BOARD DATE:	  18 August 2009

		DOCKET NUMBER:  AR20080015688 


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 that his retirement from the Ohio Army National Guard (OHARNG) be changed to a medical retirement or a physical disability separation with entitlement to benefits.

2.  The applicant states that the OHARNG failed to follow military regulations, specifically Army Regulation 135-38 [sic], Army Regulation 135-381 (Incapacitation of Reserve Component Soldiers), and Army Regulation 40-501 (Standards of Medical Fitness).  He states that the OHARNG was under continuing duty to notify him even after his retirement.  By failing to notify him, the OHARNG caused him not to seek appropriate and timely treatment that would have made his treatment and heart surgery less severe.

3.  The applicant outlines his personal opinion regarding the injustice in his record.  He states the OHARNG required him to undergo a periodic medical examination on 6 June 1999 in accordance with Army Regulation 40-501, paragraph 10-3.  He states the OHARNG prepared a memorandum on or about 9 August 1999 to inform him that he had failed Phase I of the Cardiovascular Screening Program (CVSP), but he alleges that he did not receive the memorandum until he requested copies of his OHARNG medical records in November 2003.  He cites Army Regulation 135-381, paragraph 2-9, which indicates that the CVSP is required as part of every periodic medical examination taken after age 39.  He alleges that the OHARNG negligently failed to provide notice that he failed the CVSP.  The 9 August 1999 memorandum ordered him to complete Phase II of the CVSP within 90 days.  During that time, he was not to participate in the Army Physical Fitness Test (APFT) or to be placed on active duty orders.

4.  The applicant cites paragraph 1-1 of Army Regulation 135-381 which prescribes the policies and implements statutory authorities regarding incapacitation pay and allowance and reviews requirements on these entitlements for Reserve Component Soldiers.  He describes the responsibilities and duty status as listed in Army Regulation 135-381, paragraph 1-4 and paragraph 2-1.  He alleges that the technicians, physicians, and commander failed to adhere to these regulations.  As a result, he was denied preventive health care that would have lessened the severity of his heart disease, heart attacks, and aneurysm.  He remained in the OHARNG with no knowledge of failure of the CVSP.  He also cites paragraphs in Army Regulation 40-501 regarding the health risk appraisal assessment.  The applicant alleges that he suffered at least two or possibly three heart attacks because of the failure by the OHARNG to follow Army regulations.  This ultimately culminated in surgery to remove one-third of his left ventricle.  As a result of the OHARNG's negligence and/or omissions, he did not receive timely professional diagnosis, attention, and treatment for his developing cardiovascular disease.

5.  The applicant provides the documents as listed in the Table of Contents and a brief overview of each document in support of his application.

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.  After having prior service in the U.S. Navy, U.S. Navy Reserve, Regular Army, and U.S. Army Reserve, the applicant enlisted in the OHARNG on 1 July 1992.  At the time of his enlistment in the OHARNG, the applicant was 40 years old.  He was promoted to staff sergeant, E-6, on 18 September 1995.

3.  On 15 January 1999, the applicant was issued a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter).

4.  On 6 June 1999, the applicant underwent a periodic medical examination.  The results of Phase I of the CVSP and copies of his Standard Form 88 (Report of Medical Examination), Standard Form 93 (Report of Medical History), and DA Form 5675 (Health Risk Appraisal) are not available.

5.  On 6 July 1999, the applicant submitted a request to be reassigned to the Inactive National Guard for 1 year.  His request was approved on 13 July 1999.

6.  An OHARNG memorandum, dated 9 August 1999, informed the applicant that he was not cleared for Phase I of the over-40 CVSP.  The memorandum was submitted through the Commander of Headquarters and Headquarters Troop, 2nd Squadron, 107th Cavalry Regiment.  The cardiovascular screening of Phase I identified a need for further medical work-up.  He was advised that he must undergo Phase II of the CVSP with a suspense date of 9 November 1999 (90 days).  The memorandum indicated that the applicant had been given a temporary profile for 90 days to complete Phase II of the CVSP and to defer the APFT.  During this time he could attend inactive duty training, but he could not be placed on any type of active duty orders until he was cleared.  A copy of this memorandum was forwarded to the 216th Engineer Battalion, the 416th Engineer Group, and the 16th Engineer Brigade.

