BOARD DATE: 30 April 2020 DOCKET NUMBER: AR20180015592 APPLICANT REQUESTS: The applicant requests to change his honorable discharge to a medical retirement, and he requests a personal Board appearance. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Self-written letters * Letters from spouse, family, and service members * Letter to the President * Medical documents (military service/Veterans Administration (VA)) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states: a. He needs his discharge to be upgraded to reflect his medical retirement status that he was told he would receive by two medical review boards. He was told by two medical review boards in Colorado that he should have never been allowed in the service and that he was to be medically retired. He was told the VA would take care of it, and they have not. All of his medical records have been submitted to the VA. b. This letter is being written in response to the form that was sent to me from the Department of the Army after sending in 21 letters to President Trump in regards to my service and service connected disabilities while serving in the Army. He has been attempting to right this wrong for almost 28 years and have written every sitting President since 1990 in regards to this matter and this is the first response that he has ever received. c. In 1990 he was sent to Fitzsimmons Army Medical Center (FAMC) in Denver, Colorado as it was discovered that his heart was on the wrong side of his chest, which had already been noted when he entered the service as he had had clearly noted this on his induction paperwork. He had also noted that he had a heart murmur, yet passed the standard physical and was allowed to serve without any further testing being done. d. At Fitzsimmons, he was subjected to multiple examinations over the course of multiple months. After the test had been conducted, he was found to not only have a heart that was located on the right side of his body, but that all of his internal organs are completely reversed. Once this was discovered, he was subjected to more testing as he was told that he had complete Situs Inverses with a dextral cardia totalis with possible Kartageners Syndrome. e. After being ran through the massive amounts of testing and analysis of the exams, he was sent to a Medical Review Board and was informed, that he should have never been allowed to be in the service and that he was going to be medically retired from the service. He was then sent back to his room and waited another week and was then sent to a second Medical Review Board and was told again that he should not have been allowed to enter the service and that he would be medically retired from the service. At this board, he asked what that meant to him, and he was informed that it would be like he had been in the service for 20 years and that he would receive a retirement check and full benefits. He again was returned to his room and by this time it was late August of 1990. f. Before he knew it, he was informed that he would be sent back to California for out-processing due to his ETS (expiration of term of service) date coming up in October. He asked about the retirement paperwork and was informed that once he out-processed from the Army that it would be handled by the Department of Veteran Affairs (VA) and that he was to contact the representative for the VA and it would be taken care of. That has not been the case. g. In the correspondence from the Department of Army, it stated that he had to prove that there was an error on the DD Form 214 and once he proved it, it would be corrected. He has provided the VA with all the documentation that was needed to resolve this matter and yet it remains unresolved. He is asking that the Board request all medical evaluations and records for the period of 1 January to 3 October 1990, as he has already done so and to date he has never received them. All records that pertain to his health and welfare since October of 1990 are located at the Houston VA office, as he has been working on service-connected disabilities with them for the same amount of time that he has been trying to get his medical retirement. h. Under Title 38 of the U.S. Code he was deemed fit for service and was accepted into the service as being fit both mentally and physically. No notation was ever noted in his induction records of any defects or other abnormalities and yet when it was discovered in Colorado while at Fitzsimmons that he had this condition, he was told that he would be medically retired and that he should have never been allowed to serve. His spouse was with him through this entire ordeal and has since passed away in August and had she been here she would confirm all that has been written in the letter. He has no reason to fabricate such an ordeal and the Army should not have any reason to cover up what has been done. If need be, he is willing to subject himself to a polygraph exam to prove what he has written is in fact the truth. 3. On 1 May 1986, in connection with his enlistment into the Army, a Report of Medical History shows the applicant indicated he had a heart murmur. The physician entered a comment pertaining to the applicant’s heart issues and stated, the applicant had heart issues all of his life but caused no disability from any activities. A medical examination also shows the applicant qualified for enlistment into the Army. 4. The applicant enlisted in the U.S. Army Reserve (USAR) on 1 May 1986, and further enlisted in the Regular Army on 3 October 1986 for a period of 4 years. 