MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           16 MAY 2002                   
	DOCKET NUMBER:   AR2001064560

	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. Fred N. Eichorn		Chairperson	
	Mr. Roger W. Able		Member	
	Ms. Paula Mokulis		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:  Physical disability retirement in the grade of lieutenant colonel, 0-5.   

APPLICANT STATES:  That he was entitled to a mandatory Physical Evaluation Board (PEB) upon his retirement as evidenced by issue papers and supporting documents he submits with his request.  

COUNSEL CONTENDS:  Counsel did not respond to notification that the applicant’s case was available for review.  

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

The applicant’s personnel qualification record shows that he served in the Army National Guard not on active duty as an enlisted soldier from 27 December 1966 to 21 September 1974, attaining the rank of Platoon Sergeant.  On 22 September 1974 the applicant was appointed a second lieutenant in the California Army National Guard.  He remained a member of the California Army National Guard until his transfer to the Retired Reserve in 1998.  The applicant attained the rank of major, attained a master’s degree, and completed numerous military courses, to include infantry officer basic, armor and military intelligence officer advanced course, and the nonresident command and general staff college.

A 23 December 1994 Report of Investigation (Line of Duty and Misconduct Status) shows that the applicant experienced sensations associated with unstable angina on 2 November 1994 while climbing stairs while on annual training with his National Guard unit, and that he experienced several other episodes of symptoms during the duty period, and during inactive duty training on 5 and 6 November 1994.  His symptoms were evaluated at McClellan Air Force Base Hospital on 6 November 1994.  He was transferred to Sutter Memorial Hospital and subsequently underwent diagnostic coronary angiography, and a five vessel coronary artery bypass graft on 7 November 1994.  The report indicated that the applicant had submitted a statement contending that his condition was caused or at least aggravated by various stressors associated with his employment in the State Military Department.  The investigating officer found that the applicant’s condition existed prior to his entry on active duty on               1 November 1994, and that the activities he engaged in during the day and evening of 2 November 1994 were not outside the usual and customary demands of the course of normal employment.  The findings of not in line of duty, not due to own misconduct were approved by the California Army National Guard on 31 January 1995.  On 8 February 1995 the National Guard Bureau disapproved the findings, and stated that the case supported a conclusion that the applicant’s injury occurred in line of duty, EPTS (existed prior to service), aggravation.

The applicant’s Officer Evaluation Report (OER) for the period 29 September 1994 through 28 September 1995 shows that the applicant was a major, an engineer with the California Army National Guard, and shows that his rater gave him all 1’s in the 14 items in Part IVa - Professional Competence, on that report, stated that he had been a dedicated member of the staff, and had worked long hours on his own time to ensure that all his assigned tasks were completed.  He stated that the applicant had a profile for a temporary cardiac condition.  He also stated that the applicant always exceeded requirements and should be promoted ahead of his contemporaries.  The applicant’s senior rater placed him in the top block in the potential evaluation portion of that report. 
 
A 28 November 1995 report of medical examination (for a Medical Evaluation Board) shows that the applicant was qualified for medical retirement with a physical profile serial of 3 1 1 2 1 1.   In the report of medical history he furnished for the examination the applicant stated that his health was good, that he was currently recovering from open heart surgery, and that he was taking Pravacol, Ecotrine, and multiple vitamins.  That report listed his past medical ailments, injuries, and diseases, to include his cardiac catheterization and coronary artery bypass grafting in November 1994. 

On 15 December 1995 the Total Army Personnel Command at St. Louis notified the National Guard Personnel Center that the applicant had been selected for promotion to lieutenant colonel with an effective date of 23 April 1996.  That command stated that if the applicant accepted promotion and Federal recognition was not extended in the next higher grade, he would be transferred to the Army Reserve on the day following the date of termination of Federal recognition in his current grade.

