MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  1 August 2000
	DOCKET NUMBER:  AR1999028954

	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. Paul A. Petty		Analyst	

  The following members, a quorum, were present:

	Ms. Deborah S. Jacobs		Chairperson	
	Mr. Ernest W. Lutz		Member	
	Ms. Karol A. Kennedy		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:  In effect, that his release from active duty from the Regular Army be changed to a medical retirement.

APPLICANT STATES:  In effect, that he was not given a Medical Evaluation Board (MEB) before he was discharged from the Regular Army and that he should have been given one because he had chronic sinusitis for the year preceding his discharge.  This condition further rendered him medically unfit for retention in the Army National Guard (ARNG) causing him to be discharged from the ARNG 9 months after he had transferred to the ARNG from the Regular Army.  Instead of discharge from the Regular Army, he should have been medically retired because his chronic sinusitis that began while he was in the Regular Army continues to be chronic and debilitating in spite of numerous treatments and operations.  He submits a copy of his military and Veterans Administration (VA) medical records and findings.  He states that at the time of his release from active duty in the Regular Army, he did not believe he deserved medical retirement.  He now believes he is entitled to medical retirement.  He states that his sinus condition has not responded to numerous surgeries and he has now been rated 50% disabled by the VA.

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

That he enlisted in the Regular Army on 20 August 1985.  He completed training for Armor Crewman and served in Armor units.  He rose to the pay grade of E-4 on 1 September 1986.

On 31 March 1988, he was admitted to William Beaumont Army Medical Center (WBAMC) for a migraine headache and possible sinusitis that had continued for 11 days without responding to Tylenol, Motrin, or Ampicilin.  The applicant told the doctor that he had a history of migraine headaches as a child and a teenager, his last episode being 6 years before the present one.  He was tested, treated successfully with Midrin, and released from the hospital on 1 April 1988.

On 16 August 1988, the applicant was again admitted to WBAMC for a severe left frontal headache.  He was diagnosed with mucocele in the left frontal sinus (pressure in the sinus created by accumulated mucous).  The condition was relieved with surgery on the sinus and nose (frontal sinus osteoplastic flap with frontal sinus septectomy and frontal ethmoidectomy).  The applicant recovered well with a clear and healed sinus and no infection.  He was released from the hospital on 8 September 1988 with a four week profile of no field duty.

On 14 October 1988, the applicant developed a severe frontal headache after running during physical training which he had done for the first time since release

from the hospital on 8 September 1988.  He was admitted to the hospital for tests and exploratory surgery to diagnose his condition.  He was diagnosed with acute and chronic inflammation of the left frontal sinus.  The condition was treated with daily frontal drain and irrigation until 7 November 1988.  He was released from the hospital on 8 November 1988.

On 8 March 1989, he was admitted to the WBAMC and diagnosed with chronic frontal sinusitis, recurrent mucocele.  He underwent some tests and was discharged with pain medication.  He was scheduled to return to WBAMC for sinus surgery on 5 April 1989.  On 5 April 1989, he underwent surgery for a left nasal frontal duct reconstruction with a Sewell-Borden Spetal flap.  The surgery was successful and the applicant was sent home for a four week convalescence. After his return from convalescent leave, his attending physician concluded that his septum was well-healed and he had no symptomatology (of sinusitus).  At the time of his discharge from WBAMC on 1 May 1989, he was not on any medications and was placed on a temporary profile of no field duty and no physical training for one month.

The applicant’s military medical records do not show that he exhibited any more sinusitis symptoms or episodes from 1 May 1989 to his Expiration of Term of Service on 19 August 1989.  On that day, a DA Form 1811, Physical Data and Aptitude Test Scores upon Release from Active Duty, was issued by the transfer point that stated that the applicant’s, “physical condition is such that you are physically qualified for separation,” and his physical profile was shown as 
111111A.  On 19 August 1989, the applicant was honorably released from active duty and transferred to the 109th Armor, Tennessee Army National Guard (TNARNG).  On 14 March 1990, the applicant was transferred from the 109th Armor to the 614th Military Police (MP) Company, TNARNG.

