PROCEEDINGS

	IN THE CASE OF:

	BOARD DATE:            15 March 2000                  
	DOCKET NUMBER:   AR1999023971

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

	Ms. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Ms. Margaret K. Patterson		Member	
	Mr. Van B. Cunningham		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

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

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, that his military records be corrected to show that he was retired by reason of physical disability or that he be granted retirement under the Temporary Early Retirement Authority.  He states, in effect, that he was found unfit for continued military service in 1998 but that the condition which rendered him unfit was determined to be an inherited trait and as such was considered to be pre-existing to his military service.  Because the condition was determined to be neither incurred during, nor aggravated by, his military service he was separated without entitlement to any disability benefits.  At the time of his release he had more than 16 years of active Federal service.  He notes that his attempts to be retired under an early retirement program were also denied.  The applicant states that his “career was ended three years short of retirement, at no fault of [his] own.  His condition, contrary to the USAPEB, developed, went undiagnosed, and resulted in permanent damage during [his] service.”  He notes there is “absolutely no family history of [his] alleged hereditary condition; there is no evidence that it existed prior to [his] military service, and it developed and became severe during and because of [his] military service.”  The applicant contends that his “dismissal without any benefits was unjust, unfair, and not within the “care for soldiers” concepts [he] learned in the Army [he] served proudly for over sixteen years.”  In support of his request he submits a statement from a VA physician who noted, in effect, that the applicant’s condition was not congenital but that the reason “for his clots are idiopathic.”

3.  In February 1998 the applicant underwent a Medical Evaluation Board (MEB) as a result of being diagnosed with multiple pulmonary emboli secondary to diminished Protein C and Protein S antibodies.  The MEB summary notes the applicant was initially admitted to the VA hospital in Albuquerque, New Mexico in September 1997 with complaints of multiple episodes of chest pain and shortness of breath over a period of approximately 1½ years.  The MEB concluded the applicant “has a number of medical problems most serious of which being a tendency to deep venous thrombosis and pulmonary embolism secondary to Protein C and Protein S deficiency” and recommended the applicant be referred to a Physical Evaluation Board (PEB).

4.  An informal PEB concluded on 19 June 1998 that the applicant’s condition (status post multiple pulmonary emboli secondary to Protein S and Protein C deficiencies – VASRD (VA Schedule for Rating Disabilities) Code 6817) rendered him unfit but that the condition was the result of a “recessive inherited trait” and as such was considered to have existed prior to his entry on active duty and so was neither incurred during, nor permanently aggravated by, his military service. The PEB recommended separation without disability benefits.

5.  The applicant non-concurred with the findings and recommendation of the PEB.  His appeal was considered by the Army Physical Disability Agency which concluded that the applicant case “was properly adjudicated by the PEB, which correctly applied the rules that govern the Physical Disability Evaluation System in making its determination” and that the findings and recommendation of the PEB were “supported by substantial evidence and therefore affirmed.”

6.  On 30 September 1998 the applicant was discharged in the grade of major by reason of physical disability which “existed prior to service….”  At the time of his separation he had 16 years, 3 months of 23 days of continuous active Federal service.

7.  In the processing of this application an advisory opinion was obtained from the Board’s medical advisor.  The opinion noted, in effect, that evidence indicated the applicant had an EPTS condition “in the form of a genetic disorder of a recessive type” which would normally be a basis to deny disability benefits.  However, the medical advisor noted that Title 10 of the USC provides that “even if the disabilities were not incurred or permanently aggravated while the member was entitled to basic pay, if he had at least eight (8) years of “active service” he is to be compensated for all unfitting disabilities.”  The Board’s medical advisor recommended the applicant be retired with a 50 percent disability rating.  The applicant was provided an opportunity to respond to the advisory opinion and faxed his concurrence on 24 February 2000.

8.  Title 10, USC, section 1201 states that the Secretary concerned may retire a member, with retired pay if he/she determines that the unfitting disability is based upon accepted medical principles, the disability is of a permanent nature and stable, the disability is not the result of the member’s intentional misconduct or willful neglect, and it was not incurred during a period of unauthorized absence, and either the member has at least 20 years of service or the disability is at least 30 percent under the standard schedule of rating disabilities used by the Department of Veterans Affairs at the time of the determination; and either the member has at least eight years of service, the disability is the proximate result of performing active duty; the disability was incurred in line of duty in time of war or national emergency; or the disability was incurred in line of duty after 
14 September 1978.

9.  Public Law 102-484, the FY93 Defense Authorization Act, was enacted on October 23, 1992. Section 4403 of that law gives the Military Departments the authority to permit early retirement of selected military members with more than 15 but less than 20 years of service who agree to be registered for employment in public or community service organizations.  TERA was an additional tool to effect the drawdown of military forces through October 1, 1999.  The purpose of the early retirement program was to provide a temporary management tool to reshape the Army and was offer only to officers who met strict eligibility requirements.  At the time of the applicant’s separation he was not in any of the categories open to early retirement.  The program targeted specific occupational groups, grades, and years of service.

CONCLUSIONS:

1.  The evidence confirms the applicant had more than 8 years of active service at the time he was determined to be unfit for continued military service and as such under Title 10 of the USC is entitled to disability retirement if his disability is at least 30 percent.

2.  The medical advisor to the Board recommended the applicant’s disability be rated at 50 percent under VASRD Code 6817.

3.  At the time of the applicant’s separation he was not eligible for any of the early retirement programs which were being offered.

4.  In view of the foregoing findings and conclusions, it would be appropriate to correct the applicant’s records as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected:

a.  by showing that the action separating the individual concerned from active duty on 30 September 1998 is void and of no force or effect; and

b.  by showing that he was discharged from active duty on 30 September 1998 by reason of physical disability, rated 50 percent disabling in accordance with the VASRD ; and that effective 1 October 1998, he was permanently retired under the provisions of Title 10, United States code, section 1201, with entitlement to retired pay in the grade of major.

BOARD VOTE:  

__rvo___  ___mkp__  ____vbc_  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999023971	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000315	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	Grant	
REVIEW AUTHORITY		
ISSUES         1.	108.00	
2.		
3.		
4.		
5.		
6.