IN THE CASE OF:
BOARD DATE: 12 July 2011
DOCKET NUMBER: AR20100024960
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 a partial reconsideration of his previous application for the following:
a. compensation for the time he would have been employed by the U.S. Army while undergoing medical treatment for the correction of his medical conditions; and
b. service credit for the time he would have continued on active duty (AD) had he received the proper medical treatment.
2. He states, in effect, he was medically terminated from flight status in December 2008, after an Army doctor diagnosed him with Heart Arrhythmia. He contends that from January to May 2009, he made several formal requests to remain in the Army until his condition could be corrected. However, his requests were denied.
3. He also states he was honorably discharged on 31 May 2009, but because of the medical diagnoses by the Army and the termination of his flight status, he was further prevented from returning to his former civilian occupation as a pilot for a commercial airline company. He was also faced with medical expenses and delays in receiving the medical care he needed as a civilian.
4. He adds that he was granted a Medical Certification First Class by the Federal Aviation Administration (FAA) in September 2010 and can return to work; when the Army needed experienced retired pilots to come back on active duty during the Global War on Terrorism (GWOT), he answered the call. He should have been allowed to remain on active duty to address his medical condition and processed to return to his former civilian occupation.
5. He provided a medical certification letter from the FAA.
CONSIDERATION OF EVIDENCE:
1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090014983, on 24 June 2010.
2. He provided a letter from the FAA, dated 18 August 2010, Subject: Authorization for Special Issuance of a Medical Certification (Authorization) AAM-31. This document is considered to be new evidence.
3. On 30 November 1996, he was honorably retired under the Voluntary Early Retirement Program after completing over 16 years of AD service as an Aviation Warrant Officer. On 15 May 2004, he volunteered to serve on AD in support of the GWOT, as a U.S. Army Reserve (USAR) aviation officer in the grade of major/0-4.
4. His records show that in preparation for his retirement from AD, he underwent a pre-separation physical. He was referred to the Cardiology Clinic at William Beaumont Army Medical Center and was diagnosed with paroxysmal atrial tachycardia on 23 December 2008.
5. His records contain a Corrected Copy of Headquarters, U.S. Army Air Defense Artillery Center and Fort Bliss, Orders 013-0004, dated 13 January 2009. This order shows he was scheduled to retire from AD on 31 May and be placed on the retirement list on 1 June 2009.
6. On 21 January 2009, he submitted a memorandum through his chain of command, to the Commander, U.S. Army Human Resources Command (AHRC), requesting to change his retirement date from 31 May to 31 July 2009, due to medical issues that were discovered during his pre-separation physical. He also requested to have a determination of his health and ability to return to his former civilian occupation before he exited the Army.
7. On 11 May 2009, his battalion commander requested that the applicant be medically evaluated for assignment to the Warrior Transition Unit (WTU) in order to receive the needed treatment for his heart arrhythmia before he could resume his former occupation.
8. His record contains a DA Form 3349 (Physical Profile), dated 13 May 2009, which shows he was granted a temporary profile for atrial tachycardia. Page 2 (Continuation) block of this form shows the administering physician stated that the applicant desired treatment to resolve his medical illness before he retired. He would need to be reevaluated in 90 days to determine if he was medically fit to be a pilot, and it would be best accomplished if the applicant was still on AD.
9. On 15 May 2009, his brigade commander recommended approval on his potential assignment to the WTU and forwarded the request to AHRC.
10. A memorandum from the William Beaumont Warrior Transition Battalion, dated 20 May 2009, Subject: Statement of Medical Condition and Treatment Plan, shows a request was sent to AHRC to retain the applicant on AD for an additional 180 days to continue treatment for paroxysmal atrial tachycardia and he should make a full recovery.
11. His record is void of a response from AHRC concerning his request for extension on AD to undergo medical treatment.
12. His DD Form 214 for the period ending 31 May 2009 shows he was honorably retired in the grade of major/0-4 after completing more than 21 years of AD service.
