IN THE CASE OF:	  

		BOARD DATE:	    12 September 2013

		DOCKET NUMBER:  AR20130001920 


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, in effect:

* Correction of his medical records to show he suffered from two heat strokes and he did not receive proper medical treatment for the heat strokes 
* Award of a 50% (percent) service-connected disability rating
* Medical retirement retroactive to his discharge date of 31 July 1981

2.  The applicant states due to the gross negligence on the part of the noncommissioned officers and commissioned officers executing and supervising the training at the Florida Ranger Camp in July - August 1975 (Ranger Training Class 10-75) he was not appropriately treated for two life-threatening events of heat stroke.  This negligence resulted in a lifetime of reduced mental capacity and personality disorders.  

	a.  The cadre at the Ranger Training Camp failed to ensure he received appropriate treatment for the incidents of heat stroke as directed in Field Manual (FM) 21-11 (First Aid for Soldiers), paragraph 40b(3), pages 97-98, issued in May 1970.  He was not transported to a medical facility after his incidents of heat stroke.  Instead, the cadre at the Ranger Training Camp ordered him to continue training on both occasions.  Due to the mind-altering nature of heat stroke, he was not aware of the heat stroke incidents in 1975.  He was only aware that something was wrong with his mind when he returned to college to finish his fourth year.  
	b.  He found his Ranger Buddy Jxxx Sxxxxxx on a professional networking internet site in May 2012 and decided to call him.  During this phone call his friend informed him that he had suffered from two heat strokes during Ranger Training and agreed to send him a witness statement.  This was the first time he had spoken to his friend since August 1975.  He then found Lieutenant Colonel (LTC) retired (R) Lxxxxx.  In LTC (R) Lxxxxx's witness statement he clearly stated that the symptoms of his change in personality were evident immediately following Ranger School when they returned to college at Jacksonville State University.

3.  The applicant provides:

* An excerpt from FM 21-11, dated May 1970
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Orders Number D-01-706615, dated 28 January 1997
* Two witness statements

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 U.S. Army Reserve (USAR) on 31 August 1973 as a Reserve Officers' Training Corps Cadet.  His record indicates that he participated in numerous training events to include Ranger School/Training.

3.  His record contains numerous Standard Forms (SF) 93 (Report of Medical History), SFs 88 (Report of Medical Examination), a personal statement reference his medical fitness, a DA Form 1051 (Report of Injury), and several SFs 600 (Chronological Record of Medical Care) dated from 12 April 1973 to 2 June 1984.  None of these forms indicate that he was treated for or reported as having an incident of heat stroke.  
4.  His record contains a DA Form 71 (Oath of Office - Military Personnel) which shows he was appointed as a Reserve commissioned officer on 23 April 1976.  He entered active duty on 27 April 1976.

5.  He was honorably discharged from active duty on 31 July 1981 by reason of an unqualified resignation.  His DD Form 214 shows he completed 5 years, 
3 months, and 5 days of net active service.

6.  He provided an excerpt from FM 21-1, issued in May 1970, wherein it states in paragraph 40b(3) that prolonged exposure to high temperatures may cause heat stroke, which is sometimes referred to as "sunstroke."  The first signs of heat stroke may be the stoppage of sweating which causes the skin to feel hot and dry.  Collapse and unconsciousness may come suddenly or may be preceded by headache, dizziness, fast pulse, nausea, vomiting, and mental confusion.  It is necessary to work fast to save the life of a heatstroke casualty, as the heat regulators in the body have been damaged and the temperature may rise as high as 108 degrees Fahrenheit.  The following first aid measures should be administered promptly:

	a.  Immerse the casualty in the coldest water available.  If ice is available add it to the water.

	b.  If a cold water bath is not possible, get the casualty into the shade, remove his clothing, and keep the entire body wet by pouring water over him.  Cool him further by continuously fanning his wet body.

	c.  Transport him to the nearest medical facility at once and continue to cool his body on the way.

	d.  When the casualty becomes conscious give him cool salt water to drink.

