IN THE CASE OF:	  

		BOARD DATE:	  15 August 2013

		DOCKET NUMBER:  AR20130001173 


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 correction of the records of her deceased husband, a former service member (FSM), to show he was medically discharged vice discharged for expiration of term of service in 1984.

2.  The applicant states the FSM had his first heart attack in the Army during combat training.  He also had two heart surgeries in the Army.  He was offered a medical discharge, but at the same time he was also discouraged from taking it because of his age and the impact on future job opportunities.  She has been fighting this issue with the Department of Veterans Affairs (VA) since his discharge.

3.  The applicant provides:

* VA Form 10-5345 (Request and Authorization to Release Medical Records or Health Information)
* VA Form 10-0137 (VA Advance Directive:  Living Will and Durable Power of Attorney for Health Care)
* FSM's death certificate
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 22 May 1971
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 23 May 1984
* miscellaneous Standard Forms 600 (Chronological Record of Medical Care)
* Standard Form 502 (Clinical Record – Narrative Summary)
* VA progress notes
* Internet printout related to vascular access steal syndrome
* Internet printout related to necrosis and sepsis
* list of medical contacts
* self-authored statement from applicant
* marriage license
* miscellaneous medical records, doctors' notes, nurses' charts, etc.
* list of current medications
* VA Form 21-0820 (Report of General Information)

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 FSM's records show he enlisted in the Regular Army for 3 years on 31 May 1968 and he held military occupational specialty (MOS) 71H (Personnel Specialist).  He served in Germany from 2 September 1970 to 1 May 1971.

3.  He was honorably released from active duty on 22 May 1971 as an early overseas returnee and he was transferred to the U.S. Army Reserve Control Group (Reinforcement) to complete his remaining service obligation.

4.  He again enlisted in the Regular Army for 3 years on 27 May 1975 and he held MOS 94B (Cook).  He was assigned to the 4th Battalion, 37th Armor, Fort Knox, KY.  He was honorably discharged on 23 May 1978 for the purpose of immediate reenlistment.

5.  On 18 April 1978 prior to his discharge, he submitted a DA Form 3072 (Waiver of Disqualification for Enlistment/Reenlistment in the Regular Army for In-Service Personnel) due to 2 days of lost time (unauthorized absence).  The DA Form 3072 listed his physical profile serial system factors as "1-1-1-1-2-1" (the 2 rating shows he had some limitation in his eyes, probably requiring vision corrective lenses) and his physical category code as "B" (B means no significant limitations).  His waiver request was approved.

6.  He reenlisted in the Regular Army on 24 May 1978.  He subsequently served in Alaska from 18 January 1978 to 15 December 1980.  During this period of enlistment, his records show:

	a.  He received a letter of commendation on 12 October 1979 for his superior operation and outstanding performance of duties in the Unit Dining Facility, Special Troops Battalion, Fort Greely, AK.

	b.  He received a letter of commendation on 27 November 1979 for his exemplary conduct and performance during the 172nd Infantry Brigade Softball Competition.

	c.  He received a letter of commendation on 1 May 1980 for outstanding performance of duties for the Headquarters Company Special Troops Family Night Dinner.

	d.  He was promoted to specialist five/E-5 on 8 March 1980 due to his demonstrated potential for professional competence and dedicated service.

	e.  He received an annual Enlisted Evaluation Report (EER) for the period January 1981 through December 1981.  The rating officials indicated he was proficient in the performance of his duties.  No physical profile or medical restrictions are listed.

	f.  He received an annual EER for the period January 1982 through December 1982.  The rater indicated the applicant "does have the technical skills for an E-5."  No physical profile or medical restrictions are listed.

	g.  He received an annual EER for the period January 1983 through December 1983.  One of his rating officials stated, "[Applicant] is technically proficient…."  No physical profile or medical restrictions are listed.

	h.  On 17 June 1983, he successfully completed the 4-week Primary Leadership Development Course.

	i.  He received an annual EER for the period January 1984 through May 1984.  The rater indicated the applicant "has the knowledge and capabilities…."  No physical profile or medical restrictions are listed.

7.  On 21 December 1983 after having been notified that he was pending reassignment to Korea and after being advised of his options, the FSM executed a Declination of Continued Service Statement (DCSS) wherein he indicated he did not want to serve in the Army any longer.

8.  He was honorably discharged from active duty on 23 May 1984 in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 4, by reason of expiration of term of service.

9.  His service medical records are not available for review with this case.  Similarly, his separation physical examination is also not available for review.  His service records do not contain evidence of:

* a permanent physical profile
* a DA Form 2173 (Statement of Medical Examination and Duty Status)
* a diagnosis of a disabling condition that rendered him unable to perform the duties required of his MOS or grade
* a medical examination that warranted his entry into the Army Physical Disability Evaluation System (PDES)

