RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          1 April 2004
      DOCKET NUMBER:   AR2003089501


      I certify that hereinafter is recorded the true and complete record
of the proceedings 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:

|     |Mr. Fred N. Eichorn               |     |Chairperson          |
|     |Mr. Walter T. Morrison            |     |Member               |
|     |Mr. John T. Meixell               |     |Member               |

      The applicant and counsel if any, did not appear before the Board.

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his records be corrected to
show that he was retained on active duty for 86 days, and was retired for
years of service at the end of that time.

2.  The applicant states that it has come to his attention that the
appropriate Army regulations were not followed during his disability
processing.

3.  The applicant provides a memorandum from the US Army Physical
Disability Agency (USAPDA), dated 7 November 2002.  In that memorandum it
was stated that the USAPDA did not have the authority to correct the
applicant’s records to establish his retirement eligibility for years of
service.  The USAPDA stated that only this Board has that authority.  The
USAPDA continued that Army Regulation 635-40, paragraph 6-5b, requires that
soldiers with over 18 but less than 20 years of active service be counseled
on their right to request Continuation On Active Duty (COAD).  The soldier
will make his or her election in writing, or the Physical Evaluation Board
Liaison Officer (PEBLO) will include a signed certificate stating that the
soldier has been counseled and elects not to submit an election in writing.

CONSIDERATION OF EVIDENCE:

1.  The applicant initially enlisted in the Regular Army on 10 June 1977.
He was awarded Military Occupational Specialty (MOS) 95B, Military Police,
and was promoted to pay grade E-4.

2.  On 9 June 1980, the applicant was honorably released from active duty
due to the completion of his required service.

3.  On 21 January 1981, the applicant reenlisted in the Regular Army.  He
was awarded the MOSs of Indirect Fire Infantryman and Ammunition Specialist
and was promoted to pay grade E-6.

4.  On 22 May 1997, a Medical Evaluation Board (MEB) physical evaluation
was conducted on the applicant.  The evaluation summary chronicles the
applicant’s diagnosis of malignant melanoma in February 1997, and the
surgical removal of the malignant melanoma.  The applicant was found free
from any other malignancies, but was started on intravenous (IV) Interferon
five times a week.  He was scheduled to transition to maintenance therapy
of IV Interferon three times a week the following week.




5.  On 23 May 1997, the applicant signed a form stating that “I do desire
to remain in the military service.”

6.  On 27 May 1997, the MEB convened and determined that the applicant was
medically disqualified due to malignant melanoma of back with metastasis to
right axillary node [surgically removed], and alpha Interferon therapy
requiring repeated surgical drainage.  The MEB recommended that the
applicant be referred to a Physical Evaluation Board (PEB).

7.  On 24 June 1997, the applicant’s commander wrote the PEB President
stating that the applicant “is an excellent NCO.  He is an exceptional
leader with unquestionable work ethics and superb leadership skills . . .
[the applicant] has given the Army nineteen years and has completed every
mission in a timely manner.  I ask that the board be compassionate and
allow [the applicant] the opportunity to retire with twenty years of
service.”

8.  On 14 July 1997, an informal PEB convened and determined that the
applicant was physically unfit due to malignant melanoma of back with
metastasis to right axillary node [surgically removed], and alpha
Interferon therapy.  The PEB recommended that the applicant be placed on
the TDRL, rated 100 percent disabled.  The applicant concurred with that
finding and recommendation.

9.  Accordingly, on 28 October 1997, the applicant was honorably released
from active duty and placed on the TDRL.  He had a total of 19 years, 9
months and 8 days of active federal service.

10.  The applicant was retained on the TDRL as a result of the findings of
periodic physical evaluations and PEB’s.

11.  On 22 May 2002, an informal PEB convened and determined that the
applicant had not experienced any recurrence of his malignant melanoma
since its removal in February 1997.  The PEB determined that his medical
condition was then stable enough to permanently rate, and recommended that
he be discharged with severance pay, rated zero percent disabled.