7.  He provided a witness statement from Jxxx Sxxxxxx, dated 31 May 2012, and a witness statement from LTC (R) Lxxxxx, dated 6 June 2012, which indicate:

	a.  Jxxx Sxxxxxx stated that he was a member of Ranger Class 10-75 along with the applicant.  He and the applicant were assigned as "Ranger buddies" at the beginning of the program and they were together nearly the entire program.  In 1975, the Ranger Program was separated into three phases.  The first phase was at Fort Benning, GA, the second phase was in the mountains of north Georgia, and the third and final phase was the "jungle phase" in Florida.  Ranger Class 10-75 was from June - August 1975.

	b.  LTC (R) Lxxxxx stated that he was a member of Ranger Class 10-75 along with the applicant.  He and the applicant were classmates at Jacksonville State University prior to Ranger School.  Additionally, they were neighbors at college.  For these reasons he was very familiar with the applicant before and after Ranger School.  He was with the applicant during the entire Ranger School training and they talked on a regular basis.  Their Ranger School dates were in the hottest times and they had record-breaking heat while attending the course.  The applicant is a large man and the heat seemed to affect him worse than LTC (R) Lxxxxx.  

	c.  Jxxx Sxxxxxx  and LTC (R) Lxxxxx both stated, verbatim, that during the jungle phase of the training, they witnessed the applicant lose consciousness on one occasion while they were on a 10-day patrol.  They were told by their instructors to treat the applicant for heatstroke.  This entailed propping him up against a tree and trying to cool him off with wet rags.  They forced the applicant to drink water from their canteens after he came back to consciousness.  As soon as the applicant was able to stand the patrol pushed on.  Also during the jungle phase, their Ranger Training Company was put through a prisoner of war (POW) camp exercise for survival, evasion, resistance, and escape (SERE) training.  The applicant passed out again due to heat stroke or exhaustion.  It appeared he was sick, vomiting, or suffering from heat stroke.  LTC (R) Lxxxxx does not remember how long the applicant was on the ground but he remained drowsy for several minutes.  

	d.  LTC (R) Lxxxxx  stated that once they returned to college it was evident the heat problems that the applicant had experienced in Ranger School had affected his personality.  His temper and patience seemed to be much shorter than prior to the two heat collapses he experienced in Ranger School.  LTC (R) Lxxxxx has not seen the applicant since they graduated from college in 1976.

8.  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 HRC, is responsible for administering the U.S. Army Physical Disability Evaluation System (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.  Soldiers are referred to the PDES when they no longer meet medical retention standards in accordance with Army Regulation 40-501, chapter 3, as evidenced in a Medical Evaluation Board (MEB), receive a permanent physical profile rating of P3 or P4 and are referred by a Military Occupational Specialty Medical Retention Board; are command-referred for a fitness-for-duty medical examination; or are referred by the Commander, HRC.

	b.  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.

	c.  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 on disability receive monthly military retirement pay and have access to all other benefits afforded to military retirees.

9.  Army Regulation 635-40 establishes the PDES.  It 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 or her office, grade, rank, or rating.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.

	a.  Paragraph 3-1 (Standards of unfitness because of physical disability) provides that 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 their office, grade, rank, or rating.

	b.  Paragraph 3-2 (Presumptions), subparagraph b, provides that when a Soldier is being separated or retired for reasons other than physical disability, continued performance of assigned duty commensurate with his rank or grade until the Soldier is scheduled for separation, creates a presumption that the Soldier is fit.  The presumption of fitness can be overcome if the evidence 
establishes 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.

10.  Title 10, U.S. Code (USC), 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%.  Title 10, USC, 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.  With regard to the applicant's request that his medical records be corrected to show he suffered from two incidents of heat stroke during Ranger Training and was not properly treated in accordance with FM 21-11:

	a.  His record does not contain evidence of a heat stroke and he never mentioned passing out or being ill during Ranger Training in any of his medical screenings.  

	b.  Additionally, witness statements, from non-medical personnel, for an incident that occurred approximately 38 years ago is not considered sufficient evidence or proof to justify amending his records to show he suffered from two instances of heat stroke, or that he did not receive the proper medical treatment.

	c.  Based on the foregoing, there is insufficient evidence to justify correcting his medical records to show he suffered from two heat strokes and did not receive the proper medical treatment.

2.  With regard to his request that he receive a medical retirement with a 50% service connected disability rating retroactive to his date of discharge on 31 July 1981:

	a.  Medical retirement from military service requires the service member to enter the PDES and undergo an MEB and then a PEB.  The PEB must issue a designation of "unfit for duty" before an individual can be discharged from the military because of an injury or medical condition.  Additionally, in order to receive a physical disability retirement the PEB must have granted them a disability rating of at least 30%.  

	b.  There is no evidence in his service records and he provides insufficient evidence to show that at the time of his discharge from active duty that medical authorities found him physically unfit to perform the duties required of his grade and military specialty.  His DD Form 214 shows he was honorably discharged by reason of unqualified resignation, not by reasons of physical disability.  


   c.  In view of the foregoing, there is an insufficient evidentiary 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 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)                                         AR20130001920



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ABCMR Record of Proceedings (cont)                                         AR20130001920



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