A 2 January 1996 Medical Evaluation Board (MEB) narrative summary shows that the applicant had an unstable angina starting on 2 November 1994, was sent to a civilian hospital and had a cardiac catheterization on 6 November 1994 which showed severe obstruction of the left main coronary artery and a 60 percent obstruction of the right coronary artery; and obstruction of the proximal vessels that trifurcated from the left main artery.  He underwent a five vessel bypass surgery on 7 November 1994.  He recovered quickly, spending only four to five days in the hospital.  He had a normal postoperative course, and was seen three times in follow up and continued to be followed.  The narrative commented on his past medical history, stating that his cardiac risk factors were significant for cholesterol that was elevated.  It indicated that the applicant denied a history of hypertension or tobacco abuse, and stated that the applicant had generally been very healthy.  It stated that the applicant was a reservist, whose work involved travel and prior to his surgery had been under some distress because of the down sizing of his division, but he did retain his job.  The summary indicated that he was on aspirin and Lovastatin since his surgery.  It indicated that the Army was taking care of his physical examination, but by their (Air Force) records there was no significant abnormality.  The summary indicated that his electrocardiogram prior to his catheterization and after remained the same.  He underwent a left ventriculogram during his cardiac catheterization which demonstrated normal wall functional and wall motion.  He had no significant injury to his left ventricle and had a normal ejection fraction. Laboratory data were all essentially normal, except for his elevated cholesterol which was decreasing.  There was no indication of diabetes.  Chest x-ray was unremarkable.  There was no cardiomegaly or signs of congestive heart failure. 

The examining physician stated that the applicant was stable and was doing well from a cardiac standpoint, but that he was complaining of loss of range of motion in his left shoulder joint and pain, which was unusual a year after surgery, but was possible that during the operation musculoskeletal irritation could be caused resulting in some continued irritation and pain to the applicant.  He commented on the applicant’s neurologic condition of his chronic sensory disturbance in his left leg and chest from the surgery, stating that it was normal and would go away in time.  He stated that the cut nerve endings in his leg would grow back and most or all of the parasthesia and numb feelings would disappear with time, although there would be small areas of lifelong numbness directly over the scar, consistent with any scar from a laceration of any type.  

He commented on his skin and cellular disorders from approximately four feet of scar and the chronic skin sensation.  Again, stating that with time those sensations would clear.  He stated that there was indication of vision or hearing loss that might have resulted from long standing history of hyperlipidemia, but he was not aware of this, it had not been documented, and would be highly unusual. He stated that the applicant noted that he had a swelling of the left ankle up to the knee, but the physician stated that was common after bypass surgery, and because the saphenous vein was removed there could be swelling.  He stated that improved with time, and completely goes away in some people, whereas others have a mild amount of swelling which might be life long.  He stated that the nerve sensitivity and tightness generally would go away with the regrowth of the nerves back into that tissue that was irritated by the surgery.  The doctor stated that the applicant was doing well.  The applicant was aware of the need to keep his cholesterol and HDL within certain limits, and medication was helping him do that.  The doctor stated that the applicant was aware that he would remain on medications and aspirin for his coronary artery disease which was probably lifelong.  He stated that the applicant was in good health, and had no cardiac symptoms since undergoing his bypass surgery.

On 20 January 1996 the applicant was referred to a PEB.  The applicant concurred with the findings and recommendation of the MEB. 

On 27 February 1996 a PEB indicated that a review of the applicant’s records provided insufficient evidence that he had physical impairments that precluded the satisfactory performance of duty in his grade and specialty.  He was found fit for duty with a recommendation that he be returned to duty as fit.  There is no evidence showing whether or not the applicant concurred.  However, on            17 April 1996 the applicant stated that he waived his right to a formal hearing of his case and that he accepted the informal [board] findings. 

On 24 April 1996 the Total Army Personnel Command notified the commander of Weed Army Community Hospital at Fort Irwin, California, that the findings of the PEB were approved, that the applicant was determined fit for active military service, and found physically fit to perform the duties of his office, grade, rank, and specialty in accordance with his physical profile and assignment limitations. That command stated that if the applicant was scheduled for separation or retirement for reasons other than physical disability, that action could continue, and if not, the applicant should be returned to duty.

On 18 April 1996 the applicant elected to decline promotion to lieutenant colonel for one year, the date of his declination expiring on 26 October 1996.

The applicant’s OER for the period 29 September 1995 through 28 September 1996 shows that he was a real property officer with the California Army National Guard, that his rater gave him all 1’s in the 14 items in Part IVa – Professional competence, stated that he was a dedicated member of the staff and worked hours on his own time to ensure projects were completed.  He stated that the applicant had a profile for a cardiac condition.  He stated that the applicant always exceeded requirements and should be promoted ahead of his contemporaries.  His senior rater placed him in the top block in the potential evaluation portion of that report, stating that he had the potential for increased responsibility and should be promoted to lieutenant colonel.

