-40.  The board results were approved on 16 August 1990.

3.  The applicant was ordered to report for and he underwent a medical evaluation on 3 October 1990.  Based on this medical evaluation, because he was asymptomatic after coronary artery bypass grafting and without evidence of reversible ischemia on Thallium treadmill stress testing with good exercise tolerance, he was determined to be fit for duty.

4.  On 10 December 1990, the applicant was evaluated by a medical evaluation board.  After consideration of clinical records, laboratory findings, and physical examination, the board recommended that the applicant be returned to duty.  On the reverse of the DA Form 3947 that was prepared to document the result of the 
evaluation, the applicant indicated he desired to continue on active duty under 
the provision of Army Regulation 635-40.  The board indicated that continuance on active duty under the provisions of Army Regulation 635-40 was not medically contraindicated.  The results of the board were approved on 12 December 1990.

5.  The applicant appealed the findings and the board's recommendation.  On 4 January 1991, the approving authority denied his appeal and confirmed the findings and recommendation of the board.  The applicant's unit commander was notified he was being returned to duty and since no profile had been given, there were no assignment limitations.

6.  On 7 October 1992, the applicant's unit requested that he be scheduled for a medical evaluation to determine his eligibility for retention in the GAARNG.  An annotation was made by a medical corps officer of the GAARNG at the bottom of the memorandum that under paragraph 3-21a. (4) "the clinical data indicated that this Soldier is fit for duty."

7.  On 29 January 1993, the State of Georgia, Department of Defense, Military Division, Office of the Adjutant General, advised the applicant's unit commander through the Commander, Headquarters, Troop Command, Decatur, Georgia, that documentation pertaining to the applicant had been reviewed by the State Surgeon's Office and a "fit for retention determination under the provisions of paragraph 3-21a (4), Army Regulation 40-501" had been made.

8.  On 3 February 1993, the applicant's unit requested that he be scheduled for a medical evaluation to determine his fitness for duty and retention in the GAARNG.  In the memorandum was an indication that the individual had been diagnosed with cardiac disease while attending annual training and he had not attended a drill since August 1991.

9.  On 15 March 1993, notification was sent to the applicant by certified mail, domestic return receipt requested, that the State Surgeon General's office had ruled he was fit for duty in accordance with applicable regulations and he was to bring substantiating documentation to the unit on 5 April 1993 why he should not attend drill and annual training, or his request to be discharged.

10.  On 8 April 1993, the applicant requested that he be medically boarded prior to any return to any type of active participation with the National Guard.  He indicated that he was unable to perform any type of duty related to his National Guard contract.

11.  On 21 July 1993, the applicant's documentation was reviewed by the State Medical Review Board to determine his fitness to perform the duties of his MOS, 
grade, and duty position; to determine of the applicant should be referred to the military personnel officer for possible reclassification; and to determine if the Soldier met the retention standards under Chapter 3, Army Regulation 40-501.

12.  The unit was advised that a determination had been made that the applicant had been found unfit for retention under the provisions of Army Regulation 40-501, chapter 3.

13.  The available evidence shows that the applicant's unit commander initiated action to separate him from the GAARNG on 3 September 1993.  All documents related to the applicant's separation action are not available in his service personnel record and he provided none; therefore, administrative regularity is being assumed in the discharge process in view of the fact he was discharged from the GAARNG and from the Reserve of the Army.

14.  In view of the foregoing, there is no basis for granting the applicant's request to change his discharge to show that he was medically retired.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ____x___  ___x____  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.



      ___________x___________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont)                                         AR20080003352



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ABCMR Record of Proceedings (cont)                                         AR20080003352



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