BOARD DATE:	16 August 2012  

		DOCKET NUMBER:  AR20110021258 


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 hearing through the Physical Disability Evaluation System (PDES) in order to change his honorable discharge to a physical disability retirement or discharge.  

2.  He states that on 11 September 2001, after Congress declared a state of war and emergency, his Army National Guard (ARNG) unit was mobilized in support of the Global War on Terrorism.  He was unable to participate due to the illness he incurred, which later became aggravated in the line of duty.  

3.  He states he had a heart attack and as a result, his medical treatment and recovery has been an on-going process.  He started a claim with the Department of Veterans Affairs (VA) in 2005; however, in 2008 he had to restart the process because his paperwork was lost.  He also changed components from the ARNG to the U.S. Army Reserve (USAR) and requested medical evaluation several times in order to be processed through the PDES, but was given an honorable discharge instead.

4.  The applicant provides:

* his civilian medical records
* various orders
* a memorandum
* a Standard Form (SF) 600 (Chronological Record of Medical Care)



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.  After having prior service in the ARNG and then a break in service, he enlisted again in the ARNG on 6 August 1998.  He served in military occupational specialty (MOS) 11B (Infantryman).

3.  His record shows he was given a General Discharge, Under Honorable Conditions from the ARNG due to unsatisfactory participation and he enlisted in the USAR that same year.  His record does not contain any documentation to show he revealed his medical condition to the USAR at the time of his enlistment.

4.  The orders he provided from the U.S. Army Human Resources Command (AHRC) show the following:

* Orders C-01-501725, dated 28 January 2005, reassigned him from the USAR Control Group (Annual Training) to the USAR Control Group (Reinforcement) as his mandatory training requirement had ended
* Orders C-10-730131, dated 30 October 2007, released him from the USAR Control Group (Reinforcement) and reassigned him to a USAR Troop Program Unit (TPU) per his voluntary request

5.  A memorandum, dated 5 November 2009, subject:  Request for Non-duty Related Physical Evaluation for (applicant's name and social security number) addressed from his company commander through his chain of command, stated that he concurred with the applicant's request for a physical evaluation.  The applicant had provided the unit with supporting documents as evidence of physical abilities and receipt of state disability.  It was requested that the applicant be given a permanent profile followed by an MOS medical retention board (MMRB).  The commander also recommended that the applicant be discharged from the USAR. 
6.  An SF 600, dated 17 February 2010, shows the applicant was diagnosed with congestive heart failure and dilated cardiomyopathy which was noted to have an indefinite/permanent restriction on his ability to take any event or alternate event of the Army Physical Fitness Test (APFT).  This form does not show he was referred for further evaluation through the PDES nor do his records show he was issued a DA Form 3349 (Physical Profile) with a numerical designator of 3 or 4 in one of the profile factors for his medical conditions. 

7.  The applicant provided a copy of Headquarters, 63rd Regional Support Command, Orders 11-171-00046, dated 20 June 2011.  This order shows he was honorably discharged from the USAR under the provisions of Army Regulation 135-178 (Separation of Enlisted Personnel) with an effective date of 
5 August 2011.  The facts and circumstances leading up to his separation are not available for review. 

8.  He provided copies of his civilian medical record which shows diagnoses and treatments as follows:

	a.  On 2 October 2001, the doctor noted that the applicant supposedly had mild congestive heart failure for which he was given Lasix.  He was ruled out for myocardial infarction.  Upon examination, his chest was found to be clear and his cardiovascular range was S1 and S2 which was noted to be normal.

	b.  On 4 October 2001, he underwent a swan-ganz catheterization, left ventriculography, diagnostic coronary angiography and a right femoral artery angio-seal closure.  He was diagnosed as having dilated cardiomyopathy with low cardiac output and index and low ejection fraction.  No focal coronary artery disease was noted.  The doctor stated the applicant would best benefit with medical management. 

	c.  He was hospitalized on 5 October 2001 and was instructed not to return to work for at least two weeks. 

	d.  A visit on 14 October 2008 showed he had hypertension, hyperlipidemia , dilated cardiomyopathy, obstructive sleep apnea, congestive heart failure, and obesity.  The treatment plan included replacement of his CPAP machine, weight loss, a polysomnogram with titration and follow up visits 4 months later. 

	e.  On 10 June 2008 and 24 March 2011, he was seen by a physician for ongoing treatment for the same conditions. 

9.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, retention, and separation.  
	a.  Paragraph 3-21 (Heart) states the causes for referral to a Medical Evaluation Board (MEB) include but is not limited to cardiomyopathy, myocardial infarction, angina pectoris, or congestive heart failure due to fixed obstructive coronary artery disease or coronary artery spasm.  The policies for trial of duty, profiling, and referral to an MEB and a PEB are outlined in paragraph 3–25. 

	b.  Paragraph 3-25 states the results of the trial of duty will include the individual’s interim history, present condition, prognosis, and the final recommendations.  If the Soldier successfully completes the trial of duty, is considered a New York Heart Association Functional Class I, and there are no physical or assignment restrictions, the Soldier may be returned to duty without referral to an MEB.  If the Soldier has any physical restrictions after the trial of duty, he/she should be referred to an MEB.
   
