MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:           26 September 2000                  
	DOCKET NUMBER:   AR2000039180

	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. Arthur A. Omartian 		Chairperson	
	Mr. Melvin H. Meyer 		Member	
	Mr. Thomas F. Baxter 		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, the applicant requests physical disability retirement or separation. 

APPLICANT STATES:  That he experienced a dizzy spell and fell to the ground while getting ready for work.  He states that he had spent the previous day,          conducting a clothing turn-in for his ROTC unit, loading, unloading, and transporting clothing weighing more than 900 pounds in 93 plus degree weather with over 90 percent humidity.  The original line of duty investigation dated          1 July 1997 found that his illness was not in line of duty – not due to his own misconduct.  However, pursuant to his appeal, the Office of The Surgeon General changed the findings to “in the line of duty.”  Nonetheless, he was never given a disability rating by the Army, but instead was declared medically disqualified for further service on 25 July 1996 and transferred to the Retired Reserve.  He should have received a Medical Evaluation Board (MEB) and a Physical Evaluation Board (PEB).  An injury incurred in the line of duty while in an active duty status requires a disability rating. 

He states that he saw doctors at Ireland Army Hospital in September and October 1995 after his stroke, and was cleared for retention in the Army.  Furthermore, he received a complete medical examination after those time frames, and was declared fit for retention, with the results of the examination being sent to the Army Reserve Personnel Center (ARPERCEN) at St. Louis.  He was then informed that he was medically disqualified because he did not meet the Army standards for retention.  

He states that he suffers from numerous ailments that were brought on by his stroke.  However, since the initial findings that the stroke was not in line of duty, he was deprived of proper medical care.  Because he is now in the Retired Reserve he was informed that the proper course of redress was to apply to this Board.

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

The applicant was a master sergeant assigned to the Army Reserve Control Group (Reinforcement), when he was ordered to active duty for special work (ADSW) for 58 days at the University of Louisville School of Medicine at Louisville, Kentucky, with a reporting date of 2 August 1995.

The applicant’s four NCO evaluation reports prior to August 1995 show that he did have a medical profile, but that his profile did not prevent his performance of his assigned duties.  

A DA Form 2173 (Statement of Medical Examination and Duty Status) shows that the applicant was admitted to the Audobon Regional Medical Center at approximately 2230 hours on 16 August 1995 after suffering a stroke at approximately 0700 hours on that date while getting ready for work.

The applicant was discharged from the Audobon Regional Medical Center.  A medical document from that center, dated 24 August 1995 shows the applicant’s discharge diagnosis as a posterior inferior cerebellar arteriolar infarct; and arteriosclerotic arterial vascular disease and posterior left vertebral artery occlusion.  That diagnosis also indicated that he had diabetes mellitus. 

A 28 September 1995 report of medical examination shows that the applicant was qualified for retention with a physical profile serial of 3 1 3 2 1 1.  That report indicated that he experienced dizziness on 16 August 1995, and had a diagnosis of vertebral artery occlusion.  It also showed that the applicant had arthritis, a hearing loss, low back pain, right knee pain, and diabetes, among  other ailments.  In the report of medical history he furnished for the examination, the applicant stated that he was taking two medications.  That report showed that he was being treated for diabetes, and also showed treatment at the Audobon Regional Medial Center from 16-23 August 1995 for a stroke.

The applicant’s NCO evaluation report ending in September 1995 shows that his medical profile did not prevent his performance of his assigned duties.  

On 22 January 1996 the ARPERCEN notified the applicant that he did not meet the standards for retention in the Army Reserve because of his diabetes mellitus requiring hypoglycemic drugs in addition to restrictive diet for control.
He was transferred to the Retired Reserve on 25 July 1996.  The applicant’s NCO evaluation report ending in July 1996 shows that his medical profile did not prevent his performance of his assigned duties.

In a 26 February 1997 letter to the Railroad Retirement Board, a doctor stated that the applicant had been under his care for type II diabetes, which was currently controlled by medications, diet, and exercise.  That doctor also stated that the applicant’s other medical problems included a previous stroke in 1995 affecting his balance, hypertension, and hypercholesterolemia.  He stated that the applicant also had a coronary artery bypass graft in November 1996, and had reported that an episode of ventricular tachycardia occurred in early            February 1997. 

In a 4 June 1997 letter, a coworker stated that the applicant complained about his arm hurting all the time when he returned to work on the railroad in the late summer of 1995.  He stated that the applicant told him that he had a mild stroke while on active duty, but did not want to tell anyone for fear of losing his job.  He stated that the applicant looked more tired than normal in 1996, and that he had coronary bypass surgery in November 1996, and had not yet returned to work.  In a 6 June 1997 letter a doctor stated that the applicant had been under his care over the years for diabetes. 

A 1 July 1997 line of duty investigation shows that the applicant’s stroke on 
16 August 1995 was found to be not in line of duty – not due to his own misconduct. The investigating officer found that the applicant’s condition was preexisting and that his duties while on active duty were such as not to warrant a determination of service aggravation.  The applicant rebutted those findings, stating that the events of the day prior to the day that he had his stroke should be taken into consideration, that his doctors do not allow him to be outdoors if temperature is in excess of 85 degrees with high humidity, and that the uneasiness he felt on 15 August 1995 triggered the brain stem infarct of            16 August 1995.  

