IN THE CASE OF:	  

		BOARD DATE:	        22 January 2009

		DOCKET NUMBER:  AR20090000086 


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 records to show he was medically retired instead of assigned to the Retired Reserve.

2.  The applicant states that he was diagnosed with cancer while still in the U.S. Army Reserve (USAR).  He adds that the error in his case is that he was not permitted to change the type of retirement to a medical retirement.

3.  The applicant provides the following additional documentary evidence in support of his request:

	a.  Letter, dated 18 December 2008, from his Member of Congress.

	b.  Orders 05-031-00005, issued by Headquarters, 104th Division, Vancouver, Washington, on 31 January 2005, assigning him to the Retired Reserve.

	c.  APRC Form 249-E (Chronological Statement of Retirement Points), dated 28 May 2008.

	d.  DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 26 February 1968.

	e.  Histopathology report, dated 13 January 2005.

	f.  Oncologist statement, dated 18 December 2008.
CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's records show he was born on 5 February 1949, enlisted in the Regular Army on 14 June 1967, and held military occupational specialty (MOS) 71B (Clerk Typist).  He was honorably separated and transferred to the USAR Control Group on 26 February 1968.

3.  The applicant's records also show that, after a break in service, he enlisted in the USAR on 17 February 1977.  He subsequently executed a series of extensions and/or reenlistments in the USAR, held MOS 88M (Motor Transportation Specialist), and attained the rank of sergeant first class (SFC) on 1 January 1999.  He was assigned to the 7th Battalion, 104th Regiment, 104th Division (Institutional Training (IT)), Pasadena, California.

4.  On 22 April 1998, the U.S. Army Reserve Personnel Center issued the applicant a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter).  This letter notified the applicant that he had completed the required years of service and would be eligible for retired pay upon application at age 60.  

5.  On 13 January 2005, the applicant was diagnosed with a left thigh mass, neuroendocrine carcinoma with features consistent with Merkel's cell carcinoma. He underwent a surgical procedure at the Sierra Vista Regional Health Center, Sierra Vista, Arizona to remove the mass.  The attending surgeon indicated that the applicant was taken to the recovery room in stable condition after tolerating the procedure well.  

6.  There is no indication in the applicant's records that his unit was notified of this illness/surgery; that a line of duty determination was made by the applicant's commander; that the applicant was issued a permanent physical profile; or that he underwent a medical evaluation with subsequent referral to a medical evaluation board (MEB). 
7.  On 31 January 2005, Headquarters, 104th Division (IT), Vancouver, Washington, published Orders 05-031-00005, reassigning the applicant to the Retired Reserve, effective 30 March 2005, for completion of 20 or more years of qualifying service for retired pay at age 60.

8.  The applicant's Noncommissioned Officer Evaluation Report (NCOER) for the period March 2004 through February 2005 shows that the applicant was rated as "success" in all areas of NCO Responsibilities.

9.  Records at the U. S. Army Human Resources Command - St. Louis, MO, show that the applicant last performed active duty from 6 October through          19 October 2004, for 14 days.

10.  On 21 September 2008, the applicant's wife solicited help from her Member of Congress.  In a letter, the applicant's wife stated that the fatty cyst that was removed from her husband in January 2005 turned out to be Merkel's cell cancer, a rare and terminal cancer and that when the cyst resurfaced, her husband notified the retirement office of his medical condition so his orders could be changed to a medical retirement, but he was told it was too late.  The applicant's wife also described some of the financial difficulties the family was going through. 

11.  The applicant submitted a statement, dated 18 December 2008, that shows he is under treatment by a medical oncologist for terminal metastatic Merkel's cell cancer.

12.  The applicant's ARPC Form 249-E, dated 12 January 2009, shows he continued to be an active participant in the USAR from the time he received his 20-year letter to the time he was assigned to the Retired Reserve.

13.  Army Regulation (AR) 635-40 establishes the Army physical disability evaluation system and sets forth policies, responsibilities, and procedures that apply in determining whether a soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  It provides for medical evaluation boards, which 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 qualifications for retention based on the criteria in AR 40-501 (Standards of Medical Fitness), chapter 3.  

