IN THE CASE OF:	  

		BOARD DATE:	  14 January 2015

		DOCKET NUMBER:  AR20140006008 


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, a medical retirement.

2.  The applicant states:

* he should have been considered by a medical evaluation board (MEB) within 90 days of his surgery and based upon having a permanent physical profile rating of 3 (P3)
* he chose voluntary separation from the California Army National Guard (CAARNG) because he had a stent inserted into his left artery for heart disease on 31 May 2011
* the CAARNG stated he should have been able to conduct all necessary training despite his medical condition and his P3 physical profile classification, but he disagreed

3.  The applicant provides:

* extracts of his Official Military Personnel File (OMPF)
* extracts of medical records
* email correspondence
* letter from the Department of Veterans Affairs (VA), dated 8 April 2013
* Congressional correspondence



CONSIDERATION OF EVIDENCE:

1.  Having had prior service in the ARNG, the applicant enlisted in the CAARNG on 22 October 2000.

2.  On 16 October 2004, he was ordered to full-time National Guard duty (FTNGD).

3.  On 30 October 2008, the CAARNG issued his Notification of Eligibility for Retired Pay at Age 60 (20-year letter).

4.  Medical records provided by the applicant show he was admitted to the Kaweah Delta Medical Center on 31 May 2011 for coronary artery angioplasty and stenting of his heart.  He was discharged from the medical center on 1 June 2011 and advised to limit his activity for 7 days and to follow-up with his provider in 1 week.  His limitations included no aerobics, swimming, jogging, running, bicycling, dancing, rowing, and housework.  He was further restricted from driving, lifting 5 to 10 pounds, and stair-stepping for 7 days.

5.  On 9 June 2011, the applicant's cardiologist issued instructions authorizing him to return to work on 13 June 2011.

6.  On 8 July 2011, the applicant was issued a DA Form 3349 (Physical Profile) assigning him a temporary physical profile rating of 3 (T3) under the lower extremities (L) factor with functional limitations and capabilities consisting of no bending at the waist, climbing, crawling, kneeling or crouching, pushing or pulling, lifting or carrying more than 15 pounds, swimming or diving, wearing load-bearing equipment, running, or physical exertion during heat category 4 or 5.  He was assigned a physical profile rating of 1 for the five other functional factors.

7.  On 14 July 2011, the applicant's cardiologist issued instructions stating:  "no work till (Applicant) is further evaluated by Army Surgeon."

8.  Email correspondence provided by the applicant shows he provided a copy of the 14 July 2011 cardiologist's instructions to his battalion medic on 14 July 2011.

9.  On 28 July 2011, the applicant was issued a physical profile rating of T3 under the physical capacity or stamina (P) factor with functional limitations and capabilities consisting of no bending at the waist, climbing, crawling, kneeling or crouching, pushing or pulling, lifting or carrying more than 15 pounds, swimming or diving, wearing load-bearing equipment, lifting/lowering/carrying, pushing/pulling, running, swimming/diving, or physical exertion during heat category 4 or 5.  He was assigned a physical profile rating of 1 for the five other functional factors.

10.  On 30 July 2011, the CAARNG State Surgeon's Office Case Manager advised the applicant that more information was required specifically regarding the following medical issues:

* cardiac – clearance from his cardiologist was required prior to the applicant resuming fitness activities and clarification of his current medication regimen
* back pain – a follow-up evaluation from the orthopedic clinic, clearance from his cardiologist to perform physical therapy and continue with a prescribed treatment plan, and updated cholesterol laboratory results

11.  On 14 September 2011, the applicant was advised that his temporary physical profile would be modified to include the statement:  "Needs clearance from cardiology to return to military duties.  Had heart procedure performed 31 May 2011."  His previous temporary physical profile, dated 8 July 2011, was updated on 28 July 2011 to include this statement.  Further, he was assigned a T3 rating under the P factor.  He was assigned a physical profile rating of 1 for the five other functional factors.

12.  On 13 October 2011, the applicant sent an email to the CAARNG State Surgeon's Office Case Manager indicating his cardiologist again stated he would not release him to work until he was seen by an Army Surgeon.

13.  On 14 October 2011, the applicant was notified that his records were scheduled for review by an Enlisted Qualitative Retention Board (EQRB) scheduled to convene 13 through 25 February 2012.  On the same date, the applicant acknowledged notification of the EQRB and he elected to be transferred to the Retired Reserve in the event that he was not selected for retention.

14.  On 4 November 2011, the CAARNG State Surgeon's Office Case Manager emailed the applicant an updated physical profile, dated 3 November 2011, assigning him a T3 rating under the P factor.  He was assigned a physical profile rating of 1 for the five other functional factors.  The email further stated medical officers reviewed his file and requested the following information:  post-operative follow-up office visit notes, diagnostic test results since May 2011 from his cardiologist, updated comments on his physical limitations after the procedure, and a comment on his current New York Heart Association classification.

