IN THE CASE OF:	  

		BOARD DATE:	  24 June 2010

		DOCKET NUMBER:  AR20090014983 


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 records be corrected to show he was retained on active duty for medical treatment with entitlement to back pay and allowances and service credit from June 2009 to March 2010.  He also requests he be recalled to active duty to resolve his medical problems.

2.  The applicant states he has heart problems that were discovered during his retirement physical which subsequently caused him to be grounded/stopped from piloting aircrafts.  He states he was a military retiree who was voluntarily recalled to active duty; he served 5 more years and was retiring to return to his former employment with American Airlines.  He maintains that on three occasions, he requested to be extended on active duty to receive needed treatment, but was unjustly denied extension.

3.  The applicant explains that he was diagnosed with an irregular heart beat by an Army cardiologist subsequent to his retirement physical.  He adds the diagnosis took away his class I physical and license to fly planes.  He recalls that in November 2008, he had a class date to start ground school training with American Airlines in March 2009.  However, on 22 December 2008, he was informed about his heart problems.  He offers that his family lost his active duty health care, dental, and life insurance.  He acknowledges receiving medical care as a retiree, but not of the same quality as he received as an active duty Army officer.

4.  The applicant states that since the clock cannot be turned back, he requests back pay and service credit for the period of time he should have been on active duty from June 2009 to March 2010.  He adds that this is the time period when his professional future would have been decided by the Federal Aviation Administration.

5.  The applicant provides copies of his self-authored statement, DD Forms 214 (Certificate of Release or Discharge from Active Duty), U.S. Army Reserve Personnel Command Form 249-E (Chronological Statement of Retirement Points), retiree recall to active duty orders, retirement orders, support statement, Preseparation Counseling Checklist, DD Form 93 (Record of Emergency Data), Servicemembers' Group Life Insurance (SGLV) Form 8286 (SGLV Election and Certificate), DA Form 3349 (Physical Profile), statement of medical condition and treatment plan, Warrior Transition Unit (WTU) assignment request, request for change of retirement date, contact lists and telephone numbers, medical consult documents, and Department of Veterans Affairs (VA) medical treatment documents.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he was honorably retired under the Voluntary Early Retirement Program on 30 November 1996 after serving 16 years, 7 months, and 14 days.

2.  On 15 May 2004, the applicant was recalled to active duty as a U.S. Army Reserve (USAR) aviation officer in the grade of major.

3.  On 23 December 2008, the applicant was seen at the William Beaumont Army Medical Center Cardiology Clinic.  The reason for the consultation was listed as atrial tachycardia.

4.  On 11 January 2009, the applicant requested his retirement date of 31 May 2009 be changed to 31 July 2009 due to medical issues discovered during his retirement physical.  The applicant stated that his request was denied.

5.  On 11 May 2009, the battalion commander requested that the applicant be medically evaluated for assignment to the WTU.  He explained that the applicant was diagnosed with heart arrhythmia and he needed treatment before he could resume his former occupation.  He also said the applicant was voluntarily recalled to active duty to help fill a shortage of qualified and experienced fixed wing pilots.  The brigade commander recommended approval.

6.  A DA Form 3349, dated 13 May 2009, shows the applicant received a temporary physical profile for an illness/disease described as atrial tachycardia.  The expiration date of the profile was listed as 12 August 2009.  The remarks stated the "[Applicant] desires treatment to resolve his medical illness before he retires.  He will need to be re-evaluated in 90 days to determine his medical fitness to once again pilot aircrafts.  This will be best accomplished if he is still an active duty Soldier."

7.  William Beaumont Warrior Transition Battalion memorandum, dated 20 May 2009, subject:  Statement of Medical Condition and Treatment Plan, addressed to U.S. Army Human Resources Command (HRC), Alexandria Virginia, stated the applicant was diagnosed with paroxysmal atrial tachycardia.  The memorandum stated he had undergone treatment for the arrhythmia, but would need to be reevaluated on 13 August 2009 to see if he was cured and cleared to return to flying.  The physician added that the applicant should make a full recovery and recommended that he be allowed 180 days to be reevaluated.

8.  In his self-authored statement, dated 20 August 2009, the applicant provided a list of the events that occurred prior to being diagnosed with heart problems and his subsequent retirement from active duty.  The list included the following:

* 15 May 2003, voluntarily recalled to active duty for 3 years
* extended on active duty for 2 additional years
* November 2008, submitted request for voluntary retirement; approved with retirement date of 31 August 2009
* requested and was granted change in retirement date to 31 May 2009
* December 2008, diagnosed with heart problems during retirement physical
* January 2009, requested and denied extension on active duty by HRC
* March 2009, submitted second request and denied extension on active duty
* April 2009, requested and denied assignment to WTU
* 31 May 2009, retired from active duty
* June 2009, awaiting results of medical procedure/operation
* 15 July 2009, medical procedure failed and did not pass flight physical; not fit to fly

9.  The applicant did not provide a copy of his separation physical.

10.  In a statement provided by the applicant's doctor, dated 21 August 2009, the doctor stated the applicant was diagnosed with atrial tachycardia and his prognosis was excellent.  He stated the applicant needed radiofrequency ablation and hopefully the tachycardia could be controlled with present medication.  Additionally, he offered that the ablation performed on 25 March 2009 was successful in eliminating the tachycardia; however, the tachycardia reoccurred a few weeks later.

11.  The applicant provided documentation from the VA that shows he was diagnosed with sleep apnea and Bell's palsy in April/May 2010.

12.  In the processing of this case, advisory opinions were requested from HRC, the U.S. Army Physical Disability Agency (USAPDA), and the Office of the Surgeon General.  Each agency provided brief comments and stated that the request was not within their purview or authority.  The comments rendered by USAPDA were forwarded to the applicant for his acknowledgement and/or comments.  On 22 December 2009, the applicant responded to the comments reiterating the information contained in his application to the Board.  His additional comments are contained in his statement.

13.  The WTU Consolidated Guidance states that the goal of the WTU Program is to expeditiously and effectively evaluate, treat, return to duty, and/or administratively process out of the Army and refer to the appropriate follow-on health care system Soldiers with medical conditions.  The WTU's provide critical support to wounded Soldiers — who are expected to require 6 months of rehabilitative care and the need for complex medical management — and their families.

14.  The HRC website, Mobilization of Retirees, states that retired Soldiers are only mobilized for active duty to support a national emergency and the buildup of forces when personnel requirements cannot be met using Active Army personnel, National Guard, or Reserve forces.  The mobilization and recall of retired Soldiers normally requires the approval of the Secretary of the Army.  https://www.hrc.army.mil/site/Reserve/soldierservices/mobilization/retireemobilization.htm

15.  Army Regulation 601-10 (Management and Recall to Active Duty of Retired Soldiers of the Army in Support of Mobilization and Peacetime Operations) states that there must be a valid vacant Army requirement that matches the particular grade and skill of the retiree before they can be recalled to active duty.

DISCUSSION AND CONCLUSIONS:

1.  It appears the real issue of this case is the applicant's loss of civilian employability due to his heart problems and his inability to receive the same type of medical service as that afforded to active duty officers.

2.  The evidence of record shows the applicant was not a candidate for entry into the WTU Program.  The WTU's provide critical support to wounded Soldiers who are expected to require 6 months of rehabilitative care and need complex medical management.  There is no evidence to show the applicant's condition was severe enough to warrant retention on active duty and subsequent assignment to the WTU.

3.  Although not included in the applicant's evidence to the Board, he was medically cleared for separation from the Army by qualified medical personnel which indicates his condition was not life threatening and was being adequately controlled.  If this was not the case, the applicant would have been processed through the medical disability system which is the only official way he could have remained on active duty.

4.  It is unfortunate that the applicant's livelihood has suffered by the discovery of his medical condition and he can no longer pass a flight physical; however, the Department of Veterans Affairs (VA) may be a more appropriate venue to address this issue.  The VA 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.  Retention on active duty for medical treatment solely because such a condition ultimately may impair his civilian employability is not a requirement of military medical facilities.

5.  Additionally, the applicant's argument that he would receive better medical care as an active duty officer rather than as a retiree was considered.  However, there are no provisions in Army regulations to allow the recall of a Soldier to active duty for the sole purpose of securing better medical care.

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

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)                                         AR20090014983



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090014983



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1