IN THE CASE OF:	  

		BOARD DATE:	  17 August 2010

		DOCKET NUMBER:  AR20100000325 


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 he be medically retired.

2.  The applicant states, in effect, that his myocardial infarction (MI) and an acute cerebral hemorrhage (stroke) occurred while he was on active duty and were determined to be in the line of duty (LOD); therefore, he should have been placed on the TDRL and/or granted a permanent disability retirement.

3.  The applicant provides no supporting documentation.

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, a U.S. Army Reserve (USAR) Medical Corps lieutenant colonel, had served in the USAR over 14 years and 6 months before entering active duty on 29 November 1996 in support of Operation Joint Endeavour. 

3.  On 20 May 1997, while serving in Germany, the applicant suffered a posterior wall MI.  

4.  On 14 July 1997, an informal LOD investigation determined that the applicant's MI was incurred in the LOD.

5.  A 15 September 1997, a Medical Evaluation Board (MEB) determined the applicant's post acute posterior MI with successful revascularization "meets AR 40-501, CH 3-21."  The applicant disagreed with the MEB's findings and recommendations and appealed the report.

6.  On 3 December 1997, the applicant's appeal was considered and the report of the board was returned for reconsideration.  

7.  On 4 December 1997, the MEB determined the applicant did not meet retentions standards due to his physical limitations and referred the case to a Physical Evaluation Board (PEB).  On 17 December 1997, the applicant agreed with the board's findings and recommendations.

8.  On 7 January 1998, the PEB found the applicant was physically unfit for further service and recommended a combined rating of 30 percent for the residuals of MI and recommended that he be placed on the Temporary Disability Retired List (TDRL) with reexamination in 1999.

9.  On 24 February 1998, the applicant was retired and placed on the TDRL. 

10.  On 6 May 1999, the applicant underwent a TDRL examination.  He was found not to have stabilized yet and he was to undergo a follow-up examination in 15 months.  The applicant concurred with this report.

11.  On 23 February 2000, the U.S Army Physical Disability Agency (USAPDA) notified the applicant that an informal PEB had reviewed his most recent medical examination, he was found fit for duty in his current grade and the recommendation was that he be removed from the TDRL.  He was also advised of his options.


12.  On 5 March 2000, the applicant submitted a rebuttal stating he disagreed with the PEB's findings, he was unable to perform the duties of a Soldier due to his medical conditions, and he should be medically retired.

13.  On 4 April 2000, the USAPDA advised the applicant that the PEB's findings were supported by substantial evidence.  His rebuttal had been reviewed and it did not contain any new substantive medical information.  The PEB's findings were affirmed he was determined to be fit for duty.

14.  On 10 April 2000 the USAPDA notified the applicant he had been found fit for duty and removed from the TDRL.

15.  On 7 May 2000, the applicant responded to the USAPDA notification by indicating he would resume his USAR affiliation within 90 days of his removal from the TDRL.  He apparently reentered the Individual Ready Reserve (IRR).

16.  On 15 August 2000, the applicant suffered a stroke and was hospitalized for evaluation and treatment.

17.  On 12 October 2001, the applicant submitted a statement that outlined his physical limitations.  He also requested an evaluation, and that he be returned to the TDRL.

18.  On 25 September 2002, an evaluation report shows the applicant's medical condition was determined not to meet retention standards and he was considered unfit for duty due to coronary artery disease. 

19.  A Non-Duty Related PEB, dated 3 March 2004, shows the applicant was found to be physically unfit due to coronary artery disease with chest pain and stroke with residual balance problems and difficulty ambulating.  The applicant concurred with these findings.

20.  In November 2005, the applicant suffered a second heart attack that further worsened his overall medical condition.  The damage to his heart required quadruple coronary bypass surgery.

21.  A Department of Veterans Affairs (VA) Rating Decision, dated 13 February 2007, granted the applicant "service connection for coronary artery disease status post myocardial infarction and four vessel coronary artery bypass graft" with a 100 percent disability rating.  He was also awarded 0 percent service connection for hypertension, 10 percent for a cerebral hemorrhage, and 

0 percent for psoriasis all effective 24 April 2006.  Additionally, the rating decision shows the VA considered his two heart attacks and his stroke were secondary to his hypertension.

22.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, an appointment, including officer procurement programs and medical fitness standards for retention and separation, including retirement.  Chapter 3 provides standards for medical retention and lists those conditions that are considered medically unfit for retention on active duty.  These conditions include coronary artery disease and strokes.

23.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 3-4, LOD decisions, states that under the laws governing the Army Physical Disability Evaluation System, Soldiers who sustain or aggravate physically unfitting disabilities must meet the following LOD criteria to be eligible to receive retirement and severance pay benefits.  The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. 

24.  Title 10, U.S. Code (USC), chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of a disability incurred while entitled to basic pay, i.e. on active duty.

25.  Title 10, USC, section 1201 (Regulars and Members on Active Duty for More Than 30 Days) sets forth the law for disability retirement and provides that the disability must be:

	a.  based on accepted medical principles, the disability is of a permanent nature and stable; 

	b.  not the result of the member’s intentional misconduct or willful neglect, and was not incurred during a period of unauthorized absence; and 

	c.  either:

		(1)  the member has at least 20 years of service computed under section 1208 of this title; or 

		(2) the disability is rated at least 30 percent under the standard schedule of rating disabilities in use by the VA at the time of the determination; and either:
			(a) the disability was not noted at the time of the member’s entrance on active duty (unless clear and unmistakable evidence demonstrates that the disability existed before the member’s entrance on active duty and was not aggravated by active military service);

			(b) the disability is the proximate result of performing active duty;

			(c) the disability was incurred in LOD in time of war or national emergency; or 

			(d) the disability was incurred in LOD after September 14, 1978;

			(e)  This section applies to the following members: 

				(1) A member of a regular component of the armed forces entitled to basic pay;

				(2) Any other member of the armed forces entitled to basic pay who has been called or ordered to active duty (other than for training under section 10148 (a) of this title) for a period of more than 30 days;

				(3) Any other member of the armed forces who is on active duty but is not entitled to basic pay by reason of section 502 (b) of title 37 due to authorized absence;

26.  Title 10, USC, section 1202 (Regulars and Members on Active Duty for More Than 30 Days: TDRL), provides for the placement of a member on the TDRL when the disability may be permanent.  Placement on the TDRL requires that the member meet the criteria of Title 10, USC, section 1201.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant states, in effect, that his heart attack and stroke occurred while he was on active duty and were determined to be in the LOD; therefore, he should have been placed on the TDRL and/or granted a permanent disability retirement.

2.  The applicant did suffer an MI on 20 May 1997 while he was on active duty and it was determined to be in the LOD on 14 July 1997.  It was this condition that resulted in his placement on the TDRL in 1998. 

3.  Despite the applicant's disagreement with its decision, the USAPDA determined the applicant was fit for duty and removed him from the TDRL on 7 May 2000.

4.  Following his removal from the TDRL and while he was apparently serving in the IRR, the applicant suffered a stroke and a second heart attack.  

5.  Since he was not on active duty, his medical evaluation was proper conducted by an NDR PEB, that found him not physically fit.  The NDR PEB findings are consistent with policy and regulations.

6.  Because the applicant was not in an active duty status when found to be medically unfit by the NDR PEB, he does not qualify for placement on the TDRL for these conditions and is not eligible for disability retirement. 

7.  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 this 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)                                         AR20100000325



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ABCMR Record of Proceedings (cont)                                         AR20100000325



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