IN THE CASE OF: BOARD DATE: 24 May 2016 DOCKET NUMBER: AR20150002370 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ___x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 24 May 2016 DOCKET NUMBER: AR20150002370 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. IN THE CASE OF: BOARD DATE: 24 May 2016 DOCKET NUMBER: AR20150002370 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, in effect, the separation authority and narrative reason for separation be changed on her DD Form 214 (Certificate of Release or Discharge from Active Duty) to show she was separated due to a medical disability. 2. She requests a Medical Evaluation Board (MEB) and separation through medical channels. She also requests a personal appearance before the Board. 3. The applicant states: a. She was honorably discharged under the provisions of Army Regulation 635-200 ( Active Duty Enlisted Administrative Separations), chapter 13. b. Chapter 13, paragraph 2, states, "Initiation of separation proceedings is required for Soldiers without medical limitations who have two consecutive failures of the Army Physical Fitness Test (APFT) or who are eliminated for cause from Noncommissioned Officer Education System courses, unless the responsible commander choses to impose a bar to reenlistment." c. She did not fall under the provisions of paragraphs 13-2 and 13-4. She was not considered by an MEB. She was not "without medical limitations" and did not have any APFT failures at the time of separation processing. d. Medical channels that should have been taken over her administration separation were ignored. 4. She states, in effect, that she is seeking this change because she had a massive coronary infarction and was fully profiled with convalescent leave for 1 month. She returned to her unit on 20 October 2009 (still fully profiled) and by 1100 hours she returned to the hospital for acute cardiac arrest. She received another month of convalescent leave under the same profile. When she returned to her unit in November at 0545 hours for physical training and accountability formation she was sent to the first sergeant's office where she learned of her chapter 13 action. 5. The applicant provides copies of: * William Beaumont Army Medical Center (WBAMC) Emergency Room (ER) admission records * Radiological Reports * three Patient Lab Inquiries * Progress Notes * Electrocardiogram (EKG/ECG) readings * Discharge Summary Notes * DD Form 214 * Army Regulation 635-200, pages 47 and 48 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 the cases 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. 2. The applicant enlisted in the Regular Army on 24 April 2008 and she held military occupational specialty (MOS) 14T (Patriot Operator). 3. She provides copies of: a. WBAMC ER admission records and a Radiological Report showing she was admitted on 22 September 2009 and diagnosed with non-segment elevation myocardial infarction. She underwent a left heart cardiac catheterization and coronary arteriography using two catheters on the same day. b. Three Patient Lab Inquiries, dated between 22 and 24 September 2009 (self-explanatory). c. Progress Notes showing she was hospitalized in the intensive care unit (ICU) from 22 through 24 September 2009. She was resting comfortably and denied continued chest pain. d. EKG/ECG readings (self-explanatory). e. Discharge Summary Notes showing she was discharged from the hospital on 24 September 2009 with instructions on medications, exercise, diet, activities, and arrangements for cardiology follow-up and cardiac rehabilitation prior to discharge. 4. Her records contain: a. A memorandum, dated 9 October 2009, from the Chief, Adjudications Division, U.S. Army Central Personnel Security Clearance Facility, advising the applicant and her chain of command of their intent to deny her security clearance. b. A DA Form 4856 (Developmental Counseling Form) showing she was counseled on 2 November 2009 on the denial of her security clearance and as a result she was unqualified for further military service in her current MOS. Based on the foregoing and her performance record while assigned to the unit, it was determined that she met the criteria for separation outlined in Army Regulation 635-200, chapter 13-2. She was flagged and advised that she would not receive any favorable personnel actions during her pending elimination. 5. On 1 December 2009, the applicant's company commander notified the applicant of the proposed separation action under the provisions of Army Regulation 635-200, paragraph 13-2, for unsatisfactory performance. The commander cited the basis for this action was the denial of her security clearance, which disqualified her for further military service in her current MOS. The applicant was advised of her rights. 6. On 2 December 2009, after consulting with counsel, the applicant acknowledged receipt of the proposed separation action with an honorable discharge. She waived her rights and elected not to submit a statement in her own behalf. The applicant’s defense counsel requested reconsideration of the proposed administrative separation and a rehabilitative transfer for the applicant. According to the applicant, she received a financial waiver to enlist in the Army. Given that the Army was on notice that she had debt prior to enlistment, it was unfair to separate her on the basis of that debt, particularly if she had made diligent efforts to pay off that debt. 7. On 2 December 2009, the applicant's battalion commander recommended a waiver of a rehabilitative transfer and approval of the applicant's discharge with an honorable characterization of service. 