IN THE CASE OF:	  

		BOARD DATE:	  29 October 2010

		DOCKET NUMBER:  AR20100011836 


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 due to physical disability.

2.  The applicant states he joined the U.S. Army on 8 September 1988.  He completed the required years of qualifying service for retirement on 8 September 2009 with a retirement date of 1 October 2009.  He adds that he has an incurable medical condition and he should have been medically retired on 8 September 2009.

3.  The applicant provides copies of several documents related to his medical condition in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant was born in May 1949.  He was appointed as a Reserve commissioned officer in the rank of captain on 8 September 1988, ordered to active duty in the rank of major on 17 September 1988, and attended the Army Medical Officer Basic Course.  He was honorably released from active duty on
31 December 1994 and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his Reserve obligation.

2.  The applicant was promoted to lieutenant colonel on 7 October 1997.

3.  A Standard Form (SF) 507 (Clinical Record - Functional Capacity Certificate) completed by the applicant and an SF 507 completed by the Assistant to the Command Surgeon, Physical Review Board, U.S. Army Human Resources Command, St. Louis, MO, both dated 2 May 2007, show the applicant was diagnosed with mild knee osteoarthritis with the limitation of no running/ functional capacity (certification on 2 May 2007).

   a.  Item 1 (Examiner's findings:  I find the following diagnoses to contribute to the physical limitations claimed above) shows the physician entered, "Mild R [Right] knee osteoarthritis - no knee film obtained."

   b.  The Disposition section shows the command surgeon entered "Meets Medical Retention Standards" and in the action section she entered "Retain."

4.  U.S. Army Human Resources Command, St. Louis, MO, memorandum, dated 31 March 2009, disapproved the applicant's request for retention beyond his Mandatory Removal Date (MRD) based on the USAR not having a critical wartime shortage in his area of concentration.

5.  An Army Reserve Personnel Command (ARPC) Form 249-E (Chronological Statement of Retirement Points) shows the applicant had:

* seven (7) qualifying years for retirement from retirement year (RY) beginning date 8 September 1988 through retirement year ending (RYE) 7 September 1995

* zero (0) qualifying years for retirement from RY beginning date
8 September 1995 through RYE 7 September 2001

* seven (7) qualifying years for retirement from RY beginning date
8 September 2001 through retirement year ending (RYE) 7 September 2008

* 11 months and 23 days of qualifying service from RY beginning date
8 September 2008 through RYE 30 August 2009

* a total of 14 years, 11 months, and 23 days of qualifying service for retirement

6.  In support of his application, the applicant provides the following documents:

   a.  Two Armed Forces Institute of Pathology (AFIP), Washington, DC, Consultation Reports, dated 13 July and 28 November 2006, along with AFIP Laboratory Reports from 19 December 2005 to 1 December 2006.  
   
       (1)  The AFIP memorandum, dated 28 November 2006, shows "Diagnosis: SP 06 4794 - Prostate (Prostatectomy); Multifocal carcinoma; Carcinoma, well differentiated, Nuclear grade II (Gleason score 3 + 3); Carcinoma, well differentiated, Nuclear grade I; (Gleason score 3 + 3); Prostatic intraepithelial neoplasia; Seminal vesicle:  No pathological diagnosis; pT2 Nx Mx; and Surgical margin:  negative."

       (2)  It also states, "[t]he staff appreciates the follow-up material and concurs essentially with your diagnoses and staging.  The tumor in the peripheral part of the prostate is organ confined and does not involve the surgical margin."

   b.  An SF 507 completed by the applicant and a physician on 7 April 2009 shows in:

       (1)  the "To be Completed by the Soldier" section the applicant entered, "Urinary Incontinence" in response to 12 questions;

       (2)  item 17 (Have you been treated for any mental health condition in the past 5 years?  If YES, what is that medical condition?) the applicant circled "Yes" and entered "Prostate Cancer"; and

       (3)  item 1 the physician entered "Urinary Incontinence."
   
   c.  Department of Veteran Affairs (VA), Pittsburgh Healthcare System, letter, dated 7 April 2009, shows the Chief of Urology wrote "[applicant] underwent robotic assisted prostatectomy at the Pittsburgh VA [on] October 18, 2006.  His prostate cancer remains under good control.  Although he initially had good urinary control, he states that he has been developing stress urinary incontinence over the past few months, such that he is now no longer [able] to lift or have significant physical activity without leakage of urine."

   d.  A DD Form 2808 (Report of Medical Examination) [undated, but which appears to have been completed on 8 May 2009] shows the applicant was examined by a physician at the Family Practice, VA Pittsburgh Healthcare System, Pittsburgh, PA, for the purpose of his retirement from the USAR.