7.  On an unknown date, the applicant was given a temporary physical profile.  The DA Form 3349 (Physical Profile) is not available.

8.  On 15 January 2000, the applicant was notified that a Qualitative Retention Board (QRB) would convene on 8 May 2000.  He was advised that his Personnel Qualification Record, documents from his military personnel records jacket, and his QRB checklist would be forwarded to his unit for review.

9.  On 15 May 2000, the applicant was informed that the QRB had recommended him for continued retention in the OHARNG.

10.  The applicant provided two Noncommissioned Officer (NCO) Evaluation Reports for the periods ending October 1999 and October 2000 which indicate he did not take the APFT during these rating periods.

11.  On 5 July 2000, he was given a treadmill test by a civilian physician at the Cardiology Associates of Cincinnati, OH.  The treadmill report indicated the applicant was able to exercise on a standard Bruce protocol for a total of 13 minutes and 1 second.  His heart rate went from 74 to a maximum of 156 beats per minute corresponding to 90 degrees maximum predicted heart rate.  In addition, the treadmill report indicated the applicant had denied any chest pain or shortness of breath and he was electrocardiographically negative for ischemia [a condition in which the blood flow (and thus oxygen) is restricted to a part of the body] at a heart rate of 156 beats per minute.

12.  The applicant's DA Form 4970-E (Medical Screening Summary - CVSP), dated 9 September 2000, shows the following risk factors were not identified on his DA Form 4970-E:  (1) smoking history and (2) blood pressure, electrocardiogram, serum cholesterol, high-density lipoprotein, fasting blood sugar, and cholesterol ratio.  Item 10 (Cardiovascular Test-Treadmill) included the handwritten entry, "passed."  The results on the DA Form 4970-E indicated that the cardiovascular test in item 10 revealed significant findings.  The DA Form 4970-E also indicated that additional medical assessment and treatment rested with the physician and all evaluative tests and recommendations would be placed in the applicant's outpatient medical record.

13.  In an undated affidavit from Dr. S____, he identified himself as a lieutenant colonel in the OHARNG at the time of the applicant's cardiovascular screening.  He stated he reviewed the applicant's Phase I and Phase II cardiovascular screenings in September 2000.  During this time, he had no role in administering Phase II screenings.  His only role was reviewing those results.  To the best of his knowledge, he never reviewed the applicant's Phase II screening.

14.  In an undated affidavit from Master Sergeant H____, he described his duties involving managing the over-40 CVSP.  He pointed out that Phase I of the CVSP consisted of Standard Form 88 (Report of Medical Examination), Standard Form 93 (Report of Medical History), and DA Form 4970-E.  He explained that once the reviewing doctor found that a Soldier had failed Phase I of this process, a letter was sent to the Soldier and his unit of assignment explaining that the Soldier had failed Phase I and was required to undergo Phase II (treadmill testing) at government expense at a Federally-contracted civilian medical facility.  He further explained that if the Soldier failed Phase II testing, another letter was sent to the Soldier and his unit explaining that the Soldier failed Phase II and that he would need to contact his personal/family doctor to complete Phase III consisting of nuclear cardiology at his own expense.

15.  In an undated affidavit from Staff Sergeant U____, he identified himself as the full-time Health Service Technician for the OHARNG during the period the applicant received Phase I of the CVSP.  He described his duties as the Health Service Technician in regard to the CVSP.  He indicated that he would put a cover sheet on the physicals needing Phase II screening for Dr. S____'s review.  He would flag Soldiers who failed preventing any orders to active duty from being published.  The Soldier then had 180 days to respond or would be processed for discharge.  Staff Sergeant U____ stated he had no recollection of any response from the applicant nor any reason to think he was not apprised of the results of his CVSP.

16.  A Report of Operation, dated 16 October 2003, shows the applicant underwent open heart surgery for coronary artery disease with left ventricular aneurysm.

