MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:             25 July 2000                  
	DOCKET NUMBER:     AR1999028558

	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. Carl W. S. Chun		Director	
	Mr. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Mr. Ted S. Kanamine		Chairperson	
	Mr. Stanley Kelley		Member	
	Mr. John H. Kern		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:  Through counsel, that his discharge be voided, that his records be corrected to show that he was retained on active duty on a medical hold status, that it be shown that he was considered by an informal Physical Evaluation Board (PEB) which determined that he was physically unfit, and that it be shown that he was separated for physical disability with an appropriate percentage of disability.

APPLICANT STATES:  Counsel renders a chronology of the history of the applicant's heart disease.  In synopsis, the applicant suffered from a heart attack while on active duty for which he was treated and medically boarded, with a finding of physically fit for continued duty.  The applicant was then notified that he had been considered and not selected for promotion to major for the second time, and that he had to be separated not later than 1 April 1999.  The applicant requested an earlier separation date and his request was granted, with his separation date then established as 31 December 1998.  On 23 October 1998, contrary to the medical opinion that the applicant was low risk for further heart problems, the applicant suffered from a second heart attack.  Cardiac catheterization was performed which showed that the applicant’s cardiovascular system had deteriorated from his post-operative condition after his first heart attack.  The applicant was given 30 days convalescent leave and returned to outprocess from the Army, which included a final type physical examination.  During that examination his two heart attacks were noted and dismissed as unimportant.  Counsel argues that Department of Defense Instructions require the initiation of an MEB once an inability to return to full duty is ascertained and optimal medical treatment benefits have been attained, neither which occurred after the applicant’s second heart attack.  Counsel continues that the Veterans Administration Schedule for Rating Disabilities (VASRD), section 7006, suggests that a minimum observation period of 3 months is required prior to making a final diagnosis on a soldier who has had a heart attack.  As such, the applicant was required to be retained on active duty on a medical hold status until a final diagnosis could be rendered and the applicant processed through the Army’s disability system.  Counsel concludes that “In practical terms what happened here was that the applicant was about to be separated and no one in medicine or command had either the energy or the inclination to obey the regulatory scheme.  This created the injustice complained of.”

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

The applicant entered active duty in a commissioned status on 27 September 1987 with 4 years, 11 months and 1 day prior active service, and 6 years           10 months and 18 days prior service in the USAR not on extended active duty.  His areas of concentration were infantry and comptroller and he was promoted to captain.

Applicant’s counsel has presented the Board an accurate portrayal of the events surrounding the applicant’s two heart attacks, his failure to be selected for promotion, and his mandatory removal from active duty.  The Board does not believe it necessary to reiterate that chronology.

Army Regulation 635-40, paragraph 1-1, Purpose, states in part that “The objectives of this regulation are to . . . provide benefits for eligible soldiers whose military service is terminated because of a service-connected disability.”

Title 10, USC §632, states that regular captains and majors who are twice considered but not selected for promotion to the next higher grade will be discharged on a date selected by the officer, but not later than the 1st day of the 7th month beginning after the month in which the President approves the report of the board which considered him for the second time.

Title 38 USC §310 and §331, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a VA rating does not establish error or injustice in the actions taken by the Army.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The VA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual’s employability. 

Army Regulation 635-40, Appendix B, paragraph B-66.  7005-7017 – Disease of the coronary arteries, surgical procedures and trauma, states that a 30 percent disability rating is authorized when more than ordinary manual labor is precluded, for instance, by a N.Y Functional Class II Heart.  This paragraph also states that the treating cardiologist may request a trial of duty prior to final evaluation, but a PEB does not have the authority to demand a trial of duty.

Army Regulation 635-40 provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to an MEB.  Those members who do not meet medical retention standards will be 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.  For example, a noncommissioned officer who receives above average evaluation reports and passes Army Physical Fitness Tests (which have been modified to comply with the individual’s physical profile limitations) after the individual was diagnosed as having the medical disqualification would probably be found to be fit for duty.  The fact that the individual has a medically disqualifying condition does not mandate the person’s separation from the service.  Fitness for duty, within the parameters of the individual’s grade and military specialty, is the determining factor in regards to separation.  If the PEB determines that an individual is physically unfit, it recommends the percentage of disability to be awarded which, in turn, determines whether an individual will be discharged with severance pay or retired.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.    In this regard, the Army rates only conditions determined to be physically unfitting, thus compensating the individual for loss of a career. 

Title 10, U.S. Code, chapter 61, Retirement or Separation for Physical Disability, provides for the medical retirement and for the discharge for physical unfitness, with severance pay, of soldiers who incur a physical disability in the line of duty while serving on active or inactive duty.  

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.  The applicant was separated from active duty because he was twice considered and not selected for promotion.  

2.  The applicant was given a final medical examination which determined that he was medically qualified for retention, a finding which precluded his referral to a PEB.  Neither the applicant nor his counsel have submitted any evidence or argument which would show that this finding was incorrect.  

3.  The Board notes that the applicant has not submitted either medical documents from after his release from active duty which would show that he has a ratable heart condition, or employment records which would show that he is precluded from performing more than ordinary manual labor.  Absent evidence of this nature the Board must presume regularity in the decision of the applicant’s cardiologist not to give him a trial of duty and the finding of his final physical examination that he was medically qualified. 

4.  The Board notes that the applicant may apply for disability compensation from the Department of Veterans Affairs which is empowered by law to compensate a veteran for medical conditions which cause industrial or social impairment.
 
5.  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

___tsk___  ___sk___  ___jhk___  DENY APPLICATION

		   Carl W. S. Chun
		   Director, Army Board for Correction
		   of Military Records

INDEX

CASE ID	AR1999028558	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000725	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	108.05	
2.		
3.		
4.		
5.		
6.