IN THE CASE OF:	  

		BOARD DATE:	       28 May 2009

		DOCKET NUMBER:  AR20090003654 


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, in effect, that her discharge be voided and that she be restored to active duty to receive medical treatment. 

2.  The applicant states, in effect, that she is requesting to be restored to active duty because a few months before her discharge she was being evaluated for a lump she found in her breast.  At the time, her unit was deploying to Iraq, which created a tense environment for her family because she had just returned from a tour in Korea and having to deploy again was creating a problem in terms of long term care for her children.  She goes on to state that she informed her chain of command of her problem and her desire to remain on active duty until the issue of the lump was cleared up and she was told that if ongoing care was needed she would be able to get it through the Department of Veterans Affairs (VA).  She further states that she attempted to get medical personnel to put her discharge on hold and was informed that until the test results were in, nothing could be done to stop her discharge.  She continues by stating that 2 weeks after her discharge, the results came back and she was diagnosed with breast cancer.  She also states that the cancer occurred while she was on active duty and should have been treated while she was on active duty.

3.  The applicant provides copies of medical documents related to her treatment for a lump in her breast.




CONSIDERATION OF EVIDENCE:

1.  The applicant was married on 19 October 2006 and enlisted in the Regular Army (RA) on 16 November 2006 for a period of 3 years and 19 weeks, training as a unit supply specialist in military occupational specialty of 92Y, and a cash enlistment bonus.  She had two children at the time of her enlistment.

2.  She completed her basic training at Fort Jackson, South Carolina and her advanced individual training (AIT) at Fort Lee, Virginia before being transferred to Korea on 3 June 2007.  Her husband joined the Army on 28 June 2007 for a period of 4 years and training as an automated logistics specialist.

3.  She was advanced to the pay grade of E-4 on 1 June 2008 and on 21 June 2008, she reported for assignment at Fort Hood, Texas.

4.  In July 2008, she was counseled by her commander regarding the requirement to complete a valid family care plan (FCP) and was provided the necessary documents to complete the plan.

5.  In August 2008, the applicant was again counseled by her commander and was informed that her FCP was invalid.  The applicant indicated that she could not complete a valid FCP and expressed a desire to be discharged.

6.  On 12 September 2008, the applicant's commander notified her that he was initiating action to involuntarily discharge her from the service under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-8, due to parenthood.  

7.  The commander initiated action to discharge her on 16 September 2008 and advised her of her rights.  He also advised her that she was not required to complete a medical examination or a mental status evaluation in accordance with Army Regulation 40-501 (Standards of Medical Fitness).  After consulting with counsel, the applicant waived all of her rights and submitted a statement in which she stated that she had exhausted all of her resources in regards to a FCP and that her only choice was to be discharged to prevent any further suffering by her family.

8.  On 18 October 2008, the applicant was seen at the Charles Moore Health Clinic at Fort Hood regarding the applicant's concern that she had found a lump under her left arm 2 weeks prior.  The examining official noted that no mass was found and prescribed antibiotics. 

9.  The appropriate authority approved the recommendation on 13 November 2008 and directed that she be furnished an Honorable Discharge Certificate.

10.  On 14 November 2008, orders were published which directed that the applicant be discharged on 5 December 2008.  The orders specified that she was eligible for transitional health care until 2 June 2009.

11.  On 19 November 2008, the applicant was seen at the Monroe Health Clinic at Fort Hood for a follow-up on the lump in the left breast.  The examining official noted that a mass was found "marble-sized, hard nodule, non-tender upper outer left quadrant of left breast."  The applicant was scheduled for a radiology appointment on 25 November 2008 for an ultrasound.

12.  On 5 December 2008, the applicant was honorably discharged under the provisions of Army Regulation 635-200, paragraph 5-8, due to parenthood.  She had served 2 years and 20 days of total active service.

13.  On 24 December 2008, the applicant underwent a biopsy at Wilford Hall Medical Center at Lackland Air Force Base in San Antonio, Texas.  The results of the biopsy indicated that it was consistent with breast cancer.  She was referred for consideration of neoadjuvant therapy.

14.  There is no evidence in the available records to show that the applicant elected to undergo a separation physical examination prior to her discharge or that she made her commander aware of her medical condition prior to separation.

15.  In the processing of this case a staff member of the Board contacted the applicant's former commander at Fort Hood.  The commander indicated that he remembered her because it was only a couple of months since she was discharged for parenthood.  He also stated that he was unaware that she had any unresolved medical issues at the time, but was sure that she elected not to undergo a separation physical upon her departure from the Army.  He further stated that she actually wanted the discharge and stated that he would have granted her the time to take a separation physical had she or a physician requested one.  A copy of the conversation record was forwarded to the applicant and to date she has not responded.

16.  The Transitional Assistance Management Program (TAMP) provides 180 days of transitional health care benefits upon separation from active duty service.  Generally, service members who are involuntarily separated are eligible for TAMP coverage for themselves and their family members.  For those who qualify, the 180-day period begins upon the sponsor's separation.
17.  Army Regulation 40-501 provides, in pertinent part, that Soldiers separating from the Army will receive a separation medical examination if the Soldier requests one, or if, on review of medical records or the DD Form 2697 (Report of Medical Assessment), a physician, a physician assistant, or a nurse practitioner feels an examination is warranted.

DISCUSSION AND CONCLUSIONS:

1.  While it is indeed unfortunate that the applicant was diagnosed with cancer shortly after her discharge, she has provided no evidence to show that she requested to have her discharge delayed or made her commander aware of her medical condition at the time.

2.  It appears that the applicant elected not to undergo a physical/medical examination in conjunction with her discharge, which was her right.  Accordingly, in doing so, she had to rely on using her medical benefits under the TAMP after her separation.

3.  Therefore, absent evidence to show that she made her chain of command aware that she had a medical condition that would possibly have delayed her separation, it appears that she was properly discharged in accordance with the applicable laws and regulations with no indication of any violations of any of her rights.

4.  In reviewing the available evidence provided by the applicant as well as her official records, there is no indication of any apparent wrong-doing on the part of the Army that would justify the revocation of her discharge and reinstatement to active duty.  

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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.



      ___________X____________
               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)                                         AR20090003654



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ABCMR Record of Proceedings (cont)                                         AR20090003654



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