IN THE CASE OF: BOARD DATE: 1 March 2011 DOCKET NUMBER: AR20100018984 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests that he be shown to have been separated from active service by reason of a physical disability. 2. The applicant states he had a medical condition that rendered him unfit for continuation on active duty and he should have been afforded a medical evaluation and been medically retired. 3. The applicant provides 103 pages of service medical records dated between July and August 2003, 52 pages of post service medical records dating back to 2009, three Department of Veterans Affairs (VA) rating decisions, and a 16 July 2003 administrative separation recommendation. CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant's service records are not available; a search of the integrated Personnel Electronic Records Management System located no records for this National Guard Soldier. 3. A VA rating decision, dated 20 May 2005, lists his periods of active service as from 31 August 1981 through 19 November 1981, 2 July 1996 through 12 March 1997, and 12 November 2001 through 10 April 2002. 4. The applicant's medical records indicate he was a staff sergeant/E-6 Army National Guard Soldier serving on active duty and he was admitted to Walter Reed Army Medical Center on 8 July 2003. The admission was for atypical chest pain. The service medical records provided by the applicant cover only this hospital treatment. 5. A History and Physical Examination statement, dated 9 July 2003, shows the applicant was admitted to the hospital on 8 July 2003. He was diagnosed with possible occipital neuralgia and he was referred to audiology. The applicant stated he was dealing with a life stressor and that he was "Currently in process of attempting to retire from Army (23 years served). This process has been slow and he is currently pending possible deployment to Fort Eustis later this week (pending audiology eval)." The applicant gave a history of similar chest pain on two prior occasions. The applicant was also evaluated for tinnitus and high frequency hearing loss that had commenced several years earlier. 6. The applicant was discharged from the hospital with the diagnoses of atypical chest pain and hypercholesterolemia. His physical limitations were listed as unrestricted. 7. On 14 July 2003, the applicant was placed on a temporary physical profile with an expiration date of 13 October 2003, due to atypical chest pain. He was instructed to walk at his own pace with no physical fitness tests or exercise and a notation that indicated he was not worldwide deployable. 8. On 16 July 2003, in memorandum to the D. C. Army National Guard from Dr. B____, a psychiatrist, the psychiatrist stated the applicant was suffering from major depression due to the death of his wife in April 2002. The psychiatrist reported that the applicant was left as the sole caretaker for their two children and recommended that the applicant be separated under the regulations for a hardship discharge, involuntary separation due to parenthood, or inability to execute a Family Care Plan. 9. The applicant did not provide a DD Form 214 (Certificate of Release or Discharge from Active Duty) and the date and reason for the applicant's separation is not of record. His DD Form 149 (Application for Correction of Military Records) shows he was discharged 11 August 2005. The applicant indicates he received an honorable characterization of service. 10. A VA rating decision, dated 20 May 2005, shows the VA granted him a 10 percent disability rating for three conditions -- tinnitus, residuals of a left ankle sprain, and a depressive disorder; a 0 percent evaluation for hearing loss in the right ear; and denied him service connection for atypical chest pain, Wilson's disease, low blood pressure, and hearing loss in the left ear. 11. The post-service medical records that were provided are principally related to an August 2009 hospitalization period for slurred speech. The hospital discharge summary shows the applicant, a police officer, was diagnosed as having suffered a minor stroke due to hypertension. 12. 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. 13. Army Regulation 40-501 (Standards of Medical Fitness) provides the following at: a. paragraph 3-2b(1) provides 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; and b. paragraph 3-3b(1) provides that for an individual to be found unfit by reason of physical disability, they must be unable to perform the duties of their office, grade, rank or rating. 14. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 3-2b(2), provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit. 15. Army Regulation 15–185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR). Paragraph 2-9 states that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION AND CONCLUSIONS: 1. The applicant states that he had a medical condition that rendered him unfit to continue in an active duty status and he should have been afforded a medical evaluation and been medically retired. 2. Based on the available evidence it appears the applicant may have been separated from active duty for reasons related to the hardship caused by the death of his wife and the problems arising from the care of his two children. 3. The applicant's 2003 hospital admission history notes indicate he was in the process of retiring when he was hospitalized. He was released from the hospital with no restrictions. However, on 14 July 2003, he was given a temporary profile for chest pain. He was to walk at his own pace with no physical fitness tests or exercise. 4. Neither the medical doctors nor the attending psychiatrist found the applicant unfit for duty or that he was suffering from a condition warranting separation processing through medical channels. The applicant's continued performance of duty shows a presumption of fitness. 5. An award of a VA rating does not establish entitlement to medical retirement or separation. The VA is not required to find unfitness for duty. Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected. More importantly in this case, the VA denied the applicant a disability evaluation for the atypical chest pain, the condition he alleges warrants a medical separation. 6. The applicant's post service medical records are for a stroke and hypertension. However, these conditions surfaced several years after he was discharged and neither of these conditions was noted in the service medical record that were provided. Therefore a correlation between these conditions and his period of active duty has not been established. 7. The applicant has failed to establish an error or injustice in his reason for separation, therefore his application should be denied. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X____ ____X____ ____X____ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _______ _ __X_____ ___ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ABCMR Record of Proceedings (cont) AR20100018984 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20100018984 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1