IN THE CASE OF:	  

		BOARD DATE:  11 September 2012

		DOCKET NUMBER:  AR20110021707 


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:

The applicant defers to counsel. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of a previous application that the applicant's record be corrected to show he was medically retired or granted severance pay based on a physical disability.  The requested dates and alternatives are listed below:

* reflect he was retired for medical disability as of 9 January 1972 or an alternate date deemed appropriate by the Board
* in the alternative, on that date he was accorded separation based on medical disability with a percentage of disability of less than 30%
* show he was eligible for and should have been paid "back" retired pay in an amount to be determined by the Board
* in the alternative, that he was eligible for and should have been paid the "lump sum" stipend in an amount appropriate for the degree of disability, if found to have had a disability of less than 30%
* reflect he was retired for medical disability as of 14 January 1983 or an alternate date deemed appropriate by the Board
* in the alternative, on that date he was accorded separation based on medical disability with a percentage of disability of less than 30%
* show he was eligible for and should have been paid "back" retired pay in an amount to be determined by the Board
* in the alternative, that he was eligible for and should have been paid the "lump sum" stipend in an amount appropriate for the degree of disability, if found to have had a disability of less than 30%

2.  Counsel states:

* the applicant served with pride for almost 15 years in the U.S. Marine Corps (USMC), Regular Army (RA), and the U.S. Army Reserve (USAR)
* he received numerous awards and decorations including the Aviation Badge
* his physical condition while serving in the military was excellent until January 1972 when he was diagnosed as having aortic insufficiency
* this medical condition was severe enough to disqualify him from continuing to perform flight duties which in turn prompted him to separate from active duty in March 1973
* although there was clear evidence he had a significant medical condition which impacted his ability to perform his military duties, no effort was made to process him through the Army's Physical Disability Evaluation System (PDES) 
* in April 1973, he was granted 30% disability by the Veterans Administration (VA) for his heart condition
* shortly after receiving his VA disability rating, he was found to be medically unfit for retention in the USAR, yet no effort was made to process him through the PDES
* the applicant's service in the USAR ended with him being given a choice to accept a Reserve retirement or a discharge and neither choice was explained at the time
* he chose Reserve retirement because he believed it would result in receipt of retirement benefits at age 60
* the applicant's final separation in 1983 clearly establishes he suffered from a disabling condition that should have prompted his referral and processing through the PDES
* in November 2001, his VA disability rating was increased to 100% for his heart condition alone
* he had another VA evaluation in 2009 and he was found to have Type II Diabetes, presumed to be service-connected due to exposure to Agent Orange while serving in Vietnam

3.  Counsel provides a:

* Standard Form (SF) 513 (Clinical Record – Consultation Sheet)
* letter from the Disabled American Veterans (DAV), dated 10 August 1977


* VA Disability Rating, dated 24 August 1977

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 AR20100011382, on 2 November 2010.

2.  Counsel submits new evidence in the form of an SF 513 and a letter from the DAV which will be considered by the Board in the applicant's case. 

3.  The previous ABCMR Record of Proceedings found the applicant was properly afforded the option of discharge or transfer to the Retired Reserve based on being medically disqualified from further service in the active Reserve.  It further showed he was informed his medical disqualification would not qualify him to receive retired pay at age 60 unless he was otherwise entitled by law.

4.  After having had prior service in the U.S. Marine Corps Reserve, the applicant enlisted in the Regular Army on 6 June 1966, completed 23 weeks of training in the Infantry Officer Candidate School in 1968, and he was awarded specialty 1542 (Infantry Unit Commander).  He applied for Army Aviation Flight Training and he was given a medical examination for flight training on 28 May 1968.

5.  A DA Form 2496 (Disposition Form), subject:  Application for Army Aviation Training, dated 18 September 1968, shows he was physically qualified for Army Aviation Training on 23 September 1968.  A DA Form 66 (Officer Qualification Record) shows he was awarded specialty 1981 (Aviator) on 12 August 1969.

