MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           3 June 1999                   
	DOCKET NUMBER:   AR1998002321

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Ms. Kathleen A. Newman		Member	
	Mr. Thomas B. Redfern, III		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That his Department of the Army Qualitative Management Program (QMP) bar to reenlistment be removed from his records.

APPLICANT STATES:  He had open heart surgery on 5 August 1993.  His poor performance addressed by the Bar was the result of his failing health for coronary artery disease.

COUNSEL CONTENDS:  Counsel makes no contention.

EVIDENCE OF RECORD:  The applicant's military records show:

After having had prior enlisted service in the U. S. Air Force and the U. S. Air Force Reserve, he enlisted in the U. S. Army Reserve (USAR) on 31 August 1976.  He was voluntarily ordered to active duty in an Active Guard/Reserve (AGR) status on 14 June 1986 for duty as a field recruiter.

In March 1989, the applicant was hospitalized after experiencing chest pains.  A catherterization procedure was performed.  The impression at the completion of the procedure was double vessel coronary artery disease, moderate reductional left ventricular function, and asymptomatic after anterior infarction.  He was discharged on 30 March 1989 and ambulated without further chest pain.

In August 1989, the applicant was hospitalized after experiencing chest pain.  He was diagnosed as demonstrating extensive three vessel coronary artery disease with significant obstruction of his left main coronary artery and reduced ejection fraction.

A January 1990 medical report noted “…is doing quite well.  He only gets anginal type chest pain when he gets extremely upset which is infrequent.”

A March 1990 medical report noted “…is completely asymptomatic and is feeling well.”

On 5 April 1990, the applicant reenlisted in the USAR for an additional 4-year active duty commitment in the AGR as a field recruiter. 

An August 1990 medical report noted “…is doing very well.  He has rare angina when he gets emotionally upset and at no other time.”  

On the applicant’s non-commissioned officer evaluation report (NCO-ER) for ending period November 1990, his rater commented that his profile did not prohibit him from performing his current job. 

On 21 December 1990, the applicant was given a physical profile for his medical condition of artherosclerotic heart disease.  His assignment limitation was noted as “needs access to medical facility within fifteen minutes.”

An April 1991 medical report notes “…got into a bit of an argument with his boss today who tried to fire him.  He had about 10 minutes of severe angina which spontaneously resolved once he regained his temper.”  The impression was he was doing well and that he had emotional induced angina and should try to avoid emotional stress.

On the applicant’s NCO-ER for the period ending November 1991, his rater commented that he scored 59 on his Skills Qualification Test (maximum is 100), that his profile did not hinder his duty performance, and that he always had a reason or excuse for mission failures.  His senior rater gave him all negative comments, to include “difficulty performing under stress.”  It is not known if he appealed this NCO-ER.

A December 1991 medical report noted “…is doing quite well.  He has had rare angina.  He is feeling quite well.”

On the applicant’s NCO-ER for the period ending March 1992, his rater commented that his profile did not hinder his duty performance.  His senior rater commented that he could be counted on to give his best effort but also that he had limited potential due to medical problems.

A June 1992 medical report noted “…is doing quite well.  He has had nothing to suggest a change in his anginal pattern.  When he gets stressed, which he often does at work, he will get angina but it is relieved rapidly…He still gets chest pain with any type of moderate exertion.  He has had no symptoms of heart failure.”

A January 1993 medical report noted “…only has chest pain consistent with angina when he gets upset…when he is doing physical training during his job.  He is, otherwise, feeling quite well and doesn’t get much angina.  He has had no symptoms of heart failure.”

On the applicant’s NCO-ER for the period ending March 1993, his rater commented that his profile did not hinder his duty performance but made several negative comments including “significant shortfall in achieving assigned mission…;” “requires frequent supervision” and “is lacking in individual initiative.” His senior rater commented “not equipped physically or mentally to perform as Master Sergeant in today’s Army.”  It is not known if the applicant appealed this NCO-ER.

On 22 April 1993, the U. S. Army Reserve Personnel Center (ARPERCEN) notified the applicant that a QMP board determined he should be barred from reenlistment in the USAR AGR program.  The applicant did not appeal this QMP bar.  He elected to complete his remaining 11 months of active duty in an AGR status and to take no further action.

On 17 May 1993, the applicant was given another physical profile for his medical condition of heart disease.  His assignment limitation was noted as “requires emergency department within 15 minutes travel.  Duty not to exceed 8 hours per 24 or 5 days per seven days.  Conditioning drills at own pace/reps only.  One event pass/fail APFT only.  Recommend medical retention board (MMRB) thru personnel.”

A June 1993 medical report noted “…is doing quite well…”

In August 1993, the applicant was hospitalized after suffering prolonged chest pain.  He underwent a three-vessel coronary artery bypass graft.

On 31 August 1993, the applicant received notification that he was eligible to receive retired pay at age 60 (his “20-year letter”).

A September 1993 medical report notes “since then he has had no symptoms of heart failure, angina and he feels quite well.”

On the applicant’s NCO-ER for the period ending March 1994, his rater commented that he was not able to perform his assigned duties due to his physical profile.

An October 1993 medical report noted “…is completely asymptomatic.  …He is exerting himself quite well….His stress test was mildly concerning…He had good exercise tolerance…”

A January 1994 medical report noted “…is doing quite well…his is doing calisthenics and workouts at least three times per week…”

Medical reports in May and July 1994 have similar remarks.