On 14 May 1990, the applicant was admitted to the WBAMC for sinus problems.  He was admitted under a VA benefit program.  He was diagnosed with chronic left frontal sinusitis and partial left nasolacrimal (tear) duct obstruction.  Corrective surgery (obliteration of frontal sinuses) was performed and he was released on 26 May 1990.  He was scheduled for further corrective surgery in November 1990 at WBAMC.

On 15 September 1990, while the applicant was participating in a TNARNG training assembly, he experienced an episode of sinus swelling, pain, and blurred vision. This episode appears to have been possibly brought on by wearing a helmet in hot weather.  He was taken to a local civilian hospital and admitted to the emergency room at 1605 hours.  He was treated for the sinus swelling with an anti-inflammatory steroid injection.  A DA Form 2173, Statement of Medical Examination and Duty Status, Section I, Medical Examination, was completed by 

the attending physician stating that the applicant was suffering from frontal sinusitis.  (Section II of the form, Duty Status, was not completed by the unit commander until 2 February 1991.  The unit commander indicated that the applicant’s duty status was present for inactive duty for training (IDT) and his injury was in the line of duty.)  The applicant was released from the hospital at 
1705 hours and placed on quarters using a DD Form 689, Individual Sick Slip.

On 23 October 1990, the commander of the 614th MP Company directed a letter to the TNARNG State Surgeon requesting that the applicant be medically evaluated to determine suitability for continued military service.  He enclosed with the letter the applicant’s medical records and a 17 July 1990 letter from the Army doctor that had treated the applicant for his sinus condition at WBAMC from 1988 to 1990.  The 17 July 1990 letter from the doctor was not addressed to any addressee.  This letter gave a synopsis of the applicant’s medical history with respect to his sinus condition.  The doctor stated that the applicant had required four surgeries that resulted in apparent control of his frontal sinus disease and that he required further surgery to reconstruct his nasal frontal defect with a cranial bone graft to correct bone structure deficiencies created by the previous corrective surgeries.

After a review of medical records and the above letter from the attending physician, on 30 November 1990, the TNARNG Surgeon determined that the applicant should be discharged from the TNARNG due to chronic recurrent sinusitis unresponsive to repeated surgery.  The applicant was so discharged from the TNARNG on 30 November 1990 by authority of National Guard Regulation (NGR) 600-200, paragraph 8-26y, medically unfit for retention standards.

On 28 November 1990, the applicant was again admitted to WBAMC under a VA benefit program.  He was admitted for further surgery as a result of nasal deformity post frontal sinus surgery, complications of surgical and medical care, and forehead edema (fluid) secondary to lymphatic obstruction post surgical trauma.  On 29 November 1990, surgery was performed to graft bone to the lateral nasal area for reconstruction of the nose.  

On 17 June 1991, the TNARNG conducted a formal line of duty investigation on the applicant’s 15 September 1990 IDT frontal sinusitis episode.  The investigation concluded that the applicant’s chronic frontal sinusitis had been aggravated by the training conducted on 15 September 1990 and that it had occurred in the line of duty.

Records show that the applicant is receiving VA 50% disability payments and 
VA medical benefits.  He has had three more surgeries for his frontal sinusitis between August 1994 and June 1999.

According to Army Regulation (AR) 40-501 (Standards of Medical Fitness), effective 14 June 1989, in effect at the time of the applicant’s release from active duty, paragraph 8-23 (Separation), states, “There is no statutory requirement for members of the Active Army to undergo a medical examination incidental to separation from Active Army service.  However, … it is Army policy to accomplish a medical examination if the soldier requests it.”

Title 38, United States Code, sections 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 Army determination of disability.  The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while the VA may rate any service connected impairment including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.  Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at different determinations of disability.  Furthermore, unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings.

