MEMORANDUM OF CONSIDERATION

IN THE CASE OF:   

BOARD DATE:           11 February 1999                   
	DOCKET NUMBER:   AC97-10429
				   AR1999015817

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	
	Mr. Vic Whitney		Analyst	

The following members, a quorum, were present:

	Ms. Irene N. Wheelwright		Chairperson	
	Mr. Van B. Cunningham		Member	
	Ms. Carol Jo Suiter		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 separation on 20 March 1995 be changed to retirement by reason of physical disability, that his percent of disability be set at 75 percent and that he receive back pay from his date of separation through the date of determination by this Board.

APPLICANT STATES:  Through counsel, applicant states that the Medical Evaluation Board (MEB) of 29 November 1994 resulted in a confirmed diagnosis of diabetes, heart disease, and an unspecified kidney functioning problem or the existence of hypertension.  However the Medical Evaluation Board (MEB) found him fit for duty under the presumption of fitness.  He had heart surgery as early as 7 months into his military service and medical records show that it became progressively worse.  Diabetes was first confirmed in May 1988 and glaucoma developed later.  The VA has awarded the applicant 80 percent disability on the same service medical records with a finding of service connected.  The fact that the applicant had his clinical privileges restricted (credentialing action) clearly demonstrates that, as a physician, he was not able to perform the duties of his specialty and grade.

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

He was appointed at 54 years of age in the Medical Corps effective 20 February 1985 and credited with 12 years of service.  He was ordered to active duty effective 14 March 1985 in the grade of major.  He was reappointed in the grade of lieutenant colonel effective 23 September 1985 with 16 years of service.  On 28 October 1985 the applicant underwent a cardiac catheterization.  The surgeon noted that the applicant had a normal physical examination with no symptoms of coronary artery disease except that his age, sex, blood sugar, and cholesterol were risk factors.  In November 1986 an installation military specialty medical retention board (MMRB) determined that his medical condition did not preclude his physical performance in his specialty.

On 9 December 1987 the applicant’s request for extension on active duty until 29 May 1990, as an exception to policy, was approved.  On 16 May 1988 he was diagnosed as being borderline glucose intolerant.  In March 1990 the applicant’s request for extension on active duty until September 1993 was approved.  A November 1990 installation MMRB again determined that the applicant’s physical condition did not preclude his performance in his specialty or retention on active duty.

The applicant received a permanent physical profile of P3 for coronary artery disease on 6 August 1991.  The profile allowed him to take a modified physical fitness test and did not alter the requirements of his military specialty or duty assignment.  In May 1992 the applicant’s request for retention on active duty until 20 March 1995 was approved.  The approval memorandum also stated that he would not be eligible for retired pay or benefits because he would not have sufficient time to obtain the required service for retirement from active duty.

The only available document from the medical evaluation board (MEB) is the diagnosis and recommendation of the medical board consultant dated 29 November 1994.  The doctor notes that the applicant’s diabetes was diagnosed during treatment for his cardiovascular disease.  He has maintained near normoglycema by oral medication.  The doctor goes on to state that the applicant continues to function in his specialty although there are signs of end organ damage from the diabetes and his requirement for oral hypoglycemic agents should limit his deployability.  He further recommends that he be referred to a physical evaluation board (PEB)

On 13 January 1995 the applicant requested extension on active duty until 31 December 1998.  The chief of his department recommended disapproval of the extension noting that he would be 65 years of age in May 1995.  The commander of the medical center, a brigadier general, strongly recommended disapproval of the request noting that he did not want him extended under any circumstances.

A 6 February 1995 PEB found the applicant fit for duty in his current grade and specialty.  The PEB concluded that he did not have any functional impairment that prevented his satisfactory performance of duty.  He formally non-concurred with the finding, waived his right to a formal hearing, and did not submit a written appeal.

The applicant’s evaluation reports history, beginning in 1985, repeatedly state that despite a physical profile his condition does not restrict his professional duties.  That comment and the fact that he performs well under physical and mental stress also appear on his evaluation of January 1995.

