IN THE CASE OF:	  

		BOARD DATE:	  16 December 2014

		DOCKET NUMBER:  AR20140006120 


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, the widow of a deceased former service member (FSM), requests reconsideration of her previous request to correct the FSM's records to show he was medically discharged vice discharged for expiration of term of service in 1984.

2.  The applicant reiterated the statements she made in the previous Record of Proceedings (ROP) by stating "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."  

3.  The applicant provides:

	a.  the following previously considered evidence:

* 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 
* Standard Forms (SF) 600 (Chronological Record of Medical Care) dated 30 June 1981 and 8 April 1982 
* SF 502 (Clinical Record – Narrative Summary), dated 25 June 1981
* list of medical contacts 

* SF 558 (Medical Record-Emergency Care and Treatment), dated 
30 May (unknown year) 
* SF 509 (Medical Record-Progress Notes), dated 2 July 1981 
* DA Form 3647 (Inpatient Treatment Record Cover Sheet), dated 2 July 1981 
* Department of Veterans Affairs (VA) progress notes (pages 6-7), dated 
24 July 2008 (printed on 2 January 2013)
* VA surgical information (pages 11-12), dated 20 August 2008 (printed on 2 January 2013)

	b.  the following new evidence:

* SF 500 (Clinical Record-Nursing Notes), dated 2 July 1981
* letter from the Wichita Surgical Specialists, dated 30 November 2009
* 4 pages of various statements from the applicant
* 10 photographs with captions

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 AR20130001173, on 15 August 2013.

2.  The applicant provides evidence which was not previously considered by the Board.  Therefore, it is considered new evidence and warrants consideration by the Board. 

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

4.  He was honorably released from active duty on 22 May 1971 and transferred to the U.S. Army Reserve Control Group (Reinforcement) to complete his remaining service obligation.

5.  He enlisted in the Regular Army on 27 May 1975 and 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.

6.  The FSM's record contains a DA Form 3072 (Waiver of Disqualification for Enlistment/Reenlistment in the Regular Army for In-Service Personnel), dated 18 April 1978 which 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).  

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

* three commendation letters for his duty performance, dated 12 October 1979, 27 November 1979, and 1 May 1980
* a promotion to specialist five/E-5 on 8 March 1980
* four Enlisted Evaluation Report (EER) spanning the period from January 1981 to May 1984 and showing he was proficient in the performance of his duties and had no physical profile or medical restrictions listed
* he successfully completed Primary Leadership Development Course (PLDC) on 17 June 1983

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

9.  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.

10.  The FSM's record did not contain and the applicant did not provide:

* the FSM's separation physical examination 
* 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)

11.  The applicant submitted the following documents in support of her request (some of which were previously considered):

	a.  an SF 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;

	b.  an SF 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 DA Form 3647-1 (Inpatient Treatment Record Cover Sheet), an 
SF 500, and an SF 509 dated 2 July 1981, showing a diagnosis of musculoskeletal chest pain and new right bundle branch block.  The FSM underwent another catheterization and he was noted to have normal coronary arteries and ventricles.  His doctor indicated that no further significant medical treatment was needed at that time.  The FSM was given instructions on wound care for the catheter site and released home with no limitations;

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

	e.  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;

	f.  Progress Notes, dictated on 22 July 2008, showing he was seen for a non-healing wound on the tip of his left ring finger which had been present since December 2007.  The FSM's physician believed he would benefit from a partial finger amputation.  Additionally, the FSM had end-stage renal disease/failure (on dialysis), secondary to myocardial infarction.  These notes also show 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;

	g.  Surgical Information, dictated on 20 August 2008, showing the FSM had a portion of his left ring finger amputated;

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

	i.  a letter written by the FSM's doctor/surgeon, Dr. WLF, on 30 November 2009.  The letter conveys Dr. WLF's sympathy and condolences to the applicant due to the death of the FSM.  Dr. WLF also indicates that the applicant should not be hard on herself or second guess the decision that the FSM should forgo surgery.  Dr. WLF further stated that if the FSM had the surgery he would most likely have died during the surgical procedure or shortly thereafter and, therefore, she should be comforted that she and the FSM made the correct decision;

	j.  a list of medical contacts; and

	k.  four undated self-authored statements wherein she reiterated much of what she stated in the self-authored statements she submitted in her initial request.  In summary, she stated the FSM had heart problems during his military service.  Military doctors found he had a heart blockage as well as an enlarged heart.  He was sent to Fort Sam Houston, TX, for surgery, the first of which failed and led to infection.  His military medical records show the Army never put him on medications or blood thinners, he was only ever on temporary antibiotics.  His doctors/surgeon actually offered him a medical discharge but at the same time discouraged him due to his young age of 32.  He ultimately got out of the Army due to his health.  He continued to have heart problems after discharge from the Army.

		(1)  She also referenced the amputation of his finger and stated this occurred due to a failed fistula that was placed in his arm for dialysis because of the kidney disease he developed as a result of his heart condition.  This heart condition was first discovered and treated in the Army at Fort Hood and Fort Sam Houston, TX.

		(2)  She further stated the civilian doctor/surgeon who wrote the sympathy letter she provided talked her and the FSM out of having a surgery he needed by stating his chances of survival on the operating table were only about 20 percent and that without the surgery and with increased medication he could live for another three years.  However, the FSM died the following month.

	l.  The applicant submitted several photos with captions depicting:

* the FSM standing in front of a Military Police vehicle in Wiesbaden, Germany in 1970
* the FSM in his cook uniform in April 1976
* the FSM at a battalion picnic in Fort Knox, KY in June 1978
* the FSM on his last duty day in May 1984
* the FSM on his last family outing in 2009
* the FSM in the hospital 2 days before his death
* the FSM and applicant together at the hospital 5 minutes after his death
* the FSM's cremated remains, photograph, and medals
* the FSM's funeral flowers with flags 
* the location of his interred remains and his youngest son posing before them with the FSM's service dog

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the FSM should have received a medical discharge because his heart condition was first discovered while he was serving in the Army.

2.  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 and, therefore, was considered to be physically qualified for reenlistment.

3.  The evidence of record shows the FSM was seen in the hospital for chest pain.  However, the evidence does not show he was found unfit for retention, that he had a medically-unacceptable condition, that he was issued a permanent physical profile, or that he was unable to perform the duties required of his grade and MOS.

4.  The first step towards a medical discharge or retirement is the referral to the Army PDES.  After the referral is made a Soldier's records go before an MEB/PEB.  The PEB determines whether or not the Soldier in question is "unfit for duty."  A Soldier can only be separated from the military because of an injury or medical condition after an "unfit for duty" determination has been made by the PEB.  However, the FSM's records do not show he had an unfitting condition and was never unfit to perform his duties.

5.  The FSM chose to terminate his service rather than accept an assignment to Korea.  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.

6.  Based on the foregoing, there is insufficient evidence to grant 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 to amend the decision of the ABCMR set forth in Docket Number AR20130001173, dated 15 August 2013.



      _______ _  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)                                         AR20140006120





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ABCMR Record of Proceedings (cont)                                         AR20140006120



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