IN THE CASE OF:	  

		BOARD DATE:	  23 September 2010

		DOCKET NUMBER:  AR20100009954 


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, a medical retirement and promotion to pay grade E-6.

2.  The applicant states, in effect, he should have been medically retired with compensation from 11 January 2007.  He also states, in effect, he was not promoted to pay grade E-6.  It is imperative his illnesses are reviewed as they are creating problems personally and in acquiring employment.  There is evidence of his cardiac arrest in 1990 and throughout his active Army National Guard (ARNG) and Reserve duty.  His previous commander forced him into retirement due to his medical conditions and not for behavior or bad conduct.

3.  He provides copies of the following documents:

* His 1958 and 1962 medical records
* His Clinical Record, dated 29 March 1983
* His Standard Forms 600 (Health Record - Chronological Record of Medical Care) from April 1977 to December 1984
* A Standard Form (SF) 502 (Narrative Summary (Clinical Resume), dated 26 July 1983
* His October 1990 chest and lung radiology reports and cardiac profile
* His 1990 Glynn-Brunswick Memorial Hospital Clinical Laboratory Reports, Emergency Department Progress Notes, Cardiac Catheterization Flow Sheet and Report, and Discharge Summary
* 
His 2007 Retired Reserve assignment orders
* His December 2008 Radiologic Examination Report, Lab Results, and Progress Notes
* His 2008 and 2009 letters to his Department of Veterans Affairs (VA) Representative and Member of Congress and a VA Form 21-4128 (VA Statement in Support of Claim)

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.  He provided copies of his admission records, dated 19 February 1962, which show he was admitted to the hospital for an upper respiratory infection at 5 years of age.

3.  The applicant's military records show he was found qualified for entry into the Armed Forces on 9 October 1975.  He enlisted in the Regular Army on 16 October 1975.

4.  He provided copies of his SFs 600 from April 1977 to December 1984, which show he was diagnosed with and treated for pain in his left sternum, chest, neck, and side; joint tenderness; hemorrhoids; and fainting spells.

5.  He also provided a copy of his Clinical Record, dated 29 March 1983, showing he underwent an anal dilatation and he was placed on convalescent leave.  He also provided a copy of his SF 502 that shows he was discharged from Fitzsimons Army Medical Center, CO, on 10 June 1983 after being evaluated with possible pulmonary histoplasmosis (respiratory infection caused by inhaling the spores of fungus) and consideration of medical feasibility of military retention.

6.  He further provided copies of an SF 513 which shows he was seen by Mental Health Service in March 1986 for increased stress.  He also provided copies of SFs 600 which show he was seen in the Internal Medicine Clinic in October and November 1985 and April 1986 for chest pain.

7.  He was discharged from active duty on 28 May 1986.  He enlisted in the ARNG on 5 March 1987 and he was discharged on 4 March 1988.  He again enlisted in the ARNG on 28 January 1989.

8.  In October 1990, he underwent a chest and lung scan.  His lungs were found to be clear and his heart size was within normal limits with normal pulmonary vasculature.  He was admitted to Glynn-Brunswick Memorial Hospital on 5 October 1990 to rule out a myocardial infarction.  On 8 October 1990, he underwent a cardiac catheterization.  The report shows a trivial gradient across his pulmonic valve which should not cause him any problems.  He was discharged from the hospital on 15 October 1990.

9.  He was separated from the ARNG on 27 January 2002 and he was transferred to the U.S. Army Reserve (USAR).

10.  A DA Form 2173 (Statement of Medical Examination and Duty Status) shows on 28 July 2004, while in an active duty for training status, he was treated for back and leg pain.  He was disposed to quarters and referred to orthopedics.  On 19 January 2005, his injury was approved for line of duty.

11.  His military records contain a Report of Medical Examination, dated 28 December 2005, for the purpose of his retention, that shows a temporary profile was recommended until a cardiac evaluation was completed.  It was also recommended no vigorous physical activity until cleared by a cardiologist.  He was found qualified for service.

12.  On 10 May 2006, he was assigned a permanent profile of 311111 for an abnormal electrocardiogram (EKG) and the recommendation for a Medical Evaluation Board (MEB)/Physical Evaluation Board (PEB).  His assignment limitations were:  no Army Physical Fitness Test (APFT), no alternate APFT, no standard or modified aerobic conditioning activities, and limitations in any type of strenuous physical activity until cleared by cardiology.  There is no evidence his condition was determined to be in the line of duty.

13.  An SF 507 (Medical Record), dated 10 May 2006, shows he was advised on 16 March 2006 of his abnormal EKG and additional information was requested.  On 10 May 2006, he failed to comply with additional medical information.  Based 

on information obtained for the physical examination, he did not meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-41e, by reason of an abnormal EKG.

