IN THE CASE OF: BOARD DATE: 1 September 2016 DOCKET NUMBER: AR20150013057 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: 1 September 2016 DOCKET NUMBER: AR20150013057 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: 1 September 2016 DOCKET NUMBER: AR20150013057 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 correction of his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) to show he was discharged on 7 February 2005 by reason of permanent disability vice expiration of term of service (ETS). 2. The applicant states, in effect: a. His Adjutant General's Office (AGO) Form 50-R (Annual Medical Certificate), dated 26 July 2004, shows he had a profile for medical issues and he was under a doctor's care. Section 1b (Supervisor) shows he was referred for further evaluation for a cardiac release and a military occupational specialty (MOS) Medical Retention Board (MMRB), this form was signed by a medical physician. b. On 26 July 2004, an AGO Form 4970-3-R (State of Mississippi, Military Department, TAGO), was submitted to Heart South which is a cardiac specialist. The result of the evaluation stated he had permanent limitations and was nondeployable; he was then placed in a Rear Detachment unit. c. The MMRB process was never administered by the physician and no acknowledgement of notification and counseling was given to him. He requested his records and none of the information was present because the process was never done. d. On 7 February 2005, he was discharged [from the Mississippi Army National Guard (MSARNG)]. This was a violation of Army policy and the MMRB process. 3. His NGB Form 22 is not consistent with the documentation of his medical issues and shows his reenlistment eligibility (RE) code as 1 meaning he was eligible for reenlistment. His discharge is inequitable because the reason for his discharge is not consistent with his well-documented evaluations, by his physicians for medical issues. 4. The applicant provides: * NGB Form 22 * AGO Form 50-R * AGO Form 4970-3-R * Memorandum * Privacy Act Release Form, dated 4 September 2014 * Letter CONSIDERATION OF EVIDENCE: 1. Having had prior Reserve service, the applicant enlisted in the MSARNG in the rank of specialist four (SPC) on 9 July 2002 for 1 year and 4 weeks. His ETS date was 7 August 2003. He attended and successfully completed training and was awarded MOS 11B (Infantryman). 2. He was assigned to Company B, 1st Battalion (BN), 155th Infantry (INF) Regiment (REG), Poplarville, MS. On 8 July 2003, he executed a DA Form 4836 (Oath of Extension of Enlistment or Reenlistment) and extended in the MSARNG for 1 year. His new ETS date was 7 August 2004. 3. Orders 119-190, dated 28 April 2004, issued by the MSARNG, released him from his unit and assigned him to Company C, 890th Engineer BN, Columbia, MS, in MOS 11B, effective 1 May 2004. 4. Orders 197-197, dated 15 July 2004, issued by the MSARNG, released him from his unit and assigned him to Company C, 1st BN, 155th INF, Biloxi, MS, in MOS 11B, effective 15 July 2004. 5. The applicant provides an AGO Form 50-R, dated 26 July 2004, wherein it shows: a. He checked the "Yes" blocks of this form to show he did have a DA Form 3349 (Physical Profile), he had medical problems, had been seen by a physician since his last medical screening, and he was taking medication. He listed his current prescription medication as blood pressure medication and that he was under a civilian doctor's care and a heart specialist. There is no evidence that shows he provided a DA Form 3349 at that time. b. Page 2 of this form shows his PULHES as 1-1-1-1-1-1. The "Needs further evaluation" block of this form was checked and annotated "needs cardiac release and MMRB" and was signed by the examining physician, Lieutenant Colonel (LTC) WLS. 6. Orders 30-1, dated 30 July 2004, issued by Headquarters (HQ), 1st BN, 155th INF REG, McComb, MS, released him from his unit and assigned him to the 1st BN (Rear), 155th INF, McComb, in MOS 11B, effective 30 July 2004. 7. The applicant provides an AGO Form 4970-3, dated 5 August 2004, wherein it shows: a. On 26 July 2004, LTC WLS completed and signed the top portion of this form and stated the MSARNG member [The Applicant] had reported that he was being treated by you [the applicant's civilian medical provider] for heart disease. It was important that they were made aware of any physical limitations caused by his condition or made necessary by his treatment. They asked [the medical provider] to take a few minutes to complete the form. b. The rest of the form was completed by his civilian physician. The portion of the form that indicated whether the individual was or was not able to perform the standard or alternate Army Physical Fitness Test (APFT) was not marked. c. The physician checked the "No" blocks of the form to indicate the applicant could not perform prolonged strenuous activity, heavy lifting over 50 pounds, or function in extreme hot or cold climate. The applicant's limitation was listed as "shortness of breath on exertion" and was permanent. He had been diagnosed with hypertension, he took medication for hypertension, the prognosis was fair, and he did not require any further evaluation to complete the examination. d. The physician checked the "No" block of the form that stated it was his/her opinion it was not safe for the applicant to be sent to any overseas area with limited or no medical treatment facilities and added the comment, "unable to tolerate heat, limitations on strenuous activity, dyspnea (shortness of breath) on exertion." He (the physician) signed the form on 5 August 2004. 8. The applicant provides and his record contains a memorandum for the MS Military Department, dated 22 January 2005, wherein the Commander, 1st BN (Rear Detachment), 155th INF, requested the applicant be discharged effective 7 February 2005. It stated his ETS was 9 July 2004 (i.e. 7 August 2004), he was in a mobilized unit, and was under Stop Loss. He was unable to deploy because of medical reasons; therefore, the Stop Loss should be lifted. 