MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:           22 June 2000                  
	DOCKET NUMBER:   AR2000035385

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful 		Chairperson	
	Mr. Arthur A. Omartian 		Member	
	Mr. Roger Able 		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, reinstatement in the Army Reserve, promotion to Sergeant First Class, and the restoration of all rights, privileges, and property.  

APPLICANT STATES:  That he was wrongfully denied active duty and promotion opportunities based on the whim and caprice of the Army Reserve Personnel Command surgeon, who determined that he was unfit for service, despite evidence to the contrary.  Her decision cost him a good deal of money.  This situation has been ongoing since 1993, and he presents evidence which was not addressed by the Surgeon’s office or by the Inspector General.  He has been lied to, misled, ignored, and referred to other agencies, and he is tired of it.  

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

The applicant was a troop program unit (TPU) soldier who had been assigned to a Reserve unit in Tampa, Florida until his transfer to the Retired Reserve in 1999. He had previously served in the Regular Army, with tours of duty in Korea, Germany, Vietnam, Panama, and Thailand, among other locations. 

In June 1990 the Command Surgeon at the Army Reserve Personnel Center reviewed the applicant’s records and indicated that he was qualified for retention in the Army Reserve.  On 25 October 1990 that same official reviewed his records and approved a waiver indicating he was qualified for appointment in the Army Reserve and/or active duty.  His physical profile serial was 3 0 0 0 0 0.

A 21 September 1993 report of medical examination indicates that the applicant was qualified for worldwide service with a physical profile serial of 3 1 1 2 1 1.  

In a 21 December 1993 memorandum the chief of the physical evaluation branch at the Army Reserve Personnel Center notified the applicant that his medical records indicated that he did not meet the standards for retention in the Army Reserve and/or entry on active duty, and that he had to elect either discharge, transfer to the Retired Reserve, or request a waiver for retention.  He replied on 27 December 1993, requesting a waiver, stating that his most recent physical examination, dated 21 September 1993, coupled with a stress test, indicated that he was qualified for worldwide retention.

In a 24 February 1994 medical statement, the chief of medicine services of the 6th Medical Group at MacDill Air Force Base in Florida, stated that he had seen the applicant on several occasions over the last year and one half concerning his coronary artery bypass graft, done in January 1990, and that the applicant had not had a myocardial infarction.  He had an exercise stress test in December of 1993, at which time he walked 8 minutes to 85% of his maximum predicted heart rate and had no chest pain.  That official went on to assess the applicant’s condition as coronary artery disease, status post two-vessel coronary artery bypass graft; that the applicant was stable and physically unlimited and qualified for worldwide military service. 

The applicant received a temporary profile of T3 on 7 November 1996 because of his status post coronary artery bypass.

An 18 March 1997 MacDill Air Force Base medical report indicates that the applicant had a revised physical profile serial of 4 0 0 0 0 0, and that that profile was good for one year.  The applicant’s condition was diagnosed as coronary artery disease – no mobility/TDY.  He could jog at his own pace, but could do no prolonged lifting of over 25 pounds for 5 minutes, and no running.  He needed to be located near a community sized hospital or larger.  His medical condition required Medical Evaluation Board (MEB) or Physical Evaluation Board (PEB) processing.

On 2 September 1997 the Army Reserve Personnel Center Command Surgeon informed him that his most recent Army physical examination of 4 February 1997 indicated that he might be disqualified for retention and that his physical status had to be reevaluated; and that he should forward information to that agency concerning the condition of his coronary artery disease.

On 17 December 1997, in reply to notification that he was medically disqualified for retention in the Army Reserve, he requested a fitness for duty evaluation, and if it was found that he did not meet the medical standards for retention, he requested a physical evaluation board (PEB).

On 3 August 1998 the Physical Evaluation Board Liaison Officer (PEBLO) at Fort Stewart, Georgia, informed the Army Reserve Personnel Center that the applicant had been evaluated at the hospital at Fort Stewart.  The physician determined that he did not meet the medical standards for retention in the Army, and that his illness was not incurred during a tour of duty; therefore he was not eligible for a medical evaluation board.  On 30 September 1998 the Army Reserve Personnel Center notified the applicant that his request for a waiver of his medical disqualification had been denied, and that he had to elect discharge from the Army Reserve or transfer to the Retired Reserve.  On 9 October 1998 he requested referral to a physical evaluation board (PEB). 

In a 13 April 1999 letter to the Army Reserve Personnel Center, the applicant indicated, among other things, that he was attempting to obtain medical statements from various physicians, and that all he really wanted, was to be allowed the active duty time to complete the NCOES course so that he could be promoted, and then retire.