12.  The applicant did not concur with the informal PEB’s findings and
recommendation, and demanded a formal hearing.

13.  Accordingly, on 13 August 2002, a formal PEB was convened which made
the same findings and recommendation as the informal PEB.




14.  As a result of those findings and recommendation, the applicant was
discharged from the TDRL with severance pay on 25 November 2002.

15.  Army Regulation 635-40, paragraph 7-2, provides that an individual may
be placed on the TDRL (for the maximum period of 5 years which is allowed
by Title 10, United States Code, section 1210) when it is determined that
the individual’s physical disability is not stable and he or she may
recover and be fit for duty, or the individual’s disability is not stable
and the degree of severity may change within the next 5 years so as to
change the disability rating.

16.  Paragraph 3-10 of this regulation states that soldiers who are
determined physically unfit may request COAD.  The Army may approve such
requests only when the physical condition of the soldier is such where he
or she is still an asset to the service.  When a soldier is approved for
COAD, he or she will be referred to another MEB and PEB in accordance with
paragraph 6-14 of this regulation when separated or retired.

DISCUSSION AND CONCLUSIONS:

1.  Contrary to the USAPDA’s contention, the applicant was in fact
counseled on COAD and he requested COAD.  However, there is no indication
that his request was properly considered and denied.  This may be the
omission that the USAPDA was actually referring to in its memorandum.

2.  It is not fair or equitable for a soldier within 90 days of completing
20 years of active Federal service to be denied retirement unless
compelling medical reasons necessitated such an action.  There is no
indication of any such compelling medical reasons.

3.  As such, it would be in the interest of justice to correct the
applicant’s records to show that his request for COAD was approved, and he
was retained on active duty for a period which would permit him to be
retired for years of service.  This would be accomplished by:

      - voiding his 28 October 1997 discharge from the Regular Army;

      - voiding his 29 October 1997 placement on the TDRL;

      - showing that he was retained on active duty until he reached
retirement eligibility for years of service;

      - showing that a second MEB and PEB was convened when he reached 20
years of active service which determined that he was medically disqualified
for retention, and that he was physically unfit due to malignant melanoma
of back with metastasis to right axillary node [surgically removed], and
alpha Interferon therapy, rated 100 percent disabling;

      - showing that he was placed on the TDRL, rated 100 percent disabled,
the day after he attained 20 years of active federal service;

      - showing that the periodic TDRL physical examinations and PEB’s
remained unchanged; and

      - paying to him or collecting from him the appropriate amount of
money after the amount of active duty and retired pay he is due as a result
of this correction is offset by the amount of disability severance pay he
was given when he was discharged from the TDRL.

BOARD VOTE:

___jtm___  ___wtm _  ____fne_  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant
a recommendation for relief.  As a result, the Board recommends that all
Department of the Army records of the individual concerned be corrected by:

      a.  voiding his 28 October 1997 discharge from the Regular Army;

      b.  voiding his 29 October 1997 placement on the TDRL;

      c.  showing that he was retained on active duty until he reached
retirement eligibility for years of service;

      d.  showing that a second MEB and PEB was convened when he reached 20
years of active service which determined that he was medically disqualified
for retention, and that he was physically unfit due to malignant melanoma
of back with metastasis to right axillary node [surgically removed], and
alpha Interferon therapy, rated 100 percent disabling;

      e.  showing that he was placed on the TDRL, rated 100 percent
disabled, the day after he attained 20 years of active federal service;

      f.  showing that the TDRL periodic physical examinations and PEB’s
remained unchanged; and

      g.  paying to him or collecting from him the appropriate amount of
money after the amount of active duty and retired pay he is due as a result
of this correction is offset by the amount of disability severance pay he
was given when he was discharged from the TDRL.





            _________Fred N. Eichorn__________
                    CHAIRPERSON



                                    INDEX

|CASE ID                 |AR2003089501                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040401                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |108.05                                  |
|2.                      |110.03                                  |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |