IN THE CASE OF:	  

		BOARD DATE:  17 January 2012

		DOCKET NUMBER:  AR20110012540 


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 medical discharge or medical retirement.

2.  He states:

* he wasn't processed out of the military through a medical board
* he had no idea he could have been medically discharged at the time
* he should have been medically retired, not just retired from the military
* his medical records show he clearly had medical problems [i.e., hypertension, migraines, atrial fibrillation, and lower back pain lumbar instability] while on active duty in support of Operation Enduring Freedom

3.  He provides:

* self-authored statement
* DD Form 294 (Application for a Review by the Physical Disability Board of Review (PDBR) of the Rating Awarded Accompanying a Medical Separation from the Armed Forces of the United States)
* two memoranda
* orders reassigning him to the Retired Reserve, dated 28 September 2006
* DA Form 8007 (Individual Medical History)
* DD Form 2808 (Report of Medical Examination)
* letter, dated 14 April 2003
* medical documents



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 enlisted in the Regular Army on 12 April 1983.  He completed basic and advanced individual training and was awarded military occupational training (MOS) 71L (Administrative Specialist).

3.  On an unknown date in 1985, he underwent an electrocardiogram.  His Standard Form 520 (Electrocardiograhic Record) shows normal sinus rhythm, left ventricular hypertrophy by voltage, and abnormal electrocardiogram readings.

4.  On various dates between September 1985 and February 1986, he received medical treatment for:

* suture removal
* abnormal cardiac findings
* back pain
* follow-up cardiac problems
* shortness of breath

5.  He was honorably released from active duty for completion of required active service on 11 April 1986 under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 4.  On the following day, he was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement).  He reenlisted in the USAR on 4 March 1989.

6.  He provides the front side of a DA Form 8007 (undated) which shows the date of his last physical, hearing, and eye examinations was 20 February 1997 and his physical profile was "111111."

7.  He reenlisted in the USAR again on 21 January 2001.

8.  On 30 August 2002, he underwent a physical examination for the purpose of retention.  His DD Form 2808 shows in:

* block 74a (Examinee/Applicant), the examining physician indicated the applicant was not qualified for service with the entry "Board"
* block 74b (Physical Profile), he received a physical profile of "311121"
* block 76 (Significant or Disqualifying Defects), his significant or disqualifying defects were listed as atrial fibrillation and vision
* block 77 (Summary of Defects and Diagnoses), his defects and diagnoses were listed as hypertension (poor control), history of atrial fibrillation, dyspepsia [indigestion], and migraines
* block 78 (Recommendations – Further Specialist Examinations Indicated), the examining physician recommended the applicant needed further evaluation of diagnoses before "pass" and he needed a glaucoma evaluation

9.  He provides a memorandum from the Federal Strategic Health Alliance (FEDS HEAL), dated 30 August 2002, which indicates the results of his retention physical/annual dental examination.  A check was placed beside the following entries under item 1:

a.  Service member is physically fit for retention under [provisions of Army Regulation 40-501 (Standards of Medical Fitness)].

b.  Service member is not eligible for retention under provisions of Army Regulation 40-501.  Soldier should be referred to a non-duty physical evaluation board (PEB).  [This entry was crossed out and initialed to show who crossed it out.]

d.  Service member has one or more abnormal finding as indicated on the DD Form 2808 (Report of Medical Examination) or Standard Form 603 (Dental) and requires follow-up with a civilian medical or dental provider.  In accordance with paragraph 9-3, Army Regulation 40-501, this is the Soldier's responsibility and is to be done at no expense to the Army Reserve.  The service member will provide copies for the military health record of any documentation from civilian medical/dental providers pertaining to the follow-up.  See items below:

over [maximum allowable weight]
blood pressure

e.  Results of physical examination require commander to review and/or take appropriate action.

h.  Exam sent to review/approval authority for review.

10.  A typewritten entry on the FEDS HEAL memorandum indicates the applicant had an abnormal heart rhythm and completion of a Standard Form 507 (Medical Record) was requested, but was never returned.

11.  On 3 September 2002, he was placed on a temporary physical profile for abnormal heart rhythm with a physical profile of "311121."  His assignment limitations were listed as no running or strenuous exercise.  The DA Form 3349 (Physical Profile) was signed by the profiling officer, but it was not signed by the approval authority or unit commander.

12.  He was ordered to active duty on 18 November 2002.

13.  A memorandum from the Division Surgeon, Headquarters, 100th Division (Institutional Training), Louisville, KY, dated 12 January 2003, informed the applicant's unit commander that he was eligible for retention under the provisions of Army Regulation 40-501.  The Division Surgeon indicated the applicant must follow up with his civilian medical provider regarding hypertension and have a body fat determination for Army Weight Control Program.  In addition, the memorandum indicated the notation of abnormal heart was past medical history and was not current by the physical examination.

14.  A letter from a physician of internal medicine, dated 14 April 2003, stated the applicant was evaluated and was found to have low back pain.  The physician recommended that the applicant refrain from running, jumping, pull-ups, push-ups, or other strenuous activity from 15 April 2003 to 5 May 2003.