Army Regulation 40-501 shows in chapter 3 various conditions and physical defects which may render a soldier unfit for further military service.  Paragraph 
3-29e (Sinusitis), shows an unfitting condition to be, “Severe, chronic sinusitis (inflammation of the sinus) which is suppurative (forms pus), complicated by polyps (protruding deceased outgrowths), and which does not respond to treatment.”  Paragraph 3-3 (Disposition), states that, “Soldiers with conditions listed in this chapter who do not meet the required medical standards will be evaluated by a Medical Evaluation Board (MEB).”  An Army physician will recommend that a soldier on active duty be reviewed by a MEB if the physician judges that the soldier has a condition that is physically unfitting for continued military service as defined in chapter 3.  Chapter 9 (Disposition of medically unfit Reservists), states that, “Reservists who do not meet the fitness standards set by chapter 3 will be transferred to the Retired Reserve (if eligible and apply for it) or be discharged.”  NGB 40-501, effective 30 October 1981, in effect at the time of the applicant’s separation from the TNARNG, states that the provisions of 
AR 40-501 are applicable to the Army National Guard.

National Guard Regulation 600-200 (Enlisted Personnel Management), effective 17 July 1989, in effect at the time of the applicant’s discharge from the TNARNG, paragraph 8-26 (Discharge from State ARNG and/or Reserve of the Army), sub-paragraph y (Medically unfit for retention standards of chapter 3 of AR 40-501),  states, “If a commander suspects a soldier may not be medically qualified for retention, he or she will direct a soldier to present himself or herself for a medical 

exam IAW NGR 40-501.  If retention is not recommended, a request for discharge will be submitted to the State AG.”  The pertinent part of NGR 40-501 states, “… the Commanding Officer of an individual’s  unit may require an individual to undergo a medical examination when, in his opinion, the individual’s medical, physical or mental condition is such that an examination is indicated.”

The Army Review Boards Agency medical advisor reviewed the applicant’s available medical records and found no evidence that any treating physician, while the applicant was on active duty, indicated a need for nor requested a MEB.  The medical advisor did not find sufficient evidence to support a change in the applicant’s discharge.  The applicant rebutted this opinion supplying a statement from the doctor who treated the applicant from 1988 to 1990.  The doctor expressed his medical opinion that the applicant should have undergone a medical board prior to his discharge.  It is noted that this is the same doctor who entered in the applicant’s medical record prior to his discharge the conclusion that the applicant was well healed from his operations and exhibited no frontal sinusitis symptomatology at that time.  This is the same doctor who could have requested a MEB at that time or before the applicant’s discharge but apparently found no reason to do so.

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

1.  That upon release from the active Army on 19 August 1989, the applicant did not exhibit or report any symptoms of chronic frontal sinusitis, request a physical examination, or meet the sinusitis unfitting condition as defined in AR 40-501.  His last medical diagnosis and evaluation of his sinus condition prior to his release from active duty was given by his attending Army doctor on 1 May 1989 upon release from WBAMC.  The doctor recorded that “his (the applicant’s) septum was well-healed and he had no symptomatology (of sinusitus).”  The doctor gave no indication that the applicant had any unfitting condition nor did he recommend a MEB since the applicant’s sinusitis had responded to surgery.  These was no basis at that time or at the time of release from active duty to recommend a MEB.  There is no error or injustice concerning a MEB prior to or at release from active duty.  The applicant was not eligible for consideration for medical retirement.

2.  The applicant was properly discharged from the TNARNG according to regulations in effect at that time.  There was no regulatory requirement for a MEB prior to discharge from the TNARNG.  Based on the applicant’s medical records and training performance, the applicant’s commander properly requested a 

medical evaluation of the applicant’s fitness for retention.  The TNARNG Surgeon evaluated the applicant’s medical records and determined that at that time the applicant had, “chronic recurrent sinusitis, unresponsive to repeated surgery.”  The Surgeon recommended that the applicant be discharged as medically unfit for retention standards.  The applicant was so discharged.  The discharge was correctly executed in accordance with applicable National Guard regulations and Army regulations.

3.  The award of VA compensation, for disabilities that were incurred in or aggravated by active military service, does not establish error or injustice in the Army determination of disability or unfitness at the time of discharge.  The Army rates only conditions determined to be physically unfitting at the time of discharge or release from active duty.  The records show that the applicant did not have a medically or physically unfitting condition at the time of release from active duty.

4.  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

__dj____  __el______  ___kk_____  DENY APPLICATION

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

INDEX

CASE ID	AR1999028954	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000801	
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.  108.00	Medical Retirement	
2.		
3.		
4.		
5.		
6.