In a 22 April 1999 memorandum, the PEB at Fort Sam Houston, Texas informed the applicant that it had completed its fitness for duty evaluation of his case, and that if he did not concur with an “unfit for duty” finding and recommendation, he could submit a written rebuttal or demand a formal hearing. The PEB proceedings indicated that the applicant was unfit because of arteriosclerotic heart disease with angina requiring sublingual nitroglycerin 15-20 times in           3 months despite wearing a nitroglycerine patch; and that he also had a left aortoiliac occlusive disease, symptomatic.  The proceeding indicated that the case was adjudicated as a non-duty related case.  The PEB recommended that the solder be referred for case disposition under Reserve Component regulations.  The applicant did not concur, demanded a formal hearing with personal appearance, with counsel to represent him.

On 6 May 1999 the applicant requested a change in the location of the formal hearing from Fort Sam Houston to MacDill Air Force Base because he could not personally appear before the board because of a significant financial hardship.  He also requested a change in counsel.  On 7 May his request for a change in the site of the board was disapproved, but also indicated that if he did decide to appear and elect DAV counsel, his board would be rescheduled to 2 June 1999 to accommodate him.

On 10 May 1999 the applicant requested a 30 day delay in the formal hearing so that he could complete a new physical examination, as the current one was erroneous.

On 12 May 1999 he was informed by the Army Reserve Personnel Command surgeon that he was not entitled to another physical examination as the slight improvement in his hearing did not negate the February 1997 examination.  He was further informed that travel expenses for soldiers requesting a formal board for non-duty related cases were at no cost to the government, and that his request for orders to travel to San Antonio was denied.

In a 13 May 1999 rebuttal to the PEB findings, the applicant stated that he had spoken with a paralegal and was given the impression that the formal PEB was a done deal.  He stated that any action that might have helped him had been denied out of hand, and that the two year old physical evaluation was flawed.  He stated that he was able to do his job as a broadcaster or journalist, and that he met the physical requirements contained in Army Regulation 611-201.  He requested a delay in the scheduled 2 June 1999 formal PEB in order to arrange transportation.  He said that the Army Reserve Personnel Center tried to tempt him into accepting retirement with something called TAMP, but he returned it without action.  He stated that the Army had turned its back on him, when he needed a little help.

His request for a delay in the proceedings was denied, and he was notified that should he fail to appear for the 2 June formal hearing, it would be conducted without his appearance and with an appointed military counsel to represent his interest.

On 15 May 1999 the applicant requested that the proceedings of the PEB be immediately terminated without action.  He stated that his illness/condition was not incurred during a tour of active duty, and he was therefore not eligible for a physical/medical evaluation board.

In an 18 May 1999 letter to the PEB an individual stated that the applicant was a blackjack dealer, that he was subject to prolonged standing for periods of up to five hours, that he had performed his job well, and that his heart surgery had not affected his ability to do his job.  In a 24 May 1999 letter to the PEB, a news editor stated that the applicant had worked providing journalistic coverage of paintball events for several years, that paintball was a strenuous sport even for the journalists who cover the events, and that the applicant’s heart surgery had not affected his ability as a journalist.

On 18 May 1999 the PEB notified the applicant that it had reviewed his              13 May 1999 rebuttal to the PEB findings, and that it also had received his         15 May 1999 request for proceedings termination.  It found that no change to the original findings was warranted, and that his cardiovascular condition precluded his meeting the physical demands of military service.  The PEB informed him that based on his request, his formal PEB scheduled for 2 June 1999 had been cancelled. 

In a 24 May 1999 memorandum to the PEB he stated that the actions of the PEB were meaningless, because according to the 3 August 1998 memorandum from Fort Stewart, he was not eligible for a PEB.  However, his request for a termination of the PEB proceedings should not be taken as an indication that he had abandoned his fight to remain in the Army Reserve.  In a 25 May 1999 memorandum, the PEB informed him that the evidence indicated that he had demanded to have his case referred to a PEB, that he had elected to exercise his rights for a fitness for duty evaluation board; and the PEB then had the obligation to complete the evaluation process.     

On 22 June 1999 the applicant requested assistance from the DAIG, providing a review of the past actions relating to his case, and requesting an explanation as to why the waiver for his physical disabilities was revoked, requesting that all adverse proceedings in his case be suspended until an investigation had been conducted, and requesting that he be allowed to attend the Advanced NCO course.  The applicant also requested assistance from The Surgeon General. 

The applicant was assigned to the Retired Reserve on 2 September 1999.

In a 16 September 1999 memorandum to the Total Army Personnel Command Inspector General, the Physical Disability Agency stated that the applicant had requested a fitness for duty evaluation and because he was found unfit for retention as a result of that evaluation, he was referred to a physical evaluation board.  On 22 April 1999 an informal PEB found him unfit.  The applicant nonconcurred and requested a formal PEB.  He then requested that the PEB proceedings be terminated without action.  The PEB cancelled the formal hearing; however, the requested termination did not nullify the informal PEB findings.  Those remained valid and unaffected by the applicant’s change of mind.  His PEB findings were not in error and his medical condition precluded his continuation on active duty.