13. His record is void of evidence to show he was referred for a Medical Evaluation Board (MEB) after his diagnosis of atrial tachycardia and prior to his retirement.
14. A letter from a civilian provider, dated 21 August 2009, shows the applicant had been a patient of the provider since January 2009. He underwent ablation on 25 March 2009 and the procedure was successful in eliminating the tachycardia; however, the tachycardia reoccurred a few weeks later, and repeat ablation was recommended. The provider also noted that the applicants prognosis was excellent and medical treatment was required through radiofrequency ablation.
15. A Department of Veterans Affairs (VA) Form (Request for Outpatient Services), period of validity 1 April to 1 May 2010, shows he was approved for short-term care under the VA medical system for the treatment of Sleep Apnea and Bells Palsy.
16. His record also contains documentation that shows he volunteered for AD in a Permanent Change of Station status for 550 days in June 2010. This documentation also shows on a DA Form 7349 (Initial Medical Review Annual Medical Certificate) that he stated that he had a heart ablation to correct a heart arrhythmia on 13 October 2009 and the procedure was successful.
17. In the letter he provides from the FAA, it shows that he was ineligible for medical certification under Title 14 of the Code of Federal Regulations (CFR) due to his history of atrial tachycardia and obstructive sleep apnea. However, the FAA granted his authorization for special issuance of first-class airman medical certificate under Title 14 of the CFR, Section 67.40, with an expiration date of
30 June 2012.
18. Army Regulation 600-8-24 (Officer Transfers and Discharges), states that an officer who requests retirement, and has a medical problem will be evaluated by the commander (or designated representative) of the Medical Treatment Facility (MTF) to determine if referral to a Physical Evaluation Board (PEB) is necessary. When the officer is referred to the PEB, the MTF will promptly notify the Commander, AHRC. When a PEB is not necessary but additional medical care is, a nondisability retirement will be processed. Medical treatment will continue up to and after (if necessary) the approved retirement date. The retirement date will not be changed because of medical treatment.
19. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 3-7 provides guidance for retaining Soldiers on AD after scheduled nondisability retirement or discharge date. A Soldier whose normal scheduled date of nondisability retirement or separation occurs during the course of hospitalization or disability evaluation may, with his or her consent, may be retained in the service until he or she has attained maximum hospital benefits and completion of disability evaluation if otherwise eligible for referral into the disability system.
20. Army Regulation 40-501, chapter 3 lists the medical conditions and the treatment thereof, which require referral to an MEB. Neither atrial tachycardia nor the treatment of cardiovascular ablation are listed in chapter 3 of this regualtion.
DISCUSSION AND CONCLUSIONS:
1. His request for reconsideration of a previous application for compensation and service credit for the medical treatment he would have received had he been retained on AD was carefully considered.
2. There is no evidence that he had a medically disqualifying condition for retention in the Army. It appears he erroneously believes fitness for duty is based on his ability to return to his civilian job. This is not so. Retraining or compensation for Soldiers unable to perform their former jobs is the responsibility of the Department of Veterans Affairs.
3. He had an approved retirement and was not pending disability processing or occupying a hospital bed. As such, he was not eligible for retention on active duty for continued medical treatment.
4. He has not shown through evidence or argument that he was not provided or afforded the required medical treatment necessary by the military service for his medical condition or that the original Board's conclusion that he was not entitled to compensation or AD service credit for not being retained on AD was in error or unjust.
5. His retirement processing was in accordance with applicable regulations and all requirements of the law were met. Therefore, the overall merits of the case, including his first class airman medical certification document, are insufficient as a basis for the Board to reverse its previous decision. As a result, he is not entitled to the requested relief.
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 to amend the decision of the ABCMR set forth in Docket Number AR20090014983, dated 24 June 2010.
_______ _ __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) AR20100024960
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ABCMR Record of Proceedings (cont) AR20100024960
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