10.  The applicant submits the following documents in support of her request:

	a.  the FSM's death certificate, dated 29 October 2009, showing the causes of death as multi-organ failure, hypotension, and sepsis;

	b.  a Standard Form 600, dated 30 June 1981, showing the FSM was seen at Darnall Army Community Hospital, Fort Hood, TX, for a stabbing chest pain and numbness in his left arm;

	c.  a Standard Form 600, dated 8 April 1982, showing the FSM was seen at Darnall Army Community Hospital for a condition related to his heart;

	d.  a Standard Form 502, dated 25 June 1981, showing the FSM underwent catheterization on 15 June 1981 and he was noted to have a normal rest hemodynamic, abnormal exercise hemodynamic which increased left ventricular end diastolic pressure to 20, angiography had been aborted secondary to diet reaction manifested by hypotension, bronchial spasms, and coughing.  He was treated with medications and brought to the ward where he recovered well.  His diagnosis was chest pain, uncertain etiology, no evidence of atherosclerotic heart disease.  He was recommended not to prolong his standing or conduct lower/upper extremity physical activities;

	e.  a VA progress note printed on 2 January 2013 showing the FSM's previous surgical history included two stents in 1996, basal cell carcinoma in 1997, dual lumen dialysis catheter in 2006, left upper extremity AV fistula in 2007, and removal of the temporary dialysis catheter in 2007;

	f.  Internet printouts related to vascular access steal syndrome, necrotic, and sepsis;

	g.  a list of medical contacts;

	h.  a self-authored statement, dated 4 January 2013, wherein the applicant stated the FSM had been to many doctors since he left the Army, mainly for heart trouble, blood clots, and high blood pressure.  Over the years he had 11 heart catheterizations, 4 heart stents, and 7 to 8 heart attacks.  He had heart problems during his military service and the surgeon actually offered him a medical discharge but at the same time discouraged him due to his young age.  He ultimately got out of the Army due to his health.  He continued to have heart problems after discharge from the Army.  They then began a battle with the VA to secure his benefits.  This has been a challenging experience;

	i.  a second self-authored statement, dated 8 December 2012, stating that it had also been challenging to secure the FSM's medical records.  She adds that she is also experiencing difficulties with the VA between appeals, denials, letters, and delays;

	j.  a third self-authored letter, dated 6 November 2012, stating she is the widow and the VA denied her benefits and ignored her rights.  She states the FSM had what they thought was a heat stroke or heat exhaustion one day during training at Fort Hood.  They placed him in quarters, but they did not thoroughly examine him.  He suffered a heart attack after going out to the field and he was litter-carried from the field.  They found a heart blockage as well as an enlarged heart.  He was sent to Fort Sam Houston, TX, for surgery, the first of which failed.  They never put him on medications or blood thinners.  The doctors wanted to give him a medical discharge but discouraged him because he was only 32 years of age;

	k.  a DA Form 3647-1 (Inpatient Treatment Record Cover Sheet), dated 2 July 1981, showing a diagnosis of musculoskeletal chest pain and new right bundle branch block; and

	l.  a DA Form 3349 (Medical Profile – Physical Profile Record), dated 20 June 1984, showing he was medically qualified for duty with limitations.  He had a sprained right foot.
11.  Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability.  The U.S. Army Physical Disability Agency, under the operational control of the Commander, U.S. Army Human Resources Command, is responsible for administering the PDES and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).

	a.  The objectives of the system are to:

* maintain an effective and fit military organization with maximum use of available manpower
* provide benefits for eligible Soldiers whose military service is terminated because of a service-connected disability
* provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected

	b.  Soldiers are referred to the PDES:

* when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in a medical evaluation board (MEB)
* receive a permanent physical profile, P3 or P4, and are referred by an MOS Medical Retention Board
* are command-referred for a fitness-for-duty medical examination
* are referred by the Commander, U.S. Army Human Resources Command

	c.  The PDES assessment process involves two distinct stages:  the MEB and the physical evaluation board (PEB).  The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service.  A PEB is an administrative body possessing the authority to determine whether a service member is fit for duty.  A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition.  Service members who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired, depending on the severity of the disability and length of military service.  Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retirement payments and have access to all other benefits afforded to military retirees.

	d.  The mere presence of a medical impairment does not in and of itself justify a finding of unfitness.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating.  Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty.  A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating.

12.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the FSM should have received a medical discharge and that she is experiencing difficulties with the VA.  VA issues, including benefits, denial of benefits, and appeals are not within the purview of this Board.  The applicant should contact the VA regarding VA issues.

2.  With respect to the FSM's medical retirement:

	a.  The FSM successfully completed three periods of active duty:  28 May 1968 to 22 May 1971,  27 May 1975 to 23 May 1978, and 24 May 1978 to 23 May 1984.  In each case, he was fully qualified for enlistment or reenlistment. 
The only time he needed a waiver was in 1978 due to lost time (unauthorized absence).

	b.  Although the FSM may have experienced chest pain and had a heart attack, he was never found unfit for retention.  Nowhere in his records does it show he had a medically-unacceptable condition, or was issued a permanent physical profile, or was unable to perform the duties required of his former grade and military specialty.

	c.  On the contrary, his records contain multiple letters of commendation and at least four EER's that clearly show he was technically proficient and able to perform his specialty.  He may have been seen frequently in the hospital for chest pain, but he was never found unfit for retention.
	d.  Referral to the Army PDES requires determination of a designation of "unfit for duty" before an individual can be separated from the military because of an injury or medical condition.  Neither his service records nor the selected medical records the applicant submitted show he had an unfitting condition.

	e.  The FSM chose to terminate his service.  He was counseled and advised of his rights.  He elected to sign a DCCS and leave the Army.  He was accordingly discharged at the conclusion of his contractual commitment due to his expiration of term of service.

	f.  Whenever there is a disability, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating.  A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating.

3.  After a comprehensive review of the available records, there is insufficient evidence to support the applicant's contention that the FSM should have been medically discharged.  As such, she 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 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)                                         AR20130001173



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ABCMR Record of Proceedings (cont)                                         AR20130001173



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