On 20 March 1995 the applicant was separated from active duty by reason of completion of required active service.  He had 10 years and 7 days creditable service.  His separation physical is not in the available record nor did the applicant provide it.

A VA disability rating of 1 February 1996 provided an overall evaluation of 80 percent service-connected disability.  The rating was based on a review of his service medical records, civilian doctors’ statements, and three physical examinations conducted by the VA.  The service-connected ratings were for arteriosclerotic heart disease, open angle glaucoma, diabetes mellitus, arthritic changes, and a hearing loss.

The applicant, through counsel, stated that the principal proof in determining his fitness for duty as a doctor is whether he has had any credentialing action taken against him.  He goes on to state that since his clinical privileges were restricted at the time of the MEB and PEB this clearly demonstrates that he could not perform the duties of his office and grade.

Information provided by the Army Medical Command, authorized for release by Title 10 USC, section 1102 (c), clearly shows that his clinical privileges were restricted in 1992, 1993 and 1994 due to questionable medical judgment, a pattern of deficiency in the management of ectopic pregnancies and a catastrophic event which resulted in an “exceptionally unfavorable outcome.”

A 22 August 1992 memorandum from the commander of the installation medical department activity states that the applicant’s clinical privileges at that Army hospital were permanently restricted.  A I July 1992 hearing of his case found that he had deviated from the standard of care in two cases.

The record of credentialing actions taken by the Army on the applicant show that his surgical privileges were restricted effective 14 September 1993 while the hospital commander investigated an incident and reviewed the findings and recommendations of the credentials hearing committee.  The reason code used on the action report was “suspension for incompetence/malpractice/negligence.”

In this case the commander of this installation medical center restricted his clinical privileges by prohibiting him from performing any surgical procedures except in extreme, life-threatening emergencies.  On appeal the Commander, Health Services Command upheld the earlier decision. On further appeal the Office of the Surgeon General restricted the applicants clinical privileges for 6 months by relieving him of all teaching responsibilities and requiring a 100 percent review of all cases.

None of the credentialing actions taken against the applicant mentioned a physical impairment by the applicant as a factor.  Additionally, the applicant never mentioned a physical impairment as a possible cause of his faulty judgment and techniques.

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

Army Regulation 40-501 provides medical fitness standards for retention and separation.  It provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.  It also provides, in pertinent part, that performance of duty despite an impairment would be considered presumptive evidence of physical fitness.

Title 38, United States Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, 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 or unjust.  The applicant and counsel have failed to submit evidence that would satisfy the aforementioned requirement.

2.  Notwithstanding the presence, or possible presence of various medical conditions there is no evidence of record, nor has the applicant or counsel provided sufficient records, which would indicate that any of these conditions were of such severity as to render him unable to reasonably perform the duties of his rank or specialty.

3.  The applicant’s evaluation report history, the results of the PEB, and his repeated request for continuation on active duty, including his 13 January 1995 request, clearly demonstrate that competent military authority and the applicant himself determined that he was medically qualified for continued service or non-disability separation.

4.  The fact that the VA, in its discretion, has awarded the applicant a disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish physical unfitness for Department of the Army purposes.  The VA, which has neither the authority nor the responsibility for determining medical unfitness for military duty, awards ratings because a medical condition maybe related to service ("service connected") and affects the individual’s civilian employability.  The Army must find that a service member is physically unfit to reasonably perform their duties before they can be medically retired or separated.

5.  The Board further finds no basis in fact that the applicant had a physical impairment based on the issue that he was under clinical restrictions prior to his separation.  The suspensions taken against the applicant by the military medical community were clearly, as stated in the privileging actions, based on incompetence, malpractice, and/or negligence.

6.  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

__INW___  __VBC___  __CJS___  DENY APPLICATION

Loren G. Harrell
Director

INDEX
CASE ID	AC97-10429/AR1999015817	
SUFFIX		
RECON		
DATE BOARDED	19990211	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	19950320	
DISCHARGE AUTHORITY	AR 635-100	
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	108.01	
2.		
3.		
4.		
5.		
6.