MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 26 February 2002
         DOCKET NUMBER: AR2001061936

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Edmund P. Mercanti		Analyst

The following members, a quorum, were present:

Ms. Joann H. Langston		Chairperson
Mr. Raymond J. Wagner		Member
Mr. Richard T. Dunbar		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

---

APPLICANT REQUESTS: That his retirement for years of service be voided; that he be given the difference in pay that he would have received if he had been retained on active duty; that he be medically boarded; and that upon conclusion of the medical board that his retired pay be adjusted for his additional service.

APPLICANT STATES: In a letter to the Army Reserve Personnel Command, dated 3 June 2001, he stated that during his retirement physical examination, he was referred to urology. Prior to his being seen by the urologist, he was retired for years of service. After his retirement, he was seen in urology, had a biopsy taken, and was diagnosed as having cancer of the prostate. Surgical removal of the cancerous growth was conducted on 29 November 2000, and he has continued to receive treatment for postoperative problems.

In support of his application, he submits a letter from the Chief, Urology Service, Dwight David Eisenhower Army Medical Center, dated 4 May 2001. In that letter it is stated that the applicant underwent surgery for prostate cancer on 29 November 2000 based on an abnormal examination of his prostate during his retirement physical examination in July 2000.

EVIDENCE OF RECORD: The applicant's military records show:

He entered on active duty in the Active Guard and Reserve (AGR) program on 16 March 1981, with 1 year and 29 days of prior active service, and 14 years, 9 months and 4 days of prior service not on extended active duty.

He served as a Medical Supply Sergeant in an Army Reserve hospital unit and was promoted to pay grade E-8.

On 17 April 1995 the applicant was notified that he had been selected for an AGR Qualitative Management Program (QMP) bar to reenlistment. The bar was based on the applicant being on continuous physical profile restrictions, which precluded his taking the Army Physical Fitness Test, but without having his physical profile recorded in his DA Form 2-1, Personnel Qualification Record.

The applicant unsuccessfully appealed that bar to reenlistment. The Secretariat for Department of Army Selection Boards, Reserve Components, recommended denial of the applicant’s appeal. The Deputy Chief of Staff for Personnel, Department of Army, approved that recommendation on 17 October 1995.

On 25 October 1995, the applicant’s command was notified of the denial of his appeal and directed to separate him from active duty not later than 60 days from the date he was notified of the denial.

There is no evidence of the directive to separate the applicant being complied with, or any reason why it was not complied with, contained in his records.
On 8 December 1999 the applicant submitted a request for voluntary retirement for years of service. That request was approved and the applicant was honorably released from active duty on 31 August 2000 and placed on the Retired List the following day. He had a total of 20 years, 6 months and 14 days of active service.

Army Regulation 635-40, paragraph 3-7, and Army Regulation 635-200, paragraph 1-26, provide for the retention of enlisted personnel beyond their scheduled release from active duty date if they are hospitalized or physical disability processing is required. These paragraphs require a soldier be afforded the opportunity to request retention on active duty. However, a solder’s request has to be approved by the General Court-Martial convening authority.

Department of Defense Instruction (DoDI) 1332.38, paragraph E3.P3.5.1, Application, states that except for service members previously determined unfit and continued in a permanent limited duty status, service members who are pending retirement at the time they are referred for physical disability evaluation enter the DES (Disability Evaluation System) under a rebuttable presumption that they are physically fit. The DES compensates disabilities when they cause or contribute to career termination. Continued performance of duty until a service member is approved for length of service retirement creates a rebuttable presumption that a service member’s medical conditions have not caused career termination. Paragraph E3.P3.5.2., Presumptive Period, states that service members shall be considered to be pending retirement when the dictation of the member’s MEB occurs after any of the circumstances designated in paragraphs E3.P3.5.2.1. through E3.P3.5.2.4. Paragraph E3.P3.5.2.1, When a member’s request for voluntary retirement has been approved, states that revocation of voluntary retirement orders for purposes of referral into the DES does not negate application of the presumption. Paragraph E3.P3.5.3, Overcoming the Presumption, states that the presumption of fitness rule shall be overcome when: (E3.P3.5.3.1) Within the presumptive period an acute, grave illness or injury occurs that would prevent the member from performing further duty if he or she were not retiring; or (E3.P3.5.3.2) Within the presumptive period a serious deterioration of a previously diagnosed condition, to include a chronic condition, occurs and the deterioration would preclude further duty if the member were not retiring; or (E3.P3.5.3.3) The condition for which the member is referred is a chronic condition and a preponderance of evidence establishes that the member was not performing duties befitting either his or her experience in the office, grade, rank, or rating before entering the presumptive period. When there has been no serious deterioration within the presumptive period, the ability to perform duty in the future shall not be a consideration.

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. Had it been known that the applicant had prostate cancer prior to his release from active duty, he could have requested retention on active duty. However, his request would have to have been approved by the general court-martial convening authority. If the applicant’s cancerous growth was detected prior to his retirement, the general court-martial convening authority would have had to determine that the applicant had an acute, grave illness or injury that would prevent him from performing further duty if he or she were not retiring. The applicant has not submitted any evidence or indication that this was the case on the date he was retired. Without such a finding, there would have been no basis for the applicant to be retained on active duty.

2. The Board considers the provisions of Army regulations to retain a soldier on active duty to receive medical treatment a vehicle to insure that soldiers receive prompt medical care for severe service related medical conditions which may warrant their placement on the retired list due to physical disability. In the applicant’s case, he received prompt medical care at a military medical facility for his cancer, and received his retired pay during the time he was receiving that treatment. Additionally, the applicant has not submitted any evidence, which would show that if he were to be processed through the disability evaluation system, he would be determined physically unfit to perform his duties. Without such evidence, the only purpose to be served by granting his request would be to provide him with active duty pay for the timeframe he received medical treatment and convalesced, and a recalculation of his retired pay based on this additional active duty time. In any case, as a retiree, he is still entitled to military medical care without being returned to active duty.

3. 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.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

___rtd___ ___jhl___ ___rjw___ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

---

INDEX

CASE ID	AR
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020226
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.
2.
3.
4.
5.
6.