8. On 3 December 2009, the separation authority approved the applicant’s honorable discharge. 9. She was discharged accordingly on 23 December 2009. She was credited with completing 1 year and 8 months of net active service. 10. In an advisory opinion, dated 2 February 2016, an MEB Physician, Charles R. Darnell Army Medical Center Health Care System, stated a detailed medical review was conducted of the records provided as well as the electronic (applicant’s) medical records. He concluded that the applicant was not eligible for an MEB for her heart condition. He stated: a. The applicant was honorably discharged from military service for unsatisfactory performance. Approximately 3 months prior to her discharge from the military she suffered a mild myocardial infraction. She had no prior cardiac history and no other cardiac events ensued thereafter according to the records. b. On 22 September 2009, she presented herself to the ER with chest pain. He detected that her symptoms were accompanied by EKG changes suggestive of myocardial ischemia in the inferolateral leads with an elevated serum Troponin. She was taken to the cardiac catheterization laboratory by a cardiologist. A coronary angiography revealed she had normal coronary arteries and a preserved left ventricular (LV) systolic function. The LV ejection fraction was 64 percent, with inferior hypokinesis and normal LVEDP. No As, MR, VSD, or AO dissection noted. The overall assessment was a 25-year old active duty female status post inferior STEMI and cardiac catheterization that identified no lesions. c. The applicant was admitted to the WBAMC ICU on 23 September 2009. Her serum Troponin I normalized, she ceased complaining of chest pain, and was discharged the following day. On 24 September 2009, the WBAMC discharged her to home independent of all activities of daily living, ambulating, without any ambulatory assist device, and with Toprol XL, Ramipril, and Valium as needed for anxiety. Arrangements were made for cardiology follow-up and cardiac rehabilitation prior to discharge. She received convalescent leave and afterwards returned to duty on 13 October 2009. Again, she had no prior cardiac history and no other cardiac events ensued thereafter according to the records. d. The mere presence of a condition did not constitute a disability, nor did it result in an automatic unfit determination. The condition must also have been shown to interfere with the service member's (SM) ability to fulfill MOS duties (Department of Defense Instruction 1332.18, Appendix). The applicant suffered a mild interior STEMI, but no definitive diagnosis or cause for that myocardial infraction was found. She had no physical limitations whatsoever from a cardiac standpoint. e. There was no evidence to demonstrate that her condition interfered with her military duties. She served the remainder of her military time without any signs or symptoms of impairment due to her heart condition. She served until the date of her military discharge. She mentioned returning to the hospital for a second acute cardiac arrest following leave, but no records of that event were identified. f. Army policies for trial of duty, profiling, and referral for an MEB and Physical Evaluation Board (PEB) are outlined in Army Regulation 40-501, paragraph 3-25. The paragraph stated "Trial of duty would be based upon a cardiologist's recommendation. If the cardiologist upon their impression did not recommend a trial of duty, it was not given. If after the cardiac event the SM was asymptomatic without objective evidence of myocardial ischemia, or other cardiovascular functional abnormalities the SM was considered NYHA I (New York Heart Association Functional Class I). If the SM was considered NYHA I, and there were no physical or assignment restrictions, the SM could be returned to duty without referral to an MEB." g. The applicant suffered a minor myocardial infraction 3 months prior to separation. She had no physical limitations whatsoever from a cardiac standpoint. She was evaluated in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3. Based on the circumstances and events surrounding the applicant, she did not meet the requirements for referral to an MEB. She was appropriately returned to duty and not referred to an MEB. 11. The advisory opinion was provided to the applicant on 17 February 2016 for acknowledgement/rebuttal. She did not respond. REFERENCES: 1. Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel. Paragraph 13-2 of the regulation stated commanders would separate a Soldier for unsatisfactory performance when it was clearly established that the Soldier would not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier. The seriousness of the circumstances was such that the Soldier’s retention would have an adverse impact on military discipline, good order, and morale. The service of Soldiers separated because of unsatisfactory performance would be characterized as honorable or under honorable conditions (general) as warranted by their military records. 