15.  On 8 November 2011, the applicant was notified that the CAARNG State Surgeon had completed a medical determination on him for cardiology.  He was advised that he had been given a temporary physical profile by the State Surgeon not to exceed 1 February 2012 and that he would remain medically non-deployable until current medical documentation was submitted not later than 18 January 2012 for re-evaluation and final medical determination.

16.  On 14 November 2011, the applicant's commander submitted a request through his chain of command to the EQRB requesting revalidation of the applicant's 2-year retention status.  In his request, he recommended the applicant's medical discharge since his medical condition involved his heart and he was undergoing treatment with a cardiologist.  He further stated he believed the applicant's condition may become fatal in a field environment and, as commander, he did not want that responsibility.

17.  On 3 January 2012, the applicant provided the CAARNG State Surgeon's Office Case Manager with additional medical documentation showing he was being referred to cardiology for evaluation of coronary artery disease and that his medications had changed.

18.  On 9 January 2012, the applicant was counseled on his medical status.  He was directed to make an appointment with doctors at Fort Irwin, CA.

19.  On 12 January 2012, the applicant's cardiologist issued instructions stating:  "Consider discharge from military."

20.  On 19 January 2012, the applicant was evaluated for coronary artery disease by the Naval Medical Center, San Diego, CA.  His evaluation shows, in part, he was released without limitations and found fit for duty consisting of a trial of duty with the following provisions, in part:

* he should remain on aspirin and Plavix (clopidogrel) therapy for a minimum of 12 months (until 1 June 2012) and should continue if tolerated and not detrimental to his career based on the recommendations of his civilian cardiologist
* medication changes were suggested with a routine visit to his cardiologist to discuss the changes

21.  On 20 January 2012, the applicant provided a copy of his evaluation from the San Diego Naval Medical Center to the CAARNG State Surgeon's Office Case Manager.  He also indicated he disagreed and questioned some of the notes in the evaluation.

22.  On 24 January 2012, the CAARNG State Surgeon's Office issued the applicant an updated physical profile rating of T3 under the P factor.  The applicant was notified that his 180-day trial period began on 19 January 2012.  He was assigned a physical profile rating of 1 for the five other functional factors.  His temporary physical profile also shows, in part:

	a.  A "No" response was marked for "Live in an austere environment without worsening the medical condition?"

	b.  He was cleared for the 2-mile run, sit-ups, and push-ups in the Army Physical Fitness Test.

	c.  Service member does not have symptoms of chest pain on exertion and has been cleared for a trial of duty by cardiologist.

	d.  Soldier underwent percutaneous revascularization/angioplasty and is allowed a 180-day trial of duty period following clearance by cardiology on 19 January 2012 in accordance with Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-24g.

	e.  All patients must submit results of follow-up evaluation by attending cardiologist not later than 30 days after the end of the trial-of-duty period.

	f.  Permanent profiling action will be initiated, if indicated, based on review of follow-up evaluation and recommended limitations on duty, if any, in accordance with Army Regulation 40-501, paragraph 3-25.

	g.  Soldier will require extension of this physical profile to allow a full 180-day trial of duty.

	h.  Follow-up evaluation to be completed within 30 days following end of trial-of-duty period.

23.  On 25 January 2012, the applicant sent an email to the CAARNG State Surgeon's Office stating he disagreed with the final notes from the Navy cardiologist.  He further stated he had chronic fatigue and many other symptoms from the amount of medications he had to take.  His symptoms prevented him from doing his job and the medications were very harsh when combined.  He further addressed his medication concerns and differences by the treating cardiologists.  Lastly, he stated he did not wish to put his life in the hands of the Navy cardiologist and desired to argue his physical profile with a higher authority if possible.

24.  On 15 March 2012, the applicant was notified that:

* the EQRB recommended his retention
* the State Adjutant General approved the recommendation of the board and retained the applicant for 1 year

25.  On 3 April 2012, the applicant submitted a request for voluntary early release from his FTNGD tour.  He stated his request was due to personal health reasons that required immediate attention.

26.  A Standard Form 600 (Chronological Record of Medical Care), dated 12 April 2012, shows the applicant was seen for high cholesterol.  He was advised to restart his medications for cholesterol.  He was released without limitations.  This document also shows the applicant was in the middle of his retirement process with a planned retirement date in August 2012.

27.  A Physical Examination Notification, dated 23 April 2012, shows the applicant was found physically fit for retirement.

28.  On 25 August 2012, the applicant was released from FTNGD and reassigned to his CAARNG unit.

29.  On 1 September 2012, the applicant was honorably discharged from the ARNG and transferred to the Retired Reserve.

30.  The applicant provided a letter from the VA, dated 8 April 2013, advising him of the status of his application for compensation.