14.  Chapter 8 of AR 635-40 outlines the rules for processing through the disability system for Soldiers of the Reserve component who are on active duty for a period of less than 30 days or on inactive duty training.  Paragraph 8-2 states that Soldiers of the Reserve components are eligible for disability processing from an injury determined to be the proximate result of performing annual training, active duty special work, active duty for training, or inactive duty training.

15.  Paragraph 8-6 states that when a commander believes that a Soldier not on extended active duty is unable to perform his or her duties because of physical disability, the commander will refer the Soldier for medical evaluation.  Paragraph 8-6b states in effect, that the medical treatment facility will forward the medical evaluation board to the Soldier’s unit commander for disposition under applicable regulations.

16.  Paragraph 8-9 states in pertinent part that a Soldier not on extended active duty who is unfit because of physical disability will be separated without benefits if the disability was not incurred or aggravated as the proximate result of performing annual training, active duty special work, active duty for training, inactive duty training, etc. 

17.  Physical evaluation boards are established to evaluate all cases of physical disability equitability for the Soldier and the Army.  It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier’s particular office, grade, rank or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendation to establish eligibility of a Soldier to be separated or retired because of physical disability.

18.  A Soldier may be referred to a Physical Evaluation Board (PEB) from a troop program unit status because of an impairment incurred during a previous period of active duty.  The PEB will decide whether the Soldier is physically fit or unfit for duty, and if found unfit, will decide whether the disability was incurred while the Soldier was entitled to basic pay and in line of duty, and assign a percentage rating if the Soldier otherwise qualifies. 

19.  Title 10, U. S. 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

20.  DOD Instruction 1332.38 implements policy and prescribes procedures for retiring or separating service members because of physical disability.  This instruction provides, in pertinent part, that a service member shall be considered unfit when the evidence establishes that the member, due to physical disability, is unable to reasonably perform the duties of his office, grade, rank, or duties, to include duties during a remaining period of Reserve obligation. All relevant evidence will be considered in assessing service member fitness.  To reach a finding of unfit, the PEB must be satisfied that the information it has before it supports a finding of unfitness.

21.  If the evidence establishes that the service member adequately performed his duties until the time the service member was referred for physical evaluation, the member may be considered fit for duty even though medical evidence indicates questionable physical ability to continue to perform duty.  That instruction goes on to say 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 disability evaluation system under a rebuttal presumption that they are physically fit.  The disability evaluation system 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 rebuttal presumption that a service member’s medical conditions have not caused career termination.

22.  Findings about fitness or unfitness shall be made on the basis of preponderance of evidence.  Thus if a preponderance (more than 50 percent) of the evidence indicates unfitness, a finding to that effect will be made.  If, on the other hand, a preponderance of the evidence indicates fitness, the service member may not be separated or retired by reason of physical disability.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant underwent surgery on 13 January 2005 and he was assigned to the Retired Reserve on 30 March 2005.

2.  He was treated for a left thigh mass on 13 January 2005 and was diagnosed with features consistent with Merkel's cell carcinoma.  However, there is no evidence that this illness was incurred or aggravated as the proximate result of performing annual training, active duty special work, active duty for training, or inactive duty training.  His last active duty prior to this surgery was in October 2004, and was only for 14 days.

3.  Furthermore, there is no evidence that the medical documentation was forwarded to the applicant's commander to make a determination whether his illness affected his ability to perform the duties required of his rank and specialty. However, his NCOER for the period March 2004 through February 2005 shows that he was rated as "success" in all areas of NCO Responsibilities.  That indicated that he was fully capable for performing his duties before and after his surgery.

4.  By regulation, Soldiers of the Reserve components are eligible for disability processing from an injury determined to be the proximate result of performing annual training, active duty special work, active duty for training, or inactive duty training.  This determination is made through the physical disability evaluation system.  There is no evidence available to indicate the applicant underwent an MEB and/or PEB to evaluate his physical condition against the physical requirements of his particular office, grade, rank or rating or to make findings and recommendation to establish his eligibility to be separated or retired because of physical disability or that he should have been referred to an MEB and/or PEB.

5.  In view of the foregoing, regrettably, there is insufficient evidence to grant the applicant relief in this case.

BOARD VOTE:

________  ________  ________  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 that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



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      _______ _   _______   ___
               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.

ABCMR Record of Proceedings (cont)                                         AR20090000086



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ABCMR Record of Proceedings (cont)                                         AR20090000086



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