The applicant requested retention on active duty beyond his scheduled release date due to medical evaluation/physical evaluation board (MEB/PEB) processing. This request was approved.

On November 1994, the narrative summary from the MEB found the applicant without significant complaints.  He had undergone a stress test for 11 minutes without symptoms or evidence of ischemia by cardiolyte.  He apparently had been performing normal activity at this time without significant symptoms.  It was anticipated that he could perform administrative duties without difficulty.

A December 1994 medical report notes some “concern with rest discomfort which is probably angina.”

An April 1995 medical report notes “…has rare episodes of angina.”

On 19 May 1995, an informal PEB found the applicant fit for duty under the presumption of fitness rule.  The applicant nonconcurred and demanded a formal hearing.  On 21 September 1995, a formal PEB reaffirmed the prior finding.  The applicant nonconcurred and appealed.  The U. S. Army Physical Disability Agency reviewed the PEB findings and affirmed the decision.   

A July 1995 medical report notes “…only has chest pain under extreme emotional stress.  He has had no symptoms of heart failure and, in general, he feels quite well.”

An October 1995 medical report notes “…is doing well.  However…He is stable but is disabled.”

On 5 January 1996, the applicant was released from active duty.

A 15 January 1996 medical report notes “…is only doing fairly well…”

Army Regulation 140-111, chapter 10, sets forth policy and prescribes procedures for denying service on AGR status under the USAR AGR QMP.  This program is based on the premise that reenlistment is a privilege for those whose 
performance, conduct, attitude, and potential for advancement meet USAR AGR standards.  It is designed to (1) enhance the quality of the AGR career enlisted force, (2) selectively retain the best qualified soldiers up to 29 years of active federal service, (3) deny reenlistment for continuing AGR service to nonprogressive and nonproductive soldiers, and (4) encourage soldiers to maintain their eligibility for further service.  Bars to reenlistment imposed under the provisions of the QMP are not intended to be rehabilitative.  They are designed to deny reenlistment for continued service on AGR status to soldiers 

who are identified through the qualitative screening program as failing to meet USAR AGR standards.  Bars to reenlistment imposed under the provisions of the QMP, while denying a soldier continuing service on AGR status, will not deny the soldier an opportunity to reenlist in the USAR for continued service in another status, provided otherwise qualified. 

Army Regulation 635-40 governs the evaluation for physical fitness of soldiers who may be unfit to perform their military duties because of physical disability.  It applies to the Active Army, the Army National Guard and the U.S. Army Reserve. In pertinent part, it states 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 they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  When a soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the soldier is scheduled for separation or retirement, creates a presumption that a soldier is fit.  This “presumption of fitness’ rule will be applied to soldiers who enter the physical disability evaluation system and are within 9 months of mandatory retirement for age, service in grade and/or years of service.  Application of the rule does not mandate a finding of fit.  The presumption is rebuttable and is overcome when the preponderance of evidence establishes the soldier was physically unable to perform adequately the duties of his or her office, grade or rank.

In the processing of this case, an advisory opinion was obtained from the USAPDA (SEE ATTACHED).  The USAPDA noted that the applicant’s PEB case was decided under the presumption of fitness rule based upon his QMP notification on 22 April 1993.  However, the USAPDA also noted that had the presumption rule not been used the results would still have been fit for duty based upon the medical evidence which supported a finding that he could perform his duties as a recruiter.

The opinion was provided to the applicant for comment/rebuttal.  He did not respond within the given time frame.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion, it is concluded:

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

2.  While the medical evidence certainly shows that the applicant had a heart condition and had even had several myocardial infarctions, the medical evidence also shows that he responded well to all medical procedures performed and medications given.  In January 1990 he was “… doing quite well.”  In March 1990 he was “…completely asymptomatic and is feeling well.”  In August 1990 he was “… doing very well.”  In December 1991 he was “…doing quite well.  He has had rare angina.  He is feeling quite well.”  In June 1992 he was “…doing quite well.”  In January 1993 he “…only has chest pain consistent with angina when he gets upset…when he is doing physical training during his job.  He is, otherwise, feeling quite well.  He has had no symptoms of heart failure.”  In June 1993 he was “doing quite well.”  

3.  It was not until 17 May 1993 that the applicant received a physical profile that actually limited his duties.

4.  The negative comments on the applicant’s NCO-ERs began to appear in the report ending November 1991.  Even so, it was not until his NCO-ER for the period ending March 1994 that his rater, his most direct supervisor, commented that his profile did hinder the performance of his duties.  There is no evidence that the applicant appealed these NCO-ERs at the time with the contention that his poor performance, as noted on these reports, was the direct result of his medical condition.

5.  The Board also notes that the applicant did not appeal his QMP at the time with his contention.

6.  The Board concludes that the medical evidence does not show that his failing health for coronary artery disease was the cause of his poor performance as noted on his NCO-ERs, which in turn were the basis for his QMP.  His medical reports did not become even somewhat negative until around December 1994, 18 months after he received his QMP bar.

7.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__rvo___  __kan___  __tbr___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1998002321	
SUFFIX		
RECON		
DATE BOARDED	19990603	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	100.06	
2.		
3.		
4.		
5.		
6.