APPLICANT REQUESTS In a letter to his Congressman, that by ejy64045


									ABCMR Memorandum of                          AC96-10937
Consideration (cont)

APPLICANT REQUESTS: In a letter to his Congressman, that he either
be “compensated” for his military service or he be reinstated to
his former status as a reservist assigned to a unit.

APPLICANT STATES: He outlines his military history, commencing
with 3 years of active duty followed by assignment to the USAR
Control Group (Reinforcement). While he was in the Control Group,
he was given a physical examination in conjunction with his request
to perform a tour of active duty. Although he was told at that
time that he was medically disqualified to enter on active duty,
he was never discharged. When nothing else came of that
examination, he joined a USAR unit, performed his duties in an
exemplary manner, and was promoted to sergeant first class.
However, his military career was brought to an abrupt end starting
when he was mobilized during Operation Desert Storm. In the
beginning days of his mobilization, he “began to feel some
discomfort in my chest area and had a persistent cough. I decided
to go on sick call and see a doctor. After describing my discomfort
as well as my medical history, I was given a pulmonary function
test.” He was then given other medical tests and given physical
profile limitations. When separation action was later initiated
on him based on his medical condition he requested a waiver, which
was denied. The applicant questions the fairness and equity of
allowing him to remain in the military for almost 10 years after
he was diagnosed as having a medical condition and then discharging
him without benefits for the same condition. The applicant also
questions some changes made by his physicians on entries made in
his medical records.

EVIDENCE OF RECORD: The applicant's military personnel and
medical records show:

He enlisted in the Regular Army on 12 July 1971 and was honorably
released from active duty and transferred to the USAR Control Group
on 5 July 1974. He remained assigned to the Control Group until
the completion of his statutory military service obligation on
11 July 1977.
He had a break in service until his enlistment in the USAR Delayed
Entry Program on 11 September 1981. He then enlisted in the
Regular Army on 21 October 1981 and was honorably released from

ABCMR Memorandum of                          AC96-10937
Consideration (cont)

active duty and transferred to the USAR Control Group on 16 August

On 12 November 1985 he was given a physical examination wherein
abnormalities were noted on his chest x-ray. The examining
physician stated that he required old chest
x-rays from the applicant for comparison. The applicant was then
notified of the abnormality on his x-ray, he was advised to
follow-up with his civilian physician, and he was told that he
was medically disqualified for enlistment.

The applicant remained assigned to the USAR Control Group not on
active duty until his assignment to a USAR unit on 12 January 1987.
 On 9 May 1987 he was given a physical examination for the purpose
of reenlisting. At that time, despite his admission to his lung
problem, which had now been diagnosed as sarcoidosis, he was
determined medically qualified for retention.

He was promoted to pay grade E-7 and performed duties as an
instructor in a USAR School. On 1 February 1991 the applicant
was ordered to active duty in support of Operation Desert Storm.

On 8 February 1991, 7 days after he was mobilized, the applicant
reported to sick call complaining of having a problem breathing
when doing any strenuous activity. He informed the physician that
he was taking medication for his lung condition and required
physical profile limitations. Accordingly, he was given a
permanent “4” physical profile (on a scale of 1 to 4, 1 being the
best and 4 the worst), which stated “No mandatory strenuous
physical activity. No assignment to isolated areas where
definitive medical care is not available.”

The applicant’s active duty assignment orders were then amended
to delete him and he was processed for release from active duty. He
was given a separation physical examination and determined
medically qualified. Accordingly, on 24 March 1991 he was
released from active duty and returned to his USAR unit. He had
served 1 month and 24 days.

ABCMR Memorandum of                          AC96-10937
Consideration (cont)

On 25 April 1992 he was given a periodic physical examination.
 At that time he was again given a “4” physical profile, but
determined medically disqualified for retention.

On 8 July 1992 he reported to sick call (as a reservist not on
extended active duty) complaining of a persistent cough and chest
pain of a 10 day duration. On 27 July 1992 the applicant’s civilian
physician submitted a letter stating that the applicant’s lung
condition was very clearly worsening.

Apparently the applicant requested a waiver of his medical
disqualification. On 5 October 1994 the Army Reserve Personnel
Center (ARPERCEN) denied the applicant’s request, stating that
“The individual’s health or well being would be compromised if
he were to remain in the military service.”

Accordingly, on 24 October 1994 the applicant was transferred to
the Retired Reserve due to medical disqualification.

Title 10, U.S. Code, chapter 61, Retirement or Separation for
Physical Disability, provides for the medical retirement and for
the discharge for physical unfitness, with severance pay, of
soldiers who incur a physical disability in the line of duty while
serving on active or inactive duty. However, the disability must
have been the proximate result of performing military duty.

Army Regulation 135-178, paragraph 12-1, requires the separation
of reservists who are determined medically disqualified for
retention who are not granted a waiver of the disqualification.
 The reservist will be discharged unless he or she requests
transfer to the Retired Reserve.

Records obtained from the VA show that the applicant was denied
service connection for his lung condition.

DISCUSSION: Considering all the evidence, allegations, and
information presented by the applicant, together with the evidence
of record and applicable law and regulations, it is concluded:

1. Since there is no evidence that the applicant’s disqualifying
condition was either incurred or aggravated by his military

ABCMR Memorandum of                          AC96-10937
Consideration (cont)

service, there is no basis for medically retiring him with
disability benefits.

2. The applicant’s lung condition was determined to be medically
disqualifying under the more stringent procurement medical fitness
standards, as opposed to more lenient retention standards, in 1985.

3. Although the applicant continued to serve successfully in his
USAR unit with his medical condition after his 1985 physical
examination, it was discovered that he was not world-wide
deployable when he was mobilized during Operation Desert Storm.

4. Furthermore, the applicant’s civilian physician confirmed
that the applicant’s medical condition had worsened since his
mobilization during Operation Desert Storm.

5. In synopsis, the applicant’s medical condition was determined
to be of the severity to preclude his deployment during a National
emergency. Subsequent to Operation Desert Storm, his condition
worsened to a significant degree which, in the opinion of the
ARPERCEN Command Surgeon, would compromise his health or well being
if he were to remain in the military service.

6. 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.



                        GRANT FORMAL HEARING

                        DENY APPLICATION

ABCMR Memorandum of                 AC96-10937
Consideration (cont)

                       Karl F. Schneider
                       Acting Director


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