IN THE CASE OF:
BOARD DATE: 22 December 2011
DOCKET NUMBER: AR20110009775
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, disability retirement from active duty.
2. The applicant states, in effect:
* he was a mobilized U.S. Army Reserve (USAR) Soldier serving on active duty from 21 February 2003 to 20 April 2004
* while on active duty, he developed a pulmonary embolism (PE) associated with a deep vein thrombosis (DVT)
* the PE and DVT presented after his release from active duty (REFRAD) and led the USAR to declare him medically disqualified in a memorandum, dated 11 January 2008
* also in January 2008, the Department of Veterans Affairs (DVA) granted him a 30 percent (%) disability rating percentage for his medical condition
* he transferred to the Retired Reserve on 23 April 2008
3. The applicant provides:
* Correspondence from the Physical Disability Board of Review
* DVA documentation
* Army line of duty (LOD) determination
* Department of the Army notice of medical disqualification
* Retirement orders
* Medical records
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
CONSIDERATION OF EVIDENCE:
1. The applicant was a USAR lieutenant colonel ordered to active duty on 21 February 2003 in support of Operation Enduring Freedom. He served as an intelligence officer in Iraq from 27 September 2003 to 26 January 2004. He was released from active duty on 20 April 2004.
2. The applicant underwent a hernia repair in March 2004. There is no record of the type of hernia or the specific procedure used to repair it.
3. Records show the applicant was seen by medical personnel for some leg swelling in July 2004.
4. A DA Form 2178 (Statement of Medical Examination and Duty Status), dated 22 November 2004, indicates the applicant:
* suffered a PE associated with a DVT in September 2004
* the DVT was "likely a result of [hernia] operation in MAR [March] 2004."
5. A memorandum, dated 20 December 2004, shows an investigation for PE and DVT was conducted and determined to have been in the LOD.
6. The applicant received his Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter) on 19 January 2007.
7. In January 2008, the DVA increased the percentage of the applicant's service-connected disability (DVT, left leg) from 0% to 10% effective 28 March 2007. His overall or combined rating was 20%.
8. On 11 January 2008, the applicant was notified he was medically disqualified for retention in the USAR for post-phlebitis syndrome (leg swelling) and he was offered the following options:
* elect transfer to the Retired Reserve
* elect to be discharged from the USAR
* elect consideration by a non-duty related Physical Evaluation Board (PEB)
9. On 21 January 2008, the applicant requested to be transferred to the Retired Reserve.
10. On 23 April 2008, the applicant was released from the USAR Control Group (Reinforcement) as a result of being medically disqualified and he was assigned to the Retired Reserve.
11. In January 2010, the DVA increased the percentage of the applicant's service connected condition (DVT, left leg) from 10% to 20%, effective 28 March 2007. His overall or combined rating was 30%.
12. Title 10, U.S. Code, 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 disability incurred while entitled to basic pay.
13. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent.
14. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. Under the laws governing the Army Physical Disability Evaluation System, Soldiers who sustain or aggravate physically unfitting disabilities must meet several lines of duty 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 was the proximate cause of performing active duty or inactive duty training.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends, "while serving on active duty as a mobilized U.S. Army Reservist for 14 months (including service in Iraq), I was stricken and subsequently diagnosed with a pulmonary embolism (PE) & deep vein thrombosis (DVT) in September 2004." He adds that despite his conditions being approved as in the line of duty, he was retired due to medical disqualification, rather than being given a PEB which could have directed physical disability retirement.
2. The evidence does not support the applicant's contention he developed a DVT and PE while on active duty in March - April 2004. He had a hernia repair in March 2004 and when he was released from active duty on 20 April 2004, he was completely asymptomatic. He did not develop any leg swelling (phlebitis) until July 2004, and the DVT and PE did not present until September 2004.
3. After the applicant was found medically disqualified for retention in the USAR for post-phlebitis syndrome in 2008, he was offered three options for disposition of his case, including a non-duty related PEB. He elected transfer to the Retired Reserve.
4. The applicant has not established a connection between his active duty hernia repair and his DVT. Although medical authorities may respectfully disagree, after
being free of symptoms for 3 months post-hernia repair, any subsequent phlebitis and DVT cannot be conclusively attributed to that surgery.
5. Additionally, the applicant twice engaged the DVA and he was only successful in getting his rating increased from 0% to 20% [30% was a "combined rating"]. There is no evidence the applicant had a 30% rating for post-phlebitis syndrome when he retired in 2008. Even if he had been afforded a PEB, he would not have been medically retired with 0-20% rating. He would have had the choice of a retirement with benefits at age 60 or severance pay and no benefits at age 60.
6. Therefore, there is insufficient evidence to show a medical retirement was warranted.
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) AR20110009775
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RECORD OF PROCEEDINGS
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ABCMR Record of Proceedings (cont) AR20110009775
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RECORD OF PROCEEDINGS
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