6.  Counsel provided an SF 513, dated 25 July 1972, that contains, in part, the following entries:

	a.  Reason for Request:  At the time, he was a 27 year old aviator and air traffic controller who did not meet standards because of aortic insufficiency noted on a routine physical.  The Surgeon General's Office (SGO) advised that a waiver would be considered if studies showed the murmur to be hemodynamically insignificant.  Consideration for cardiac catheterization and stress testing was requested.

	b.  Subjective:  The physician noted the applicant had a questionable history of rheumatic fever at the age of 4 to 5 years for which he was kept in bed for a long period of time and he was on restrictive physical activity for approximately


6 months, but he never had penicillin prophylaxis and never had recurrence of his rheumatic fever.  He was also told as a child that he had a mild murmur but he had not been told since then and he had passed all his flight physicals up until 1971.

	c.  Diagnosis:  Organic heart disease, origin unknown, manifested by aortic insufficiency, mild, asymptomatic, with a normal electrocardiogram (EKG) and a borderline chest x-ray, compensated on no medications.  Functional Therapeutic Class I-B.

	d.  Comment:  In light of the mildness of the patient's aortic insufficiency and his lack of symptomatology, it was not felt he was a candidate for cardiac catheterization at this time.  It was recommended placement on sub-acute bacterial endocarditis (SBE) prophylaxis for cause, restriction from strenuous physical activity, and follow-up examinations in a cardiology clinic at 3 to 6 month intervals.

7.  A DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 31 March 1973 shows the applicant was honorably released from active duty (REFRAD), by request, under the provisions of Army Regulation 635-100 (Personnel Separations – Officer Personnel), chapter 3, section XX (Voluntary REFRAD).  He was transferred to the USAR Control Group (Reinforcement) for completion of his Reserve service obligation.

8.  Letter Orders Number 06-307207, issued by the Office of the Adjutant General, U.S. Army Reserve Components Personnel and Administration Center (RCPAC), St. Louis, MO, dated 5 June 1974, shows he voluntarily requested reassignment from the USAR Control Group (Reinforcement) to the
306th Psychological Operations (PYSOPS) Battalion (Strategic) effective 6 April 1974.  His record also shows he was awarded an additional specialty of 9305 (Psychological Operations Officer), effective 3 January 1976.

9.  An SF 88 (Report of Medical Examination), dated 14 April 1977, shows he was given a quadrennial periodic examination and he was found to be physically qualified for retention by a medical review committee.  He was evaluated for his heart condition and he was noted to have aortic regurgitation and restricted from performing any prolonged marching or running if he became fatigued.

10.  He provided letters from the DAV and VA that show he was granted a service-connected disability rating of 10% for his heart condition on 1 April 1973, which was increased to 30% on 20 April 1977 based on an appeal.


11.  On 27 January 1980, the applicant requested reassignment to the USAR Control Group (Reinforcement).  As such, Orders 11-9, issued by Headquarters, 351st Civil Affairs Command, Mountain View, CA, dated 20 February 1980, reassigned him as requested, effective 31 January 1980.
 
12.  Orders 12-489892, issued by the Office of the Adjutant General, RCPAC, dated 24 December 1980, show he was authorized to perform inactive duty training without pay for the purpose of undergoing a quadrennial periodic examination as prescribed in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.  He was scheduled to report not later than 31 August 1981.  He was medically evaluated on 19 August 1981.  On 4 September 1981, the Physical Review Board, St. Louis, reviewed the results of his examination and determined he was qualified for retention.

13.  On 8 September 1982, he was given a Class II Flying examination for the purpose of returning to flying status.  He was noted to have aortic insufficiency since 1972, and he was found not qualified for worldwide duty.

14.  On 17 December 1982, an RCPAC memorandum, signed by the Surgeon, RCPAC, informed the applicant a review of his medical records revealed he did not meet medical standards for retention in the USAR and/or for entry on active duty.  It further informed him he was eligible for and had to elect either discharge or transfer to the Retired Reserve.  An election option memorandum was included for the applicant to complete and return by 18 January 1983.

15.  The applicant completed and signed the form that showed transfer to the Retired Reserve did not entitle him to pay, allowances, or other benefits unless he was otherwise entitled by law.  He elected transfer to the Retired Reserve.

16.  On 8 August 1983, Orders C-08-913036, issued by the Office of the Adjutant General, RCPAC, directed the applicant's transfer to the Retired Reserve effective 8 August 1983 by reason of medical disqualification for active duty.  Army Regulation 140-10 (Assignments, Attachments, Details and Transfers), paragraph 5-1 (Eligibility for transfer to the Retired Reserve) was the authority cited.