5. His record contains a Weed Army Community Hospital, Fort Irwin, CA, Narrative Summary (Clinical Resume) dated 24 April 1990 that shows, in pertinent part: * the applicant was a 25 year old male who reported for Chapter Physical Evaluation with findings of a right-sided heart murmur and dextrocardia with situs inversus * his history was significant for tympanic membrane perforation approximately 10 years ago and hemorrhoidectomy in August 1989 * a physical examination revealed a 2/6 ejection type murmur noted at the right lower sternal border with radiation noted approximately 4 centimeters right of the xyphoid process * a chest x-ray revealed dextrocardia and evidence of situs inversus with a right gastric bubble and hepatic parenchymal density in the left upper quadrant of the abdomen * the applicant was diagnosed with (1) situs inversus; (2) right-sided cardiac murmur; and (3) recurrent sinusitis/bronchitis, possibly secondary to mucociliary dysfunction, clinical and laboratory data did not appear to meet the criteria for Kartagener's Syndrome * the applicant was to be transferred via Medevac to Fitzsimons Army Medical Center, Aurora, Colorado, for evaluation by the Pulmonary Department for consideration of mucociliary biopsy; his wife was to accompany him on transfer 6. On 6 May 1990, the applicant was discharged from FAMC, Aurora, Colorado. The Medical Record – Supplemental Medical Data form shows a final diagnosis of probable Kartagener’s Syndrome, chronic sinusitis, mild bronchitis, erogenous obesity, and dextrocardia/situs inversus. There was no indication of him being referred to a medical board for medical retirement. 7. On 2 October 1990, the applicant was honorably released from active duty based on expiration term of service and transferred to the USAR Control Group (Reinforcement). He completed 4 years of net active service this period. 8. On 12 November 1991, the VA notified the applicant that they could not grant his claim for payment of disability benefits. The VA stated, in pertinent part: a. The disabilities of rhinitis and bronchitis were service-connected but they were less than 10% (percent) disabling and compensation was not payable. There was entitlement to necessary treatment by the VA for any service-connected disability. b. The evidence did not establish service connection for bronchial asthma, fracture of right foot, and situs inversus. The VA reviewed service medical records from 1 May 1986 to 19 September 1990, and the examination conducted on 18 July 1991, at the VA Medical Center, Waco, Texas. c. Service connection was denied for bronchial asthma because this condition was not shown during active military duty. A right foot fracture was not shown by the evidence of record. Service connection was denied for a right foot fracture. d. The applicant was either born with situs inversus or it developed normally. It was not the result of a disease or injury and was not aggravated by his active military service. 9. On 11 October 1994, the applicant was honorably discharged from the USAR. 10. In support of his case, the applicant provided medical documents from the VA and his military service record showing his medical history, diagnosis, treatments, prescriptions, and VA ratings decisions that will be reviewed by the Army Review Boards Agency medical staff and the ABCMR board members. He also provided self- written statements, rebuttal letters, and letters to the President. He further provided letters from his spouse that highlighted he was diagnosed by the VA and taking medication for post-traumatic stress disorder (PTSD); and letters from members he had served with in the military, which will be provided to the Board. 11. The applicant contends he was told that he would receive a medical retirement by two medical review boards; however, he provides no evidence and his record contains no evidence of his claims. 12. 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). In pertinent part, it states that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The ABCMR will decide cases based on the evidence of record. It is not an investigative agency. 13. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. The mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability. The regulation states medical evaluation boards 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 Army Regulation 40-501 (Standards of Medical Fitness), Chapter 3. 14. Title 10, U.S. Code, chapter 61, provides for disability retirement or separation for a member who is physically unfit to perform the duties of his or her office, rank, grade, or rating because of disability incurred while entitled to basic pay. 15. Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has less than 20 years of service or a disability rated at least 30 percent. 16. 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. The fact that the VA, in its discretion, has awarded the applicant a disability rating is a prerogative exercised within the policies of that agency. It does not, in itself, establish physical unfitness for Department of the Army purposes. 17. 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. 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. 18. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant's records in iPERMS, the Armed Forces Health Longitudinal Technology Application (AHLTA), Health Artifacts Image Management Solutions (HAIMS) and the VA's Joint Legacy Viewer (JLV) and made the following findings and recommendations: The applicant is requesting medical retirement and contends he was promised such by 2 medical review boards. On the 01 May 1986 Report of Medical History, the applicant endorsed ‘nose trouble’ and ‘heart murmur’ present all his life which caused him no disability. On 25 April 1990 the applicant underwent a comprehensive Chapter Physical Evaluation for separation and was confirmed to have Dextrocardia (a heart in the right instead of left chest) with murmur, Situs Inversus (organs on the opposite side), and Recurrent Sinusitis/Bronchitis. During the evaluation, he also reported recurrent back pain, intermittent leg cramps and occasional knee and foot pain with impact type exercises. The disposition was transfer via medevac to Fitzsimons Army Medical Center for evaluation by the pulmonary department for consideration of mucociliary biopsy. He was admitted there from 27 April to 06 May 1990 and further diagnosed with Probable Kartagener Syndrome, Mild Bronchiectasis, and Exogenous Obesity. Disposition was return to Ft Irwin. The sperm electron microscopy was still pending at that time, but later found to be normal and he was to see ENT for consideration of the mucociliary biopsy on 09 Jul 1990. There were no AHLTA, HAIMS nor iPERMS records for review. During service, the applicant was also seen for back pain, neck pain, sinus headaches, elevated blood pressure, blisters on right foot, plantar fasciitis left ankle (basketball injury), hemorrhoids, left swollen hand (football injury), and depression (psych referral given). He was also diagnosed with Compound Myopic Astigmatism. JLV search shows the applicant is service connected for sinusitis, maxillary, chronic (30%), tinnitus (10%), asthma, Bronchial (0%) and hemorrhoids (0%). Review of submitted service treatment records indicates that none of these conditions resulted in significant duty limitations, permanent profiles or extended/recurrent hospitalizations. Also based on review of available records, the preexisting (congenital) heart condition was not permanently aggravated by service. As such, referral to IDES for consideration of medical disability is not indicated. 19. In regards to the applicant's request for a personal appearance, Army Regulation 15-185, states an applicant is not entitled to a hearing before the Board; however, the Board or the Director of ABCMR may authorize a personal appearance. 20. In reaching its determination, the Board can consider the applicant's petition, service record, and statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: 1. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 2. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The applicant’s contentions, the military record, a medical advisory opinion, VA documents provided by the applicant, and regulatory guidance were carefully considered. Evidence of record shows service treatment records indicated that none of the conditions listed resulted in significant duty limitations, permanent profiles or extended/recurrent hospitalizations. The record also shows, the preexisting (congenital) heart condition was not permanently aggravated by service. Based upon a preponderance of the evidence, and notwithstanding the recommendation of the advisory official, the Board determined there is insufficient evidence that shows a referral to the Integrated Disability Evaluation System (IDES) for consideration of medical disability was warranted during his period of active service. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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 the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 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. ? REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. a. The mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability. The regulation states medical evaluation boards 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 (Standards of Medical Fitness), Chapter 3. b. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, or rank or rating, given due consideration to his or her availability for worldwide deployment under field conditions. When a Soldier is being processed for separation for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement indicates that a Soldier is fit. c. If the Medical Evaluation Board (MEBD) determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a Physical Evaluation Board. 3. 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. 4. Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has less than 20 years of service or a disability rated at least 30 percent. 5. Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, a VA rating does not demonstrate an error or injustice on the part of the Army. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service (emphasis added). The Army disability rating is to compensate the individual for the loss of a military career. The VA does not have authority or responsibility for determining physical fitness for military service. 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. 6. The ABCMR considers individual applications that are properly brought before it. In appropriate cases, it directs or recommends correction of military records to remove an error or injustice. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The ABCMR will decide cases on the evidence of record. It is not an investigative agency. 7. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. a. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. b. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180015592 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS Record of Proceedings 1