On 19 November 1996 the applicant again elected to decline promotion to lieutenant colonel this time for three years, with the declination date expiring on 26 October 1998. 

Medical records show that the applicant was seen because he was concerned about his high blood pressure and his headache; and that he was upset and not feeling well.  He was placed on light duty on 6 October 1996.  He was again seen in December 1996.  He was seen on 8 May 1997 (because of pain to the left side of his chest and hip).  Laboratory report in July 1997 shows normal cholesterol and HDL levels.  He was seen in May 1998.  Cholesterol level in May 1998 was high.  A cardiac rehab exercise log sheet shows that he experienced some soreness in left hip while exercising and some pain in his left upper hip.  On 4 August 1998 he requested a physical examination.

On 11 July 1997 the applicant requested a profile for his cardiac physical condition, specifically requesting that his alternative physical training test be limited to only the 2.5 mile walk as a cardiovascular event with no sit-ups or push-ups.  He stated that the veins taken from his left leg were not as strong as arteries and were not to be subjected to elevated arterial pressure induced by lifting more than 25 pounds, and that sit-ups and push-ups were very painful for him to attempt.  He stated that his left ankle and lower leg had remained swollen and very sensitive from the removal of veins and the effect still made the wearing of combat boots uncomfortable.  He stated that a job related incident on              3 October 1996 induced elevated blood pressure for four days, and he was placed on light duty.  On 12 December 1996 his military cardiologist at Travis Air Force Base found that he had developed hypertension and prescribed treatment which included seven hours per week of walk/run exercises and proper diet, with new additional medications prescribed.  On 5 April 1997 he tore a muscle next to his rib cage while attempting to perform sit-ups and the sensation still bothers him.  A muscle tear had occurred.  He also irritated a nerve in his lower back to left hip joint during the walk portion of the APFT.  On 8 May 1997 he was prescribed Motrin for pain.  

On 27 August 1997 the applicant’s profile was changed to reflect that the applicant could only do the alternate physical training test, the 2.5 walk only at his own pace, and that he could do no push-ups or sit-ups.  The applicant’s commander on 12 December 1997 indicated that the profile did not require a change in his specialty or duty assignment, and indicated that he was able to perform duties to standard.    

The applicant’s OER for the 12 month period ending on 12 September 1997 again shows that his rater gave him all 1’s in Part IVa of that report, stated that his profile in no way inhibited or limited his performance of duty, that he always exceeded requirements and should be promoted ahead of his contemporaries.  His senior rater placed him in the top block in the potential evaluation portion of the report and stated that the applicant had clearly demonstrated the potential for promotion to lieutenant colonel and increased responsibility. 

The applicant’s OER for the 8 month period ending on 31 May 1998 shows that the applicant’s rater gave him all 1’s in Part IVa of the report, stated that his profile did not inhibit or restrict his performance of duty, but stated that he usually exceeded requirements and should be promoted with his contemporaries.  He stated that the applicant had done an extraordinary job in a very demanding assignment and that this ability to get the job done were qualities that made him a candidate for positions of increased responsibility.  He stated that his physical condition was the limiting factor for future military advancement.  The applicant’s senior rater placed him in the fourth from the top block in the potential evaluation portion of that report.  

On 15 August 1998 the applicant provided an issue paper, Waiver of Formal Hearing at the Army Physical Evaluation Board.  In that paper the applicant stated that he had waived a formal hearing on 17 April 1996 with the understanding that the waiver did not waive any rights to disability retirement, that he had the right to reinstate a formal hearing later after a period of no less than six months, and that the waiver gave him the opportunity to return to duty to see if either continued military service would jeopardize his health or if his medical condition would change, and that either condition would allow him to elect a formal hearing before a PEB.  He also stated that the effect of the waiver was to accept the informal findings unless there were any future changes to his medical condition.

