IN THE CASE OF:	

		BOARD DATE:	  4 January 2013

		DOCKET NUMBER:  AR20120009966 


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 to be shown to be entitled to a medical retirement.

2.  The applicant states:

* he is diagnosed as having diabetes and arteriosclerosis which had their onset while on active duty
* while on active duty he had to exercise daily to control his diabetes
* he was denied a medical examination at the time of his separation despite having abnormal glucose, cholesterol, and triglyceride levels
* the Army did not keep proper records of either his enlisted or officer service
* the reason for his failure to be promoted was racial 
* personnel not selected for promotion are kept in the dark and not informed as to why they were not selected

3.  The applicant provides copies of:

* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* 6 July 1993 USAR discharge orders
* a 12 May 2004 Chronological Statement of Retirement Points (RPAS)
* a September 1989 Leave and Earnings Statement
* a 21 July 1988 Health Questionnaire showing a blood pressure of 105/78
* a 24 May 1990 acknowledgement of pending separation 
* a 24 May 1990 Hanau Army Health Clinic memorandum
* a 15 May 1990 blood chemistry report
* an page one of an incomplete Report of Medical Examination
* an undated blood chemistry record showing normal levels
* 15 pages of Department of Veterans Affairs (VA) medical records
* a self-authored statement of his perceived injustices in the Army promotion system and a lack of his notification of potential life-threatening medical conditions at the time of his release 

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's service medical and dental records are believed to be on permanent loan to the VA and are not available for review.  The medical information referenced is from copies of documents provided by the applicant.  

3.  The applicant served on active duty in an enlisted status from 11 October 1972 through 30 January 1982.  He had a complete break in service and then enrolled in the Reserve Officers’ Training Corps (ROTC) on 8 November 1982. Upon completion of his ROTC training, on 18 December 1984, he was commissioned a U.S. Army Reserve (USAR) second lieutenant.  

4.  The available records contain no information related to his service between his date of commissioning and his being ordered to active duty effective 31 May 1987.

5.  On 17 August 1988, the applicant requested voluntary early release under the provisions of the Fiscal Year (FY) 1988 Voluntary Early Release/Retirement Program.  His request was denied.

6.  A 15 May 1990 blood chemistry report shows normal glucose levels with cholesterol and triglycerides levels significantly above the normal range.

7.  On 24 May 1990, the applicant acknowledged his pending release from active duty due to nonselection by the Conditional Voluntary Indefinite Board.  He was given a release date of 15 September 1990.  The applicant initialed the block indicating he did not desire to retain his commission.

8.  A 24 May 1990 memorandum from the Army Health Clinic, Hanau, Germany states it was determined that a medical examination was required; however, there was insufficient time to complete the examination before he transferred and the service member could request a physical at the separation point in the continental United States.

9.  On 30 May 1990, the applicant was released from active duty under the FY 1988 Voluntary Early Release/Retirement Program and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement).  He had 3 years of active duty commissioned service during this period and a total of 12 years, 3 months, and 20 days of active duty service.  

10.  The applicant was discharged from the USAR on 3 November 1993.  His RPAS shows only membership points earned during this period.

11.  The post-service medical records provided date from 2006.  A 20 April 2006 Springhill Medical Center Documents Review Report history notes the applicant was first diagnosed with diabetes in November 1997 and placed on insulin at that time.

12.  The applicant was hospitalized for chest pain in 2006.  The discharge diagnoses were coronary artery disease, diabetes, hypertension, and electrolyte imbalance.  This is the earliest diagnosis of these conditions available.  The later medical records show continued treatment for coronary artery disease, diabetes, and hypertension.

13.  Taber's Cyclopedic Medical Dictionary provides the following:

	a.  Arteriosclerosis as the term applied to a number of pathological conditions in which thickening, hardening, and loss of elasticity of the arterial walls result in impaired blood circulation.  While the cause is unknown it develops with aging and in persons with hypertension, diabetes, hyperlipidemia, and other conditions. 

	b.  Coronary heart disease (also called coronary artery disease) is a narrowing of the small blood vessels that supply blood and oxygen to the heart, caused by the buildup of plaque in the arteries of the heart.  

	c.  Some risk factors for both conditions include hypertension, obesity, stress, increased blood lipids particularly high cholesterol and triglycerides, and tobacco use. 
14.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rated at less than 30 percent.

15.  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.  The VA is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

16.  Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, they must be unable to perform the duties of their office, grade, rank or rating.

17.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 2-2b provides that when a member is being separated by reason other than physical disability, their continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that they were unable to perform their 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.  Paragraph 3-2a(5)b(1) provides that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and he can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant was not afforded a separation examination prior to his departure from Germany due to there being insufficient time to schedule a physical examination. He was advised that he could request a physical examination at the separation point.  There is no evidence that the applicant requested a separation examination.

2.  While the applicant clearly had elevated cholesterol and triglycerides at the time of his release from active duty there is no evidence that these conditions impaired his ability to perform his duties.  
3.  Elevated cholesterol and triglycerides, while risk factors for development of arteriosclerosis and/or coronary artery disease, are only risk factors and not findings of either of these conditions, which would not warrant referral to a physical disability evaluation.  

4.  The applicant's glucose levels were normal at the time of separation and his post-service records show he was not diagnosed with diabetes until 7 years after separation.  The dates of his initial diagnosis of coronary artery disease and hypertension are not of record.

5.  Physical disability separation pay or retirement compensates the individual for loss of their career.  The applicant's service was not interrupted because of a physical disability incurred or aggravated in service but rather due to nonselection by the Conditional Voluntary Indefinite Board.

6.  The record does not contain and the applicant has not provided any evidence that there was any racial motivation in either his enlisted or officer career path or in his nonselection by the Conditional Voluntary Indefinite Board. 

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)                                         AR20120009966





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ABCMR Record of Proceedings (cont)                                         AR20120009966



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