31.  The applicant also provided a Congressional response from the Chief, Office of State Policy and Liaison, dated 10 April 2013, that shows, in part:

	a.  During the applicant's evaluation period, he was issued four temporary physical profiles with the last one being his trial-of-duty profile.

	b.  His trial-of-duty profile was scheduled to end in July 2012; however, he failed to submit his follow-up evaluation and remained medically flagged.  Upon submitting an inquiry to his brigade, the Medical Services Branch was notified that he had decided to retire.  Based on that information, the Medical Services Branch removed his medical flag restriction to allow for processing his retirement orders.  On 2 October 2012, the Medical Services Branch was notified that the applicant did not retire; therefore, his restrictions were reapplied at that time.

	c.  On 23 October 2012, the Medical Services Branch received another request to lift the applicant's medical flag for retirement.  This was done and his discharge orders were processed.  The applicant was discharged from the ARNG on 1 September 2012 and transferred to the Retired Reserve and his medical case file was closed.

32.  The applicant's records are void of and he failed to provide evidence showing he completed the trial of duty for his cardiovascular condition.

33.  Army Regulation 40-501, then in effect, provided information on medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures.

	a.  Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement) provided the standards for medical fitness for retention and separation, including retirement.  Soldiers with medical conditions listed in this chapter were referred for disability processing.

	b.  Paragraph 3-24g stated coronary or valvular angioplasty procedures, with the option of a 180-day trial of duty based upon a physician's recommendation when the individual was asymptomatic, without objective evidence of myocardial ischemia, and when other functional assessment (such as cardiac catheterization, exercise testing, and newly developed techniques) indicated that it was medically advisable.  The policies for trial of duty, profiling, and referral to an MEB and physical evaluation board (PEB) (as outlined in paragraph 3-25) applied.

	c.  Paragraph 3-25 stated trial of duty would be based upon a cardiologist's recommendation when the individual was asymptomatic without objective evidence of myocardial ischemia, and when other functional assessments (such as coronary angiography, exercise testing, and newly developed techniques) indicated it was medically advisable.  If the Soldier successfully completed the trial of duty, was considered New York Heart Association Functional Class I, and there were no physical or assignment restrictions, the Soldier could be returned to duty without referral to an MEB.  If the Soldier had any physical restrictions after the trial of duty, he or she would be referred to an MEB.  In addition to the documented results of the trial of duty, a detailed report from the commander or supervisor clearly describing the individual's ability to accomplish assigned duties and to perform physical activity would be incorporated into the MEB record.  The results of the MEB and an updated DA Form 3349 would then be forwarded to a PEB if the Soldier did not meet medical retention standards.  For Reserve Component Soldiers not on active duty, the trial of duty could consider performance in the Soldier's civilian position, as well as any military duty that may have been performed in the interim.

	d.  Chapter 7 (Physical Profiling) provided a system for classifying individuals according to functional abilities and was used to assist the unit commander and personnel officer in their determination of what duty assignments the individual was capable of performing and if reclassification action was warranted.

		(1)  Four numerical designations (1-4) were used to reflect different levels of functional capacity in six factors (PULHES):

* P – physical capacity or stamina
* U – upper extremities
* L – lower extremities
* H – hearing and ears
* E – eyes
* S –psychiatric

		(2)  Numerical designators 2 and 3 indicated an individual had a medical condition or physical defect which required certain restrictions in assignment within which the individual was physically capable of performing military duty.  The individual received assignments commensurate with his or her functional capacity.

34.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a member is unfit because of physical disability to perform the duties of his or her office, grade, rank, or rating.

	a.  The mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.

	b.  The medical treatment facility commander with primary care responsibility evaluates those referred to him or her and, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refers the member to an MEB.  Those members who do not meet medical retention standards are referred to a PEB for a determination of whether they are able to perform the duties of their grade and military specialty with the medically-disqualifying condition.

	c.  Paragraph 3-2b(1) states that when a member is being separated by reasons other than physical disability, his or her continued performance of assigned duty commensurate with his or her rank or grade until he or she is scheduled for separation or retirement creates a presumption that he or she is fit.  This presumption may be overcome only by clear and convincing evidence that he or she is unable to perform his or her duties for a period of time or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, renders the member unfit.

35.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his or her office, rank, grade, or rating because of a disability incurred while entitled to basic pay.

36.  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 of less than 30 percent.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was assigned temporary physical profiles based on his coronary issues and he was subsequently granted a trial of duty for his cardiovascular condition.

2.  During his trial of duty, he elected retirement.  His records are void of and he failed to provide evidence showing he completed the trial of duty.  He elected retirement instead of complying with the trial of duty, after which he may have been referred to an MEB/PEB.

3.  The evidence of record fully supports the type of discharge he received.  There is no evidentiary basis upon which 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 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)                                         AR20140006008



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ABCMR Record of Proceedings (cont)                                         AR20140006008



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