In this issue paper the applicant went on to describe his medical condition since he waived his formal hearing, to include hypertension and the medication to control it, revision of his permanent physical profile, and participation in an APFT. He cites from Army Regulation 40-501 concerning methods of assessing cardiovascular disability, states that he was enrolled in a cardiac rehabilitation maintenace program to improve his physical condition, and states that the minimum rating given by a military service must not be less that a minimum rating mandated by the VA for a particular condition.  The applicant then went on to state those minimum ratings, e.g., coronary artery bypass, etc.  He stated that the VA service officer recommended that a separation physical be requested that would include a questionnaire that is used by the Army medical surveillance program for identifying hazardous environments that soldiers come in contact with during their military service.  The applicant continued by stating that service connected stress experience on duty continued to aggravate his hypertension condition requiring permanent medication to control his blood pressure, causing side effects, and hindering his duty performance.  The applicant cited paragraphs from Army Regulation 40-501 concerning medical fitness, states that the presumption of fitness doctrine should not disallow a medical retirement, and that the finding which allowed continued military service also allowed continued aggravation to his medical condition that eventually required permanent medication for his hypertension.  He stated that the law provides that he could remain on duty until 1 October 2002, and that a soldier who has remained in the military under  one of the programs for retention of disabled personnel will be referred to a PEB prior to separation or retirement processing.  

On 15 August 1998 the applicant provided an issue paper concerning his disability retirement rights in the recommended grade of lieutenant colonel.  He stated that both the intent of Congress and case law supported claims of Reserve officers to receive retirement benefits in their highest recommended grade in cases in which the officer is on a recommended list for promotion when found incapacitated for service by reason of physical disability contacted in line of duty. The applicant provided a chronological listing of his medical and promotion history, indicating that he had been recommended for promotion to lieutenant colonel; provided information concerning his current status, to include his hypertension; and stated that he should be advanced to lieutenant colonel on the retired list.  The applicant provided an extract from title 10, a copy of a case that went before the Court of Claims, an 8 January 1994 report of medical examination, an approved line of duty investigation,  promotion eligibility documents, copies of officer efficiency reports, and a copy of his waiver of a formal PEB. 

On 28 August 1998 the applicant completed a medical surveillance questionnaire listing the potential hazards to which he supposedly had been exposed during his military service.  

A 16 September 1998 report of medical examination shows that the applicant was not medically qualified for continuous military service with a physical profile serial of 4 1 1 2 1 1.  In the report of medical history he furnished for that examination, the applicant stated that his health was good.  He listed the medications that he was currently taking, e.g., for his cholesterol, thin blood, hypertension.  That report listed his various ailments, injuries, and operations, both past and present, to include swollen and sensitive lower left leg and ankle because of removal of veins from open heart bypass; often irritated left hip since a 1997 Army Physical Fitness Test (APFT) injury; hearing loss since 1991; heart trouble requiring cardiac bypass surgery in 1994; hypertension associated with heart disease requiring permanent medication in 1996; and frequent trouble sleeping due to heavy night sweats since 1996.  That report also indicated that he had no recurrence from his cardiac bypass, that he had full recovery.  It showed that he had a swollen left ankle, caused by the vein removal for bypass surgery, no recurrence; that he had a swollen left hip, caused by taking the APFT, that was recurring; and that he had high blood pressure, that returned to normal after taking medication.      

In a 13 October 1998 memorandum to a PEB, the applicant stated that his          17 April 1996 waiver of formal [PEB] hearing was withdrawn, and that it would be in his best interest to assert his right to a formal hearing due to changes in his medical condition, and not to accept the informal findings made on 27 February 1996.  He apparently forwarded this memorandum under a 23 October 1998 handwritten letter to the PEBLO (Physical Evaluation Board Liaison Officer) at Weed Army Community Hospital, stating that both his Army counsels made it clear to him that if his medical condition changed after a period of no less than    6 months, he should return to the PEB.  He attached a copy of the 20 October 1998 abnormal EKG, stating that he had been directed to take a cardiac stress test on 26 October 1998, which was also his separation date.  He stated that since a temporary medical hold might be needed to finish the MEB/PEB process, he would keep his MILPO (Military Personnel Office) advised. 