17.  The applicant provided a memorandum for record, dated 27 July 2006, from an OHARNG operations officer.  The operations officer indicated that he was the Commander, Headquarters and Headquarters Troop, 2nd Squadron, 107th Cavalry Regiment from June 1998 to January 2000 at which time the applicant was assigned to the unit.  To the best of his recollection, he did not receive the results of the applicant's CVSP while he was in command or receive a memorandum, dated 9 August 1999, notifying the applicant of the failure.

18.  On 15 April 2009, the applicant was honorably discharged from the Army National Guard and was transferred to the U.S. Army Reserve Control Group (Retired) under the provisions of National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 8-27u.  At the time of his discharge, he had completed 27 years, 3 months, and 7 days of total service for pay.

19.  In the processing of this case, a staff advisory opinion was obtained from the National Guard Bureau.  In consultation with the Surgeons Office, the National Guard Bureau recommended disapproval of the applicant's request to change his retirement.  The advisory opinion stated the applicant underwent a periodic medical examination on 6 June 1999 and the results revealed he failed Phase I of the CVSP based on established risk factors.  A notice of failure was contained in a memorandum, dated 9 August 1999, through the unit commander.  The failure of Phase I triggered a requirement for a more extensive Phase II of the CVSP.  The applicant completed Phase II of the CVSP on 7 July 2000 and the results indicated he passed the required tests clearing him for continued service.  The advisory opinion referenced Army Regulation 40-501, paragraph 1-5a(1), which states, "medical examiners will report as 'medically acceptable' all individuals who meet the medical fitness standards established for the particular purpose of which examined."

20.  The advisory opinion described the CVSP conducted by the Army National Guard.  It was stated that the process was used to determine if the Soldier was medically capable of performing duties without aggravation of existing physical defects or medical conditions.  The advisory opinion stated that no doctor/patient relationship is established and ongoing care is not provided to the Soldier.  The advisory opinion also referenced Army Regulation 40-501, chapter 2, paragraph 2a, which states, "The purpose of the standards contained in this chapter is to ensure that individuals medically qualified are – (1)  free of contagious diseases…; (2) free of medical conditions or defects…; (3) medically capable of satisfactorily completing required training; (4) medically adaptable to the military environment…; and (5) medically capable of performing duties without aggravation of existing physical defects or medical conditions."

21.  A copy of the advisory opinion was forwarded to the applicant for possible rebuttal.  The applicant agreed with the fact that he received a periodic medical examination on 6 June 1999.  However, he argued that the OHARNG did not notify him of his failure [of Phase I of the CVSP] so he could seek appropriate care from his family physician.  He cited specific arguments regarding the OHARNG's failure to notify him.  He also referenced the memorandum from Captain P____ and the affidavit from Staff Sergeant U____.  On 7 July 2000, his training NCO told him that he had to take a stress test for his over-40 physical before leaving for annual training, which was the next day.  He alleged that this was in direct disregard of Army regulations.  He stated that the 7 July 2000 date is 180 days after he failed Phase I of the CVSP.  He also alleged that if the OHARNG had followed all Army regulations, he would have been sent to the medical evaluation board for discharge in December 1999 when he returned from his unit.  On his stress test, it had a handwritten entry "passed" and indicated he had "significant findings."  He provided information regarding misread stress tests and described several examples.

22.  The applicant iterated the purpose of the CVSP which is conducted by the Army National Guard as a process to determine if a Soldier meets medical fitness standards.  He emphasized that aggravation of existing defects or medical conditions was the perfect example of why it was so important to notify the Soldier of his failure of the CVSP.  The applicant alleged that these tests provide the Soldier with information that could prevent heart attacks and heart disease, which is the leading cause of death for men in the United States.  He referenced information from the American Medical Society.  While the Army National Guard does not provide a doctor/patient relationship, it does have a moral and legal obligation to provide pertinent medical information that allows the Soldier to proceed to his or her family physician for further evaluation.  This medical information is pertinent for the Soldier to relay the information to his physician so together they can decide the best course of action to prevent further damage to the Soldier's health and heart.