   c.  Paragraph 9-10 (Disposition of medically unfit Reservist) states that normally, Reservists who do not meet the fitness standards set by chapter 3 will be transferred to the Retired Reserve only if eligible and if they apply for it or will be discharged from the USAR under the provisions of Army Regulation 135–178. 

   d.  Paragraph 9-12 (Request for Physical Evaluation Board (PEB)) states that Reserve Component (RC) Soldiers with non-duty related medical conditions who are pending separation for failing to meet the medical retention standards of chapter 3 of this regulation are eligible to request referral to a PEB for a determination of fitness.  Because these are cases of RC Soldiers with non-duty related medical conditions, MEBs are not required.  Once a Soldier requests in writing that his or her case be reviewed by a PEB for a fitness determination, the case will be forwarded to the PEB by the U.S. Army Reserve Command, Regional Support Command or the AHRC Command Surgeon’s office and will include the results of a medical evaluation that provides a clear description of the medical condition(s) that cause the Soldier to not meet medical retention standards.  

10.  Army Regulation 600-60 (Physical Performance Evaluation System), paragraph 2-6 (Issuance of permanent profile) states when issuing a permanent 3 or 4 profile, medical profiling officers should determine if the Soldier meets the medical retention standards of Army Regulation 40-501.  Evaluation against retention standards is especially important when the permanent 3 or 4 profile is accompanied by limitations that prevent the Soldier from taking the standard and all prescribed alternate versions of the APFT, wearing a protective mask, wearing the ballistic helmet (colloquially called the "Kevlar," for its Kevlar material), firing an individual weapon, or wearing load carrying equipment.  Such limitations may adversely affect the Soldier's eligibility for completion of schooling under the Noncommissioned Officer Education System (NCOES), which is necessary for promotion.  These restrictions also affect the ability of the command to deploy the Soldier and fully use the Soldier in his or her PMOS.  In accordance with Army Regulation 40-501, chapters 3 and 9, respectively, Soldiers who do not meet medical retention standards bypass the MMRB and are referred directly into the PDES or processed by the RC for medical disqualification. 

11.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army PDES and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  It provides for medical evaluation boards (MEB), which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  Chapter 8 provides the rules for processing Reserve Component (RC) Soldiers who are on active duty for a period of less than 30 days or on inactive duty training (IDT) through the disability system.

     a.  Public Law 99-661, Section 604 provides for disability processing of Soldiers who incur or aggravate an injury or disease in the line of duty while performing annual training, IDT or active duty training (ADT).  Referral for processing does not mean an automatic entitlement to disability compensation. Once referred, a determination must be made whether the disease was the proximate result of performing duty.  

     b.  In order for Soldiers of the RC to be compensated for disabilities incurred while performing duty for 30 days or less, to include IDT, there must be a determination by the PEB that the unfitting condition was the proximate result of performing duty.  This determination is different from a line of duty determination which establishes whether the Soldier was in a duty status at the time the disability was incurred and whether misconduct or gross negligence was involved.  Proximate result establishes a casual relationship between the disability and the required military duty.

12.  Army Regulation 135-178 (Separation of Enlisted Personnel) provides for the separation of enlisted personnel of the USAR and ARNG. 

     a.  Paragraph 4-7 covers discharge of Soldiers who do not meet the medical fitness standards.  It states that separation authorities are authorized to discharge Soldiers who are not medically qualified. 

     b.  Chapter 11 states, in part, that on expiration of term of enlistment, reenlistment, or period of statutorily obligated service, the Soldier will be discharged by the appropriate separation authority.  No Soldier may be held in service beyond the normal expiration of term of service unless expiration of term of service is extended by law.

     c.  Paragraph 12-1 (Medically unfit for retention) provides that separation will be accomplished by separation authorities when it has been determined that an enlisted Soldier is no longer qualified for retention by reason of medical unfitness unless the Soldier requests and is granted a waiver under Army Regulation 
40-501.

13.  Title 10 USC, section 12731b provides the special rule for members with physical disabilities not incurred in line of duty.  In the case of an RC Soldier who no longer meets the qualifications for membership in the Selected Reserve solely because the member is unfit because of physical disability, the Secretary concerned may, for purposes of section 12731 of this title, determine to treat the member as having met the service requirements of subsection (a)(2) of that section and provide the member with the notification required by subsection (d) of that section if the member has completed at least 15, and less than 20, years of service computed under section 12732 of this title.  

DISCUSSION AND CONCLUSIONS:

1.  His records show he was diagnosed with a heart condition in 2001 which rendered him ineligible for full mobilization in support of the GWOT.  As a result, he did not meet medical retention standards and should have been medically disqualified.  However, he continued to receive medical care for his condition throughout the remainder of his service in the USAR.  

2.  In 2009, his company commander requested a non-duty related physical evaluation of the applicant's medical conditions.  In February 2010, an indefinite/permanent restriction was placed on the applicant's ability to take any portion of the APFT or any alternate event due to congestive heart failure.  He was honorably discharged from the USAR under the provisions of Army Regulation 135-178 on 5 August 2011.

3.  The applicant had a disqualifying medical condition that was not duty related.  Although he contends his condition was aggravated by active service he provides no evidence of such.  The record shows his condition had existed for many years and is gradually worsening, which is the natural course of congestive heart failure.  

4.  As such, 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 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)                                         AR20110021258





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110021258



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1