14.  On 10 May 2006, the Assistant to Command Surgeon, Army Human Resources Command, St. Louis, MO (AHRC-STL), advised him of his failure to comply and provide the documentation for a determination of his physical fitness in accordance with a directive, dated 16 March 2006.  He was also advised a determination had been made and he had been found not fit for medical retention and a “C” (permanent disqualification code) had been placed in his medical file based on the determination made by the Command Surgeon.

15.  He was released from his Reserve unit in pay grade E-5 on 11 January 2007, under the provisions of Army Regulation 140-10, for being medically disqualified - not result of own misconduct.  He was transferred to the Retired Reserve.

16.  His APRC Form 249-e (Chronological Statement of Retirement Points), dated 21 July 2010, shows he was credited with 18 years and 7 months of qualifying service for retired pay as of 12 January 2007.

17.  He further provides copies of his December 2008 Discharge Summaries, Progress Notes, and Radiologic Examination Reports which show he was diagnosed with chest pain, an abnormal EKG, hypertension, hyperlipidemia, and gastroesophageal reflux disease.  

18.  In January 2009, he requested a favorable rating from the VA due to his medical conditions.

19.  Army Regulation 40-501, then in effect, provided information on medical fitness standards for retention.  Paragraph 3-41e specified miscellaneous conditions and defects not mentioned elsewhere in Chapter 3 were causes for referral to an MEB of the conditions resulting in interference with satisfactory performance of duty; or the individual’s health or well-being would be compromised if her/she were to remain in the military service; or in view of the Soldier’s condition, his/her retention in the military service would prejudice the best interests of the Government.  

20.  Army Regulation 40-501, paragraph 9-10, also specified normally Reservists who did not meet the fitness standards set by chapter 3 would be transferred to the Retired Reserve per Army Regulation 140-10 (Army Reserve Assignment, 

Attachments, Details, and Transfers), or discharged from the USAR per Army Regulation 135-178 (ARNG and Army Reserve Enlisted Administrative Separations).  Those Reservists could request continuance in an active USAR status for a determination by the Command Surgeon.  Reservists with non-duty related medical conditions pending separation for failing to meet the medical retention standards of chapter 3 of that regulation were eligible to request referral to a PEB for a determination of fitness.  Because these were cases of Reservists with non-duty related medical conditions, MEBs were not required.  Once a review was requested, the case would be forwarded to the PEB by the AHRC Command Surgeon’s office.

21.  Army Regulation 140-10, chapter 7, prescribes the policies for the removal of Soldiers from an active status.  Paragraph 7-8a provides for the removal of a Soldier when found medically unfit (removal rule 8) for retention unless a waiver in granted in accordance with Army Regulation 40-501.  Removal rule 8 specifies Soldiers whose medical defects are curable within 1 year from the date disqualified (temporarily disqualified for medical defects).  

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the applicant was diagnosed and treated for a variety of medical conditions to include chest pain, beginning as early as October 1990, during his period of service.  In December 2005, while in the USAR, he had an abnormal EKG.  In January 2006, he was recommended for a temporary profile until a cardiac evaluation could be completed.  On 10 May 2006, he was assigned a permanent profile due to an abnormal EKG and an MEB/PEB was recommended.  This is no evidence of a line of duty determination.

2.  On 10 May 2006, he was notified of his failure to comply with a request for additional medical information.  Based on his failure to provide the documentation for a determination of his physical fitness he was found unfit for medical retention by the AHRC Command Surgeon.  He was reassigned to the Retired Reserve on 11 January 2007 as medically disqualified. 

3.  He was given the opportunity to submit additional medical documentation in support of his case but did not do so.  There is also no evidence he requested a PEB as was his right to do so.  Without evidence to the contrary, there appears to be no error or injustice in his separation process from the USAR.  His contentions and the documents he submitted do not demonstrate error or injustice in the disposition of his case by the AHRC Command Surgeon.

4.  There is no evidence any of his other medical conditions rendered him unfit to perform his duties at the time.  There is no evidence and he provided no evidence these medical conditions required imposition of assignment limitations or even referral to an MEB for medical separation processing at the time.

5.  In view of the circumstances in this case, the applicant is not entitled to a medical retirement with compensation.

6.  There is also no evidence of record to show he was recommended for or promoted to pay grade E-6 prior to his reassignment to the Retired Reserve on 11 January 2007.  He has provided no evidence to show he was advanced or promoted to pay grade E-6 in the USAR and is now entitled to that promotion.  Therefore, there is no basis for granting this request.

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)                                         AR20100009954



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)