On 26 October 1998 the applicant underwent an exercise stress test.  The results showed a clinically/electrically negative submax Bruce ETT (Elevated Treadmill Test).  He experienced no problems during the test.
On 9 November 1998 the applicant was discharged from the California Army National Guard under the provisions of National Guard Regulation 635-100, paragraph 5a(2)(b) (completion of maximum service), and transferred to the Army Reserve Control Group (Retired Reserve).  He had almost 32 years of service for nonregular retired pay at age 60.

A 15 January 1999 laboratory report shows the applicant’s cholesterol level as 172 and his HDL level as 44. 

The applicant’s retirement points history statement, dated 28 January 1999, shows that he had over 31 qualifying years for retirement at age 60, and that for each of his retirement years, to include his retirement year beginning on            27 December 1993 through the date of his transfer to the retired Reserve, the applicant was credited with well above the necessary 50 points necessary for a qualifying year, and that he served on active duty for each of those retirement   years.  

A 30 December 1999 VA disability rating awarded the applicant a 30 percent disability rating for coronary artery disease, status post coronary artery bypass graft; a 20 percent rating for venous insufficiency, left lower extremity; a             10 percent rating for sensory peripheral neuropathy, cutaneous nerve, left lower extremity; a zero percent rating for surgical scars, chest and legs; a 10 percent rating for recurrent tinnitus; and a 10 percent rating for hypertension, all effective 5 November 1998, the date of receipt of his claim, since his discharge on          27 October 1998 was not from continuous active service. 

That VA decision indicated that the applicant was in the California Army National Guard from December 1966 to October 1998, that he did not have continuous active duty but had multiple periods of active duty, active duty for training, and inactive duty for training.  His medical records showed no evidence of diagnosis or symptoms of coronary artery disease until 2 November 1994 when he was on active duty for training and developed symptoms of angina.  He was hospitalized and found to have severe coronary artery disease.  He underwent 5-vessel coronary artery bypass graft.  Medical records showed that he had done very well since then with no recurrence of symptoms and good functional capacity.  Exercise tolerance testing prior to retirement showed no evidence of ischemia and metabolic equivalents (METs) of 10.  He reported no cardiac symptoms on VA examination.  He had some soreness in the chest wall area which caused difficulty doing push-ups.  He had no further angina or ischemia.  He did not take nitroglycerin.  Examination showed well-healed scar.  Heart had regular rhythm and rate with no murmurs, rubs, or gallops.  Chest x-ray was negative.  EKG was abnormal with left atrial enlargement.  The VA stated that although coronary artery disease was not shown to have actually been incurred during a period of active duty or active duty for training, since he developed symptoms during his period of active duty for training in November 1994, service aggravation was conceded.  The VA indicated that the applicant’s service records showed that he had persistent edema in the left lower extremity since a vein was harvested for his bypass graft in November 1994.  There was no finding of stasis pigmentation, eczema or intermittent ulceration.  On VA examination, he reported swelling of the left lower leg.  Examination showed 1+ pre-tibial edema.  There were no other abnormal skin findings; consequently, a 20 percent rating was assigned.  The VA indicated that the applicant’s service records showed that he had complaints of paresthesia and numb feeling in the left lower leg following his bypass surgery and it was indicated to be due to a cutaneous sensory nerve being cut during the vein removal for graft.  There was no evidence of motor paralysis.  On VA examination, the applicant reported numbness and tingling in the left lower leg and pain with light touch or any pressure on the area.  The examination diagnosed peripheral neuropathy and a 10 percent rating was assigned.  On VA examination, the applicant reported a history of military noise exposure from infantry weapons, C-130 aircraft and helicopters, and reported periodic tinnitus monthly for the past 5 years.  Reasonable doubt was resolved in his favor.  A 10 percent rating was assigned.  Service records showed that the applicant developed hypertension in 1996, and he was subsequently put on medication with good control.  On VA examination he was shown to be on medication.  Hypertension was considered to be related to his coronary artery disease.  A 10 percent rating was assigned.   

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 MEB 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.
DOD Instruction 1332.38 implements policy and prescribes procedures for retiring or separating service members because of physical disability.  That instruction states, in pertinent part, that eligible service members shall be provided a minimum of one opportunity for a formal PEB to fulfill the statutory requirement of Title 10 U.S.C., section 1214, for a full and fair hearing when requested by a service member being separated or retired for physical disability. Service members determined unfit by the informal PEB shall be granted a formal PEB upon request.  Active duty and Ready Reserve members determined fit do not have an entitlement to a formal PEB since a finding of fit does not cause involuntary separation for physical disability.