In a 6 January 1998 memorandum, the chief of neurology services at the Army Medical Department Activity at Fort Knox, Kentucky, indicated that the applicant’s past medical history was significant for arthritis, non insulin dependent diabetes mellitus, and low back pain.  She stated that his factors for stroke included age, hypertension, and diabetes.  Additional stroke factors included cardiac disease and high cholesterol.  Heat was not a medically recognized risk factor for ischemic stroke.  She concluded that the applicant’s stroke was most likely a result of cerebral atherosclerosis relating to his preexisting risk factors of age, hypertension, and diabetes; and that there was no evidence that his diabetes or hypertension were significantly aggravated by his periods of active duty. 

In an undated memorandum the chief of neurology services at Ireland Army Community Hospital also stated that the applicant’s stroke was most likely a result of cerebral atherosclerois related to his preexisting risk factors of diabetes and hypertension, and that neither of those factors were significantly aggravated by his periods of active duty. 

The findings of the line of duty investigating officer were approved on                 30 January 1998.

On 4 February 1998 the applicant appealed the findings of the line of duty investigation, stating that the investigation failed to take into consideration the 

effects of the extreme physical stress that he was under the day before his stroke.  He stated that according to his doctor, the physical activity that he was involved in prior to his stroke may have been a precipitating factor.  He stated that his doctor also stated that although exposure to heat does not produce ischemic disease, it might have been a precipitating factor which produced the stroke because of the underlying disease process of his diabetes and hypertension.  The applicant stated that the evidence relied upon by the investigating officer did not constitute the substantial evidence necessary to overcome the presumption that the injury occurred in the line of duty.  

On 2 December 1998 the Total Army Personnel Command notified the applicant that the Office of The Surgeon General opined that although the combination of heat, humidity, diabetes, and hypertension did not directly cause the stroke, they very likely did play a role in precipitating it.  The applicant’s appeal was approved and the finding of the line of duty investigation was changed from “not in line of duty –not due to own misconduct (EPTS, no service aggravation),” to “in line of duty (EPTS, service aggravation).” 

Army Regulation 600-8-1 prescribes the policies and procedures concerning line of duty determinations.  Paragraph 41-8 of that regulation, in pertinent part, states that the term “EPTS” added to a medical diagnosis shows that there is substantial evidence that the disease or injury, or underlying condition, existed before military service or it happened between periods of active service.  The doctor, during examination and treatment of the member, usually determines an EPTS condition.  He annotates the medical records as to whether the condition existed prior to service.  If a line of duty finding is required, information from the medical records will be used to support a finding that an EPTS condition was or was not aggravated by military service.  If an EPTS condition was aggravated by military service, the finding will be “in line of duty”.

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 635-40 establishes the Army physical disability evaluation system and sets forth policies, responsibilities, and procedures that apply in determining whether a soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  It provides for medical evaluation boards, which are convened to document a soldier’s medical status 

and duty limitations insofar as duty is affected by the soldier’s status.  A decision is made as to the soldier’s medical qualifications for retention based on the criteria in AR 40-501, chapter 3.  If the MEBD determines the soldier does not meet retention standards, the board will recommend referral of the soldier to a PEB.

Physical evaluation boards are established to evaluate all cases of physical disability equitability for the soldier and the Army.  It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of soldiers who are referred to the board; to evaluate the physical condition of the soldier against the physical requirements of the soldier’s particular office, grade, rank or rating; to provide a full and fair hearing for the soldier; and to make findings and recommendation to establish eligibility of a soldier to be separated or retired because of physical disability.

Army Regulation 635-40, paragraph 3-2b states in pertinent part that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  

Army Regulation 635-40 provides that according to accepted medical principles, certain abnormalities and residual conditions exist that, when discovered, lead to the conclusion that they must have existed or have started before the individual entered military service.  

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. 

The Army Reserve Personnel Command Surgeon has previously advised the Board that he routinely reviews the medical records of Reserve personnel to determine if they have any medical condition which would be further aggravated by the rigors of military service, and uses that premise as one basis to determine fitness for retention.   

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’s stroke in August 1995 was determined to be in line of duty, in that the combination of heat, humidity, diabetes, and hypertension played a role in precipitating his stroke, although those combinations did not directly cause his stroke.  Nevertheless, the applicant was found qualified for retention by medical personnel in September 1995, albeit with a physical profile serial of 3 1 3 2 1 1.  Additionally, his NCO evaluation report ending in September 1995 indicated that his medical profile did not prevent him from performing his assigned duties.   

2.  Contrarily, the applicant was determined to be unfit for retention.  However, this determination was made by the ARPERCEN Surgeon after receipt of the report of medical examination, because of his long-standing diabetic condition which predated his entry on active duty.  The fact that he suffered a stroke did not make him unfit for retention, but his diabetes requiring drugs and a restrictive diet, did.  There is, however, no evidence that the applicant’s diabetes was aggravated during his active duty tour.    

3.  Despite the applicant’s contention, there is no requirement for a MEBD for an injury incurred in the line of duty; consequently, there is no requirement for a disability rating because of an injury or disease incurred in line of duty.  The applicant did receive a thorough medical examination and was found to be medically fit for retention.  The ARPERCEN Surgeon determined otherwise, but not because of any condition he suffered while entitled to basic pay.   
 
4.  The applicant is not entitled to physical disability retirement or separation. 

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

6.  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.

7.  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

___mhm_  ___tfb___  ___aao__  DENY APPLICATION

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

INDEX

CASE ID	AR2000039180	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000926	
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.  177	108.00	
2.		
3.		
4.		
5.		
6.