9. He was honorably discharged from the ARNG on 7 February 2005. The NGB Form 22 he was issued shows he was discharged by reason of ETS and his RE code was 1. 10. His record is void of any evidence that shows he was ever issued a permanent profile of "3" or was treated for/or diagnosed with any condition(s) that permanently prevented him from performing his military duties while serving in the MSARNG that would require referral to a medical evaluation board (MEB). 11. There is no evidence in his available record that shows he requested to reenlist in the ARNG prior to his ETS and was medically disqualified from reenlisting. 12. In a letter to his Representative in Congress, dated 16 October 2014, an official with the NGB stated the NGB carefully reviewed the applicant's inquiry. Unfortunately, the NGB did not have the authority to provide the type of relief he was requesting. His only recourse was to submit an application to the Army Discharge Review Board. 13. In the processing of this case, an advisory opinion was obtained on 31 March 2016 from the Chief, Soldier Readiness, Integrated Disability Evaluation System (IDES)/MEB, Fort Campbell, KY. The advisory official recommended denial of the applicant's request and stated, in part: a. A detailed medical review was conducted of the records provided by the Board as well as the military electronic record (ALTHA), E-Profile, and Department of Veterans Affairs (VA) medical records via the Joint Legacy Viewer (JLV). Based on the review, he concluded the applicant was not eligible for an MEB or MMRB at the time of his discharge (7 February 2005). b. Soldiers must undergo the MEB or MMRB process when they have a condition that fails retention standards in accordance with Army Regulation (AR) 40-501 (Standards of Medical Fitness). While there was some documentation that the applicant complained of shortness of breath, there is no evidence of a definitive diagnosis for these symptoms. A given symptom may have many causes, some of which may fail retention standards while other causes may not be significant. The mere presence of a symptom does not confirm a diagnosis; therefore, no MEB or MMRB was indicated at the time of his discharge. c. The applicant suggested he had an evaluation by a heart specialist but no such evaluation was presented as part of his packet for review. The applicant stated the cardiac specialist made him nondeployable; however the advisory official did not find any corroborating medical evidence to support his assertion. There was no additional medical evidence in ALTHA or JLV. 14. In a response to the advisory opinion, dated 18 April 2016, the applicant stated, in part: a. The advisory official was correct in that a Soldier must undergo the MEB/MMRB process when they have a condition that fails retention and a physician referral is all it takes for referral to an MMRB. His AGO Form 50-R clearly shows he was referred for an MMRB. b. In fact, he had conditions that failed retention standards per AR 40-501, chapter 3. He had a rotator cuff injury that he suffered prior to his discharge that he is currently receiving service-connected disability rated at 20 percent from the VA. The letter he is providing from the VA clearly shows his shoulder injury failed retention standards. c. On 8 August 2004, he was diagnosed with hypertension by a heart specialist and hypertension falls under AR 40-501, paragraph 3-21. The advisory official implies the evaluation from the heart specialist was either nonexistent or he did not take the time to provide it. However, his AGO Form 4970-3-R shows this form was given to a medical institution to treat him for heart disease and other APFT standards to determine if any physical limitations were present and they were. In addition, the memorandum from HQ, 1st BN, 155th INF (Rear) stated he was unable to deploy for medical reasons. He could not have placed himself in the Rear Detachment in order not to deploy. d. His NGB Form 22 showed his RE code as 1 meaning he was eligible for reenlistment. How could he be eligible for reenlistment if he was unable to deploy? The advisory official stated he had documentation of symptoms of shortness of breath and had nothing to date. He currently has an albuterol inhaler from the VA for shortness of breath. He had a pulmonary function test at the VA Medical Center (VAMC), Biloxi, MS. The impression was mild, restrictive lung function impairment present. e. He is receiving tramadol for right shoulder pain and medication for heart and blood pressure. He also has been treated by the VA for and diagnosed with sleep apnea. His employer wrote a letter to the VA Vocational, Rehabilitation, and Employment Counselor requesting he receive assistance on a job change to keep him employed due to his disability. 15. With his response to advisory opinion, the applicant provided: a. Page 2 of an undated letter from the VA, wherein it stated they granted him service-connected disability for his condition of right shoulder rotator cuff tendonitis and it was rated at 20% disabling effective 8 November 2011. They deferred a decision on his condition of chest pains (now claimed as heart disease) and heat exhaustion residual as additional information/evidence was needed. b. Three pages, dated 30 October 2014, from the American Sleep Diagnostics Center, Long Beach, MS, wherein it shows, in part, he underwent a diagnostic polysomnogram to determine the etiology of his complaints of erectile dysfunction (EDS), hypertension, and snoring. The impression was obstructive post-status sleep apnea with non-continuous positive airway pressure. c. A one page medical record, dated 23 November 2015, wherein it shows he underwent a pulmonary diagnostic study on that date. The spirometry demonstrated a mild, restrictive pulmonary function defect. The impression was mild, restrictive lung function impairment present; the maximal inspiratory and expiratory pressures were normal. d. Two pages of a VA