IN THE CASE OF:	

		BOARD DATE:	  22 April 2010

		DOCKET NUMBER:  AR20090012773 


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 consideration by a medical evaluation board (MEBD).

2.  The applicant states:

* she was diagnosed with breast cancer while on active duty and an MEBD was not done while she was on active duty
* her cancer is terminal and she was given a prognosis of 9 months to 1 year in October 2008 by doctors at Tripler Army Medical Center
* she is being denied medical retirement and benefits

3.  The applicant provides:

* February 2004 cancer diagnosis
* terminal prognosis

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U.S. Army Reserve (USAR) on 3 January 2002 for a period of 8 years.  She enlisted in the Regular Army on 7 November 2002 for a period of 4 years and served as a cryptologic linguist.

2.  The applicant provided a service medical record, dated 23 February 2004, which shows she was diagnosed with breast cancer.

3.  On 6 November 2006, the applicant was released from active duty and transferred to the USAR to complete her remaining service obligation.

4.  The applicant's DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) for the period 7 November 2006 through 6 November 2007 shows she was rated "Success (Meets Standard)" for physical fitness and military bearing.  The bullet comments were "profile does not hinder duty performance," "highly motivated and enthusiastic," and "educated Soldiers on proper nutrition and dietary habits."

5.  There is no evidence of record which shows the applicant appeared before an MEBD while she was on active duty.

6.  The applicant provided a physician's certificate, dated 5 November 2008, which shows she was diagnosed with breast cancer and that she had a life expectancy of 9 months or less.

7.  Information obtained from a medical official at Tripler Army Medical Center revealed when the applicant was diagnosed with breast cancer in 2004, she refused recommended therapy (surgery, radiation, and/or chemotherapy) and opted to undergo Chinese herbal therapy.  This was against the advice of her surgeon and her primary care manager.  When the applicant did eventually accept treatment from Medical Oncology at Tripler Army Medical Center, she did not accept the recommended protocol, but selected a different therapy.  At the time of her expiration of term of service (ETS) in 2006, the applicant refused an MEBD because it was her desire and intent to serve in the USAR.

8.  On 23 February 2010, this ex-parte communication/information was provided to the applicant for comment or rebuttal.  On 9 March 2010, the applicant requested a 30-day extension.  On 7 April 2010, the applicant responded.  She states:

* she denies she was offered an MEBD at the time of her ETS in 2006
* she does not recall being informed that she had the right to an MEBD before her ETS
* it is this fact in particular which led her to believe that an injustice had been committed
* she does not believe there is a record indicating she was made aware on or around the time of her ETS that she had the right to request an MEBD or a record that an MEBD was offered to her and she refused


* in March 2004 a doctor at Tripler Army Medical Center threatened to kick her out of the Army by initiating an MEBD himself for her decision to choose Chinese medicine over his recommendations
* at the time she was still able to work like normal and since she was paying for the Chinese medical treatments out of her own pocket, the lost income would have really hurt her financially
* not only did the doctor threaten to kick her out, he said that because of her choice to follow her cultural beliefs the board would not award her any benefits
* based on this information which was never contradicted by her unit, she begged the doctor not to initiate a board at the time

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states that if a Soldier unreasonably fails or refuses to submit to medical or surgical treatment or therapy, or take prescribed medications, that portion of the disability that results from such failure or refusal will not be rated where it is clearly demonstrated that the Soldier was advised clearly and understandably of the medically proper course of treatment, therapy, and the failure or refusal was willful or negligent and not the result of mental disease or a physical inability to comply.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions and request for an MEBD were carefully considered.  However, information obtained from Tripler Army Medical Center indicates when the applicant was diagnosed with breast cancer in 2004, against the advice of her surgeon and primary care manager, she refused recommended therapy and opted for alternative therapy.  She also refused an MEBD at her ETS in 2006 because she wanted to serve in the USAR.

2.  Even if the applicant's contention that she denies being offered an MEBD at the time of her ETS in 2006 is accepted, her refusal of the medically conventional course of treatment for her condition meant that her condition could not be rated.

3.  It appears the applicant was found qualified for separation on 6 November 2006.  It appears she was medically fit to serve in the USAR following her release from active duty.  Her NCOER for the period 7 November 2006 through 6 November 2007 shows she was rated "Success (Meets Standard)" for physical fitness and military bearing.  Therefore, there is no basis for granting the applicant's request.



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)                                         AR20090012773



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ABCMR Record of Proceedings (cont)                                         AR20090012773



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