23.  Army Regulation 40-501, paragraph 8-26, states that the CVSP is required as part of the periodic health assessment for all Active Army, Army National Guard, Army National Guard of the United States, and U.S. Army Reserve (Selective Reserve) Soldiers age 40 and older.  Cardiovascular screening will be done every 5 years unless otherwise clinically indicated.  The CVSP begins with a Level 1 [levels are also referred to as phases] evaluation.  The Level 1 cardiovascular evaluation is conducted to determine the cardiovascular risk based on the presence of independent risk factors indentified.  The Level 1 evaluation will consist of (1) medical history to include family and smoking history; (2) medical records review; (3) blood pressure; (4) fasting lipid profile, including total cholesterol, low-density lipoprotein, high-density lipoprotein, and triglycerides; (5) electrocardiogram; (6) fasting blood glucose; (7) height and weight; and (8) calculation of a Framingham 10-year risk percentage.

24.  Paragraph 8-26 of Army Regulation 40-501 also states that Reserve component Soldiers will be referred to their own medical provider outside of the military system for any further follow-up evaluation, treatment, and so forth.  The Soldier will provide copies of any records (pertaining to their medical management) from their civilian medical provider for inclusion in their military medical health record.  For those Soldiers with a Framingham 10-year risk score of greater than 15 percent, a history of coronary heart disease or a coronary heart disease risk equivalent (peripheral arterial disease, abdominal aortic aneurysm, symptomatic carotid artery disease and diabetes), they must undergo a Level II evaluation.

25.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army physical disability evaluation system and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  It provides for medical evaluation boards which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501.  If the medical evaluation board determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a physical evaluation board.

26.  Paragraph 3-1 of Army Regulation 635-40 provides that the mere presence of 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 member reasonably may be expected to perform because of his or her office, rank, grade or rating.  The Army must find that a service member is physically unfit to reasonably perform their duties and assign an appropriate disability rating before they can be medically retired or separated.
27.  Paragraph 3-2b of Army Regulation 635-40 provides for retirement or separation from active service.  This provision of the regulation 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.  The regulation also states that when a Soldier is being processed for separation or retirement 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 or retirement creates a presumption that the Soldier is fit.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the OHARNG failed to follow military regulations and as a result he did not seek treatment that would have made his heart surgery less severe.  However, there is no evidence and the applicant has not provided sufficient evidence which indicates he did not receive the proper treatment for his heart condition.

2.  The applicant underwent a periodic medical examination (Phase I of CVSP) on 6 June 1999 as required in accordance with Army Regulation 40-501.  During the applicant's periodic medical examination, competent medical authorities conducted a health risk factor screening and identified cardiovascular risk factors which required a need for further medical work-up.  As a result, the applicant was referred to Phase II of CVSP.  The results of Phase I of the CVSP are not available.

3.  The applicant contends that the OHARNG negligently failed to provide notice that he failed Phase I of the CVSP.  However, the evidence of record shows the State of Ohio Adjutant General's Department prepared a memorandum on 9 August 1999 which notified the applicant that he had failed Phase I of the CVSP and that he must undergo Phase II of the CVSP.  A copy of the memorandum was also furnished to other units.

4.  The applicant's contention that he did not receive the 9 August 1999 memorandum until November 2003 is noted.  The evidence of record shows the applicant was in the Inactive National Guard from July 1999 to July 2000.  Even though it cannot be determined why the applicant did not receive a copy of the memorandum, the evidence of record shows he underwent and passed Phase II of the CVSP in July 2000 (11 months after Phase I).  His referral for Phase II of the CVSP was an indicator that he had failed Phase I and an indication that he was informed he had failed Phase I.

5.  Although the applicant requests that his Reserve retirement be changed to a medical retirement or physical disability separation, it appears that his chain of command determined that his medical condition during his periodic medical examination did not render him medically unfit to perform his duties or justify physical disability processing.  The applicant passed the required tests of Phase II of the CVSP and he was cleared for continued service.

6.  Therefore, there is no basis for granting the applicant a medical retirement or a physical disability separation.

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)                                         AR20080015688



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080015688



9


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1