That instruction also provides, in pertinent part, that a service member shall be considered unfit when the evidence establishes that the member, due to physical disability, is unable to reasonably perform the duties of hi office, grade, rank, or duties, to include duties during a remaining period of Reserve obligation.  All relevant evidence will be considered in assessing service member fitness.  To reach a finding of unfit, the PEB must be satisfied that the information it has before it supports a finding of unfitness.

When referral for physical disability evaluation immediately follows acute, grave illness or injury, the medical evaluation may stand alone, particularly if medical evidence establishes that continued service would be deleterious to the service member’s health or not in the best interest of the respective service.  

If the evidence establishes that the service member adequately performed his duties until the time the service member was referred for physical evaluation, the member may be considered fit for duty even though medical evidence indicates questionable physical ability to continue to perform duty.

That instruction goes on to say that except for service members previously determined unfit and continued in a permanent limited duty status, service members who are pending retirement at the time they are referred for physical disability evaluation enter the disability evaluation system under a rebuttal presumption that they are physically fit.  The disability evaluation system compensates disabilities when they cause or contribute to career termination.  Continued performance of duty until a service member is approved for length of service retirement creates a rebuttal presumption that a service member’s medical conditions have not caused career termination.

Findings about fitness or unfitness shall be made on the basis of preponderance of evidence.  Thus if a preponderance (more than 50 percent) of the evidence indicates unfitness, a finding to that effect will be made.  If, on the other hand, a preponderance of the evidence indicates fitness, the service member may not be separated or retired by reason of physical disability.  

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.

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.  A little over one year after the applicant underwent bypass surgery he went before a MEB.  Nonetheless, the applicant apparently successfully performed his duties during the period after his operation right up to the time of the MEB, as indicated by his OER for the one year period ending on 28 September 1995.  Prior to the MEB, on 28 November 1995, the applicant stated that his health was good.  The MEB indicated that there was no significant abnormality [in his condition], and that he was stable and doing well from a cardiac standpoint – that he was in good health, and had no cardiac symptoms since undergoing his bypass surgery.  The PEB found him fit for duty, a determination that the applicant apparently did not contest, waiving his right to a formal hearing – a right that he did not have.  

2.  The applicant had some pain to his left side and hip, and in May 1998 a high cholesterol level.  He apparently developed hypertension, and tore a muscle next to his rib cage.  He had various ailments, to include a swollen and sensitive lower left leg, a condition predicted by the MEB physician, as indicated on a                16 September 1998 report of medical examination.

3.  Nonetheless, and in spite of his contentions, the applicant continued his duties, exceedingly well as evidenced by his evaluation reports.  He was able to do the alternate physical training test.  His profile did not require a change in his specialty or duty performance and he was able to perform his duties to standard, as indicated by his commanding officer.  His profile did not affect his job performance as shown by his evaluation reports.  Furthermore, the applicant attended unit training assemblies throughout his military career and served on active duty for each year of his military service, in spite of his operation, medical condition, and profile.  The applicant’s service continued right up to the date he was transferred to the Retired Reserve.   

4.  The applicant was not in a program that retained disabled personnel, as he implies.  He was not incapacitated for service by reason of physical disability, as indicated by the evidence of record.  He was found physically fit by a PEB.  Referral to a PEB prior to his retirement is not required nor warranted.   

5.  The award of VA compensation does not mandate disability retirement or separation from the Army.  The VA, operating under its own policies and regulations, may make a determination that a medical condition warrants compensation.  The VA is not required to determine fitness for duty at the time of separation.  The Army must find a member physically unfit before he can be medically retired or separated.

6.  The VA is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.  Consequently, due to the two concepts involved, the applicant's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify him for VA benefits based on an evaluation by that agency.

7.  The applicant did not have any medically unfitting disability which required physical disability processing.  Therefore, there is no basis for physical disability retirement or separation.

8.  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

__FNE_     __RWA  _  _PM____  DENY APPLICATION

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

INDEX

CASE ID	AR2001064560	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020516	
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	
2.	177	
3.	302	
4.		
5.		
6.