15.  He provides a Standard Form 600E (Chronological Record of Medical Care) which shows he was evaluated for right calf pain on 18 April 2003 and requested an update of his physical profile.  The physician indicated the applicant's lower back pain started while he was weight lifting 3 weeks previously; he had recurrent pain in right lower leg for a few months; and he had a history of atrial fibrillation, hypertension, hyperlipidemia [high cholesterol], and seasonal allergies.

16.  He received noncommissioned officer evaluation reports (NCOER's) covering the following periods:

	a.  December 2000 through November 2001 – platoon sergeant – rated as "Among the Best, Successful-1, Superior-1"; passed Army Physical Fitness Test (APFT) with rater comments of "capable of working long hours in order to sustain a mission"; and

	b.  November 2002 through April 2003 – instructor/writer – rated as "Among the Best, Successful-2, Superior-2"; passed APFT with rater comments of "always appeared very energetic and physically fit."

17.  He was honorably released from active duty on 2 May 2003 at the completion of his required active service.

18.  He was issued a Notification of Eligibility for Retired Pay at Age 60 (20-year letter) on 25 March 2004.

19.  His Standard Form 600E shows he was evaluated for low back pain on 26 March 2004.

20.  He received NCOER's covering the following periods:

	a.  May 2003 through February 2004 – instructor/Writer – scored 312 on APFT; rated as "Among the Best, Successful-1, Superior-1"; passed APFT with rater comments of "accepted the challeng[e] of being physically fit"; and

	b.  October 2004 through September 2005 – chief instructor/writer – rated as "Among the Best, Successful-2, Superior-2"; passed APFT.

21.  On his Standard Form 600 (Chronological Record of Medical Care), dated 16 August 2006, the examining physician provided instructions to the civilian provider.  The physician indicated that due to the applicant's diagnosis of low back pain, it was his opinion that the applicant should limit activities to push-ups, sit-ups, 2.5-mile walk, biking, and swimming.

22.  Orders 06-271-00018, Headquarters, 108th Division (Institutional Training), dated 28 September 2006, show he was released from his current assignment and reassigned to the Retired Reserve effective 27 October 2006 based on completion of 20 or more years of qualifying service for retired pay at age 60.

23.  On 28 October 2010, he submitted a DD Form 294 to the PDBR and indicated:

	a.  he wasn't given a chance for a medical board;

	b.  he was boarded once in 2002, but he was found fit for retention;

	c.  he should have been medically discharged for his medical condition; and

	d.  he was awarded compensation for service connection from the Department of Veteran Affairs (VA) with a combined disability rating of 50 percent for lumbar instability with spondylosis, degenerative joint disease of lumbar spine with spondylosis, and atrial fibrillation which he had on active duty and prior to retirement.

24.  His service record does not contain any evidence which shows the results of the PDBR.

25.  He provides a self-authored statement in support of his claim in which he states:

	a.  he was honorably discharged from the military and was not given the opportunity to be medically discharged per review by the Army Review Boards Agency;

	b.  he has provided medical records and other documents to support his claim; and

	c.  he requests his military discharge be reviewed under the provisions of Title 10, U.S. Code, section 1552, which qualified him for a medical board review due to medical conditions he sustained while on active duty.

26.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness must be of such a degree that a Soldier is unable to perform the duties of his/her office, grade, rank, or rating in such a way as to reasonably fulfill the purposes of his/her employment on active duty.

27.  Army Regulation 635-40, paragraph 2-2b, as amended, provides that when a member is being separated by reason other than physical disability, his/her continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he/she was unable to perform his/her duties or that acute grave illness or injury or other deterioration of physical condition occurring immediately prior to or coincident with separation rendered the member unfit.

28.  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 rated at less than 30 percent.  Section 1212 provides that a member separated under section 1203 is entitled to disability severance pay.

29.  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 rated at least 30 percent.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he wasn't processed through a medical board is acknowledged.  However, the evidence of record does not indicate an error or injustice exists in this case.

2.  The evidence of record shows he underwent a physical examination on 30 August 2002 and he was not found qualified for retention.  The examining physician recommended that the applicant be further evaluated for his diagnoses of hypertension, history of atrial fibrillation, dyspepsia, and migraines.

3.  The documents regarding his suitability for retention are contradictory.  It appears he was twice thought to be unsuitable for medical problems that were old and, presumably, not affecting his ability to perform the duties of his MOS 71L.  His NCOER's show he performed duties as a platoon sergeant and instructor/writer and consistently passed his APFT's.

4.  He was ordered to active duty on 18 November 2002 and was released from active duty on 2 May 2003 at the completion of his required active service.  He was reassigned to the Retired Reserve on 27 October 2006.  The only document (e.g., memorandum, dated 12 January 2003) regarding his adherence to medical standards from his period of mobilization states he is eligible for retention.

5.  The applicant's continued performance of duty raises a presumption of fitness which he has not overcome by evidence of any unfitting, acute, grave illness or injury related to his separation.

6.  Therefore, the applicant's release from active duty on 2 May 2003 by reason of completion of his required period of active service and subsequent transfer to the Retired Reserve were proper and correct and there is no basis for granting the applicant's 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 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)                                         AR20110012540



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ABCMR Record of Proceedings (cont)                                         AR20110012540



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