On 27 September 1999 The Surgeon General informed the applicant that soldiers in the Army Reserve who have a medical condition listed in chapter 3 of Army Regulation 40-501 are considered unfit for duty, and that heart disease associated with symptoms such as angina falls below the retention standards of that chapter.  He was further informed that since his medical condition did not meet retention standards, the Army Reserve Personnel Command was within its regulatory authority to grant or deny his continuation in the Army Reserve.

On 5 October 1999 the Total Army Personnel Command Inspector General informed the applicant that his PEB findings were not in error and his medical condition precluded his continuation on active duty.  His case was processed through the PEB as provided for in regulations.  On 13 October 1999 he requested that command to reconsider his case.  On 15 November he was informed that the conduct of the PEB was the only issue addressed by the Total Army Personnel Command IG, and that other issues should be addressed to the Army Reserve Personnel Command, and if after receipt of their response, he still believed that an injustice occurred, he should apply to this Board.  On               17 November 1999 the Army Reserve Personnel Command IG informed him that the Physical Disability Agency had reviewed his case, and approved the findings of the PEB that he was medically disqualified.  Since he was now in the Retired Reserve he should apply to this Board for relief. 

Army Regulation 40-3, chapter 7, provides for medical evaluation boards (MEBDs), and are convened to document a service member’s medical status and duty limitations insofar as duty is affected by the member’s medical status.  Situations that require consideration by a MEBD include those involving Reserve Component personnel on active duty for training (ADT) or inactive duty for training (IDT), whose fitness for further military service upon completion of hospitalization is questionable, and those who require hospitalization beyond the termination of their tour of duty.  Consideration by a MEBD also includes those involving a Reserve Component member who requires evaluation because of a condition that may render him unfit for further duty. 

Army Regulation 40-501 provides information on medical fitness standards for enlistment, retention, and related policies and procedures.  Chapter 9 sets basic policies and procedures for medical examinations.  It covers those examinations used to medically qualify individuals for entrance into and retention in the Army Reserve.  Normally, Reservists who do not meet the fitness standards will be transferred to the Retired Reserve or discharged.  They will be transferred to the Retired Reserve only if eligible and if they apply for it. 

Army Regulation 635-40, chapter 8, outlines the rules for processing through the disability system soldiers of the Reserve Component who are on active duty for a period of less than 30 days or on inactive duty training; and outlines the criteria under which soldiers of the Reserve Component, whether or not on extended active duty, apply for continuance in the active Reserve.

Paragraph 8-6 states that when a commander believes that a soldier not on extended active duty is unable to perform his duties because of physical disability, the commander will refer the soldier for medical evaluation.  Paragraph 8-6b states in effect, that the medical treatment facility will forward the medical evaluation board to the soldier’s unit commander for disposition under applicable regulations. 

Paragraph 8-9 states in pertinent part that a soldier not on extended active duty who is unfit because of physical disability will be separated without benefits if the disability was not incurred or aggravated as the proximate result of performing annual training, active duty special work, active duty for training, inactive duty training, etc. 

The VA schedule for rating disabilities shows that arteriosclerotic heart disease (code 7005) warrants a disability rating of 30 percent, 60 percent, or 100 percent, depending upon the circumstances.

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 Board recognizes that at times there will be an honest difference of opinion among physicians as to a diagnosis, and the Board has considered the 1994 medical statement that the applicant was stable and physically unlimited and qualified for worldwide military service.  Nonetheless,  competent medical authorities have determined that the applicant was medically unfit for retention in the Army Reserve, first in 1990, at which time he received a waiver.  Again, in 1993, it was determined that he was unfit for retention in the Army Reserve, although there is no indication of any immediate action taken based on that determination.  However, he was again informed, this time in 1997 that he might be disqualified for retention, and he requested and received a fitness for duty evaluation.  He was found unfit for retention by the examining physician; and subsequent to that action, his request for a waiver of his medical condition was denied.  In April 1999 a physical evaluation board determined that he was unfit for retention.   

2.  Based on his request for assistance, The Office of the Surgeon General and the Total Army Personnel Command Inspector General Office have both determined that his case was properly handled, that the PEB findings were not in error, and that he was medically disqualified for retention.

3.  Notwithstanding the applicant’s contentions to the contrary, there is no evidence, nor has the applicant provided any, to show that any official had acted with malice toward him, or that he had been lied to, misled, ignored, or that his case was handled in an off handed manner.  The evidence shows that he had been afforded every opportunity to present his views.  He was medically unfit for retention.  He has submitted no probative medical evidence to dispute that determination.

4.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.   

5.  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 has failed to submit evidence that would satisfy the aforementioned requirement.
  
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

___lls___  ___aao__  ___ra____  DENY APPLICATION

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

INDEX

CASE ID	AR2000035385	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000622	
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.  319	110.03	
2.	124.00	
3.		
4.		
5.		
6.