17.  The 100% VA disability rating he received in November 2001 is not available for the Board's review.

18.  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.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501, chapter 3.

	a.  Chapter 3 provides guidance on presumptions of fitness.  It states the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  Separation by reason of disability requires processing through the Army PDES.

	b.  Chapter 4 contains guidance on processing through the Army PDES, that includes the convening of a medical evaluation board (MEB) to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  If the MEB determines a Soldier does not meet retention standards, the case will be referred to a physical evaluation board (PEB).  The PEB evaluates all cases of physical disability equitably for the Soldier and the Army.  The PEB investigates the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board.  It also evaluates the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating.  Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability.

	c.  Chapter 8 contains the rules and policies for disability processing of Reserve Component (RC) Soldiers on active duty.  It states, in part, that an RC Soldier will be referred for medical processing through the Army PDES when a commander or other proper authority believes that Soldier is unable to perform the duties of his or her office, grade, rank, or rating because of physical disability.  It further stipulates that in order for Soldiers of the RC to be compensated for 
disabilities incurred while performing duty for 30 days or less, there must be a determination made by the PEB that the unfitting condition was the proximate result of performing duty.  Proximate result establishes a casual relationship between the disability and the required military duty. 

19.  Army Regulation 140-10 covers policy and procedures for assigning, attaching, removing, and transferring USAR Soldiers.  It states assignment to the Retired Reserve is authorized for Soldiers who request transfer and are medically disqualified, not as a result of own misconduct, for retention in an active status or entry on active duty regardless of the total years of service completed. 

20.  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 at less than 30 percent.

21.  Title 10, U.S. Code, chapter 61, Retirement or Separation for Physical Disability, provides for the retirement and discharge of members of the Armed Forces who incur a physical disability in the line of duty while serving on active or inactive duty.  However, the disability must have been the proximate result of performing military duty.

22.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.

	a.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The VA, which has neither the authority, nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability.

	b.  The VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  However, these changes do not call into question the application of the fitness standards and the disability ratings assigned by proper military medical authorities during the applicant's processing through the Army PDES.

DISCUSSION AND CONCLUSIONS:

1.  Counsel requests correction of the applicant's record to show he was medically retired or received disability severance pay on 9 January 1972 or 8 August 1983 and the supporting documentation he provided were carefully considered.

2.  The evidence confirms that in 1972, he was diagnosed with organic heart disease, origin unknown, manifested by aortic insufficiency, mild, asymptomatic, with a normal EKG and a borderline chest x-ray, compensated on no medications.  He was restricted from strenuous physical activities and he was recommended to be placed on SBE prophylaxis for cause, be restricted from strenuous physical activity, and have follow-up examinations in a cardiology clinic at 3 to 6 month intervals.  There is no evidence to show he did not meet the requirements for retention.

3.  His record further shows in 1974, he requested an assignment to the
306th PYSOPS Battalion and he continued to serve in AOC 9305.  He underwent a physical examination on 14 April 1977 and he was found to be physically qualified for retention by a medical review committee.  There is also no evidence that suggests he was disabled from an injury, illness, or disease incurred while he was serving in a duty or travel status while in the USAR.

4.  In 1981, he voluntarily requested transfer to the USAR Control Group (Reinforcement).  There is no evidence and he has not provided sufficient evidence to show he was not fit to perform the duties of his office while he was serving in an active status.

5.  On 8 September 1982, while still assigned to the USAR Control Group (Reinforcement) and not performing duties as a drilling Reservist, he was given a Class II Flying examination for the purpose of returning to flying status.  He was noted to have aortic insufficiency since 1972, and found not qualified for worldwide duty.

6.  There is no indication his medical condition was the proximate result of performing military duty or that it was further aggravated by active duty.  The
SF 318 counsel provided shows the applicant had a questionable history of rheumatic fever between the ages of 4 and 5 and was also told he had a mild heart murmur as a child.

7.  His record provides no indication that this condition rendered him unfit to perform his military duties or warranted him being processed through the Army PDES while serving in an active status.

8.  The award of a VA rating does not establish entitlement to medical retirement or separation.  The VA is not required to find unfitness for duty.  Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected.

9.  Furthermore, the VA can evaluate a veteran throughout his/her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.  In this case, the applicant is properly being evaluated, treated and compensated for his service-connected heart condition by the VA in accordance with the applicable laws and regulations. 

10.  In view of the foregoing, there is an insufficient evidentiary basis for granting him either a medical retirement or entitlement to disability severance pay.

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 AR20100011382, dated 2 November 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)                                         AR20110021707



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ABCMR Record of Proceedings (cont)                                         AR20110021707



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