2. Army Regulation 40-501, in effect at the time, governed medical fitness standards for retention and separation, including retirement. Chapter 3 of the regulation specified the various medical conditions and physical defects which could render a Soldier unfit for further military service. 3. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, set for the policies for the disposition of Soldiers found unfit because of physical disability reasonably to perform the duties of his/her office, grade, rank, or rating. The regulation stated: a. The Physical Disability Evaluation System assessment process involved two distinct stages: the MEB and PEB. The purpose of the MEB was to determine whether the Soldier's injury or illness was severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB was an administrative body possessing the authority to determine whether or not a service member was fit for duty. A designation of "unfit for duty" was required before an individual could be separated from the military because of an injury or medical condition. A Soldier who was determined to be unfit for duty due to disability were either separated from the military or were permanently retired, depending on the severity of the disability and length of military service. b. Paragraph 3-1 – the mere presence of a medical impairment did not in and of itself justify a finding of unfitness. In each case, it was necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier could reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties would invariably result in a finding of fitness for continued duty. A Soldier was physically unfit when a medical impairment prevented reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. c. Paragraph 3-2b (Processing for Separation or Retirement from Active Duty) disability compensation was not an entitlement acquired by reason of service-incurred illness or injury; rather, it was provided to Soldiers whose service was interrupted and they could no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. When a Soldier was being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his/her rank or grade until the Soldier was scheduled for separation, created a presumption that the Soldier was fit. The presumption of fitness could be overcome if the evidence established that— (1) The Soldier was, in fact, physically unable to perform adequately the duties of his or her office, grade, rank or rating for a period of time because of disability. There must be a causative relationship between the less than adequate duty performance and the unfitting medical condition or conditions. (2) An acute, grave illness or injury or other significant deterioration of the Soldier’s physical condition occurred immediately prior to, or coincident with processing for separation or retirement for reasons other than physical disability and which rendered the Soldier unfit for further duty. 4. Army Regulation 15-185 (ABCMR), paragraph 2-11, states applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing (personal appearance) whenever justice requires. DISCUSSION: 1. With respect to a medical disability separation through an MEB: a. The evidence shows the applicant was seen in the ER on 22 September 2009. She was diagnosed and treated for a non-segment elevation myocardial infarction. She was discharged from the hospital to home on 24 September 2009 and was placed on convalescent leave. She returned to her unit on 13 October 2009. b. In October 2009, she was denied a security clearance. Upon notification of that action, the applicant's company commander initiated action to separate the applicant under the provisions of Army Regulation 635-200, paragraph 13-2, for unsatisfactory performance. The applicant consulted with counsel and acknowledged the proposed separation action. c. She returned to duty on 13 October 2009 and served until the date of her military discharge without any signs or symptoms of impairment due to her heart condition. The separation authority approved her discharge and she was discharged on 23 December 2009. d. There is no evidence of record and she provided none to demonstrate that her medical condition interfered with her military duties and she should have been processed due to a physical disability. She did not provide any service medical records to corroborate her unfitness at the time of separation. By regulation, the mere presence of a medical impairment did not in and of itself justify a finding of unfitness. A Soldier is considered medically unfit when the evidence establishes the Soldier is unable to reasonably perform the duties of his or her office, grade, rank, or rating. e. Without evidence to the contrary, her administrative separation was accomplished in compliance with the applicable law and regulation in effect at the time with no indication of procedural error which would have jeopardized her rights. 2. With respect to a personal appearance before the Board, by regulation, an applicant is not entitled to a hearing before the Board. Hearings may be authorized by a panel of the Board or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant are sufficient to render a fair and equitable decision at this time. As a result, a personal appearance hearing is not warranted to serve the interest of equity and justice in this case. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150002370 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150002370 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2