medication listing, printed on 14 April 2016, wherein it showed the applicant was prescribed an inhaler, heart and blood pressure medication, topical cream for pain relief, and medication for EDS. e. An undated letter from his employer at the Lazy Magnolia Brewing Company to the VA, wherein his employer stated, in part, the applicant had a disability as a result of his time in the military and the disability limited his capacity to perform his new job duties with greater effectiveness. f. Three pages of AR 40-501, wherein he highlighted, in part: (1) Paragraph 3-12 (Upper extremities), one of the causes for referral to an MEB is shoulder - joint ranges of motion which do not equal or exceed forward elevation to 90 degrees or abduction to 90 degrees. (2) Paragraph 3-21 (Heart), one of the one of the causes for referral to an MEB is coronary heart disease associated with myocardial infarction, angina pectoris, or congestive heart failure due to fixed obstructive coronary artery disease or coronary artery spasm. (3) Paragraph 3-23 (Miscellaneous cardiovascular conditions), one of the causes for referral to an MEB is hypertensive cardiovascular disease and hypertensive vascular disease. Diastolic pressure consistently more than 110mmHg following an adequate period of therapy in an ambulatory status. g. A printout from Google, dated 13 April 2016, that showed the phone number listed on his AGO Form 4970-3-R was that of Dr. AC, of Heartsouth Cardiology, Hattiesburg, MS. REFERENCES: 1. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical DES (PDES) and governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. It states MEBs 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 qualification for retention based on the criteria in AR 40-501, chapter 3. a. This regulation further states the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature/degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade, or rating. The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before that service member can be medically separated or retired. b. Chapter 8 contains the rules and policies for disability processing of Reserve Component (RC) Soldiers. It states that a RC Soldier will be referred for medical processing through the PDES when a commander or other proper authority believes that Soldier is unable to perform the duties of his or her office, grade, rank, or rating because of physical disability. 2. The Army physical profile serial system is based primarily upon the function of body systems and their relation to military duties. The functions of the various organs, systems, and integral parts of the body are considered. An individual having a numeric designation of "1" under all factors is considered to possess a high level of medical fitness. A physical profile designator of "2" under any or all factors indicates an individual possesses some medical condition or physical defect that may require some activity limitations. A profile containing one or more numerical designations of "3" signifies the individual has one or more medical condition that may require significant limitations. A permanent profile of "3" would require referral to an MEB. 3. AR 40-501 does not show that a diagnosis of hypertension fails to meet medical fitness standards. 4. Title 10, USC, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent. Title 10, USC, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent. 5. Title 38, USC, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. The VA, which has neither the authority, nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. DISCUSSION: 1. The evidence or record confirms on 26 July 2004, after the applicant was assigned to a mobilized unit and during medical processing, he checked the AGO Form 50-R to show he had a physical profile, medical problems, took blood pressure medication, and was under the care of a civilian doctor and heart specialist. As a result, LTC WLS checked the form to show the applicant needed a cardiac release and [maybe] an MMRB. He was assigned to the Rear Detachment while awaiting medical clearance. 2. A request was sent to his civilian physician to verify his medical condition and alleged heart disease. The applicant’s physician indicated the applicant had hypertension, it was his physician’s opinion that he should not be assigned to an overseas area as he was unable to tolerate heat; he had shortness of breath upon exertion, and he did not require any further evaluation. As hypertension meets retention standards, an MMRB or MEB was not required or warranted. 3. As confirmed by the advisory official, his record is void of evidence that shows he was issued a permanent profile of "3" or was treated for/or diagnosed with a shoulder/heart, hypertensive cardiovascular or vascular disease, or any condition(s) that permanently prevented him from performing his military duties while serving in the MSARNG that would require referral to an MMRB or MEB. 4. A VA award of service-connected disability for right shoulder tendonitis that was effective 8 November 2011, almost 7 years after his discharge, does not indicate an error on the part of the ARNG or show that he was medically unfit at the time of his discharge on 7 February 2005. In addition, while he may have had hypertension that was controlled by medication, there is no evidence that shows he was ever diagnosed with heart disease or any heart condition that did not meet retention standards. 5. It is presumed the applicant’s unit chose not to have the applicant deploy as his doctor indicated he could not tolerate heat, so the “Stop Loss” was lifted and he was appropriately discharged by reason of ETS. The mere presence of an impairment does not justify a finding of unfitness because of physical disability. The reason for his discharge was both proper and just. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150013057 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150013057 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2