       (1)  Item 77 (Summary of Defects and Diagnoses) shows the entry "Prostate cancer s/p Robotic prostatectomy complicated by urinary incontinence."
   
       (2)  Item 74a (Examinee/Applicant) shows the physician entered "N/A" in response to whether or not the applicant was qualified or not qualified for service.

7.  There is no evidence the applicant was found unqualified for service based on medical unfitness.

8.  U.S. Army Reserve Command, Fort McPherson, GA, Orders 09-224-00021, dated 12 August 2009, honorably discharged the applicant from the USAR effective 30 August 2009.

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, sets forth policies, responsibilities, and procedures in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.

	a.  Paragraph 3-1 (Standards of unfitness because of physical disability) provides that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of their office, grade, rank, or rating.

	b.  Paragraph 3-2 (Presumptions), subparagraph b, provides that when a Soldier is being separated or retired for reasons other than physical disability, continued performance of assigned duty commensurate with his rank or grade until the Soldier is scheduled for separation, creates a presumption that the Soldier is fit.  The presumption of fitness can be overcome if the evidence establishes that he was unable to perform his duties, or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

10.  Title 10, U.S. Code, section 12731 (Age and service requirements), provides that, except as provided in subsection (c), a person is entitled, upon application, to retired pay computed under section 12739 of this title, if the person (1) has attained the eligibility age applicable to that person (i.e., 60 years of age); and
(2) has performed at least 20 years of service computed under section 12732 of this title.

11.  Title 10, U.S. Code, section 12731b (Special rule for members with physical disabilities not incurred in line of duty), provides that in the case of a member of the Selected Reserve of a reserve component who no longer meets the qualifications for membership in the Selected Reserve solely because the member is unfit because of physical disability, the Secretary concerned may, for purposes of section 12731of this title, determine to treat the member as having met the service requirements of subsection (a)(2) of that section and provide the member with the notification required by subsection (d) of that section if the member has completed at least 15, and less than 20, years of service computed under section 12732 of this title.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his records should be corrected to show he met the qualifying years of USAR service on 8 September 2009 and retired on 1 October 2009 due to physical disability.

2.  The evidence of record shows the applicant was diagnosed with prostate cancer on or about 14 July 2006 and underwent a robotic assisted prostatectomy on 18 October 2006.

   a.  On 7 April 2009, the Chief of Urology, VA Pittsburgh Healthcare System, stated the applicant's prostate cancer remains under good control.

   b.  On 8 May 2009, at a medical examination for the purpose of retirement, the physician documented the applicant's medical condition; however, he made no determination on the applicant's qualification for service.  Thus, the applicant was not disqualified for further service based on his medical condition.

	c.  In addition, it appears the applicant believed himself to be sufficiently fit for continuation in the Army to have requested, in 2009, retention beyond his MRD.

   d.  Therefore, in the absence of evidence to the contrary, it is presumed the applicant was medically qualified for continued/further service at that time.

3.  The evidence of record shows the applicant was credited with 14 years,
11 months, and 23 days of qualifying service for retirement at the time he was honorably discharged from the USAR based on his MRD of 30 August 2009.

   a.  There is no evidence the applicant was found unqualified for service based on medical unfitness.
   
   b.  There is no evidence the applicant was issued a notice of eligibility for retired pay at age 60.

   c.  Therefore, there is no basis for correcting the applicant's military service records to show he completed 15 qualifying years of service on 8 September 2009 and that he was retired on 1 October 2009 due to physical disability.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ____X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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)                                         AR20100011836



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100011836



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1