IN THE CASE OF:	  

		BOARD DATE:	  13 December 2011

		DOCKET NUMBER:  AR20100028466 


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 reconsideration of his previous request for correction of his record to show he was determined to be unfit by the physical disability evaluation system (PDES) and retired by reason of physical disability instead of being discharged for reaching his Mandatory Removal Date (MRD).

2.  The applicant states he joined the U.S. Army on 8 September 1988 and completed the required years of qualifying service for medical retirement on 8 September 2009 due to the fact he has an incurable medical condition.

3.  The applicant provides:

* a letter from his Family Practitioner, Dr. V----- M----, at the Veterans Affairs Pittsburgh Healthcare System (VAPHCS) located in Pittsburgh, PA, dated 10 November 2010
* a DD Form 2807-1 (Report of Medical History), dated 8 May 2009
* a DD Form 2808 (Report of Medical Examination), dated 10 November 2010
* two letters from doctors at the Armed Forces Institute of Pathology (AFIP), dated 13 July and 29 November 2006
* a 5-page extract from his medical record maintained by the Veterans Affairs Medical Center (VAMC) located in Pittsburgh, PA, printed on
21 February 2007
* a letter from the Chief of Urology at the VAPHCS, dated 7 April 2009

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20100011836, on 29 October 2010.

2.  He provides new evidence in the form of a letter from his Family Practitioner and a revised DD Form 2808.  This evidence was not previously reviewed by the ABCMR.  Therefore, it is considered new evidence and as such warrants consideration by the Board.

3.  The applicant's record shows he was born on 16 May 1949.  He was appointed as a Reserve commissioned officer in the rank/grade of captain (CPT)/O-3 on 8 September 1988 and ordered to active duty in the rank/grade of major (MAJ)/O-4 on 17 September 1988.  He successfully completed the Army Medical Officer Basic Course.  He was honorably released from active duty on 31 December 1994 as a result of non-selection for promotion and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement).

4.  He was promoted to lieutenant colonel (LTC)/O-5 on 7 October 1997.

5.  The applicant's record contains four memoranda sent to him by the Chief, Office of Promotions, Reserve Components, U.S. Army Human Resources Command (USAHRC), St. Louis, MO informing him that he was considered for promotion to the next grade, but not selected by the Department of the Army Reserve Components Selection Boards which convened on 8 June 2001, 28 May 2003, 10 May 2005, and 2 May 2006.

6.  The applicant's record contains a DD Form 2807-1 and DD Form 2808, which show he underwent a medical examination for the purpose of retention in the USAR on 21 March 2006.  These documents show his medical condition consisted of severe arthritis in his right knee and mild high blood pressure.  He had undergone right knee surgery for loose bodies in 1993 and he was currently receiving disability compensation for the injury to his right knee which was sustained in the Army while on active duty.  It was determined that he was qualified for continued service.

7.  The applicant provides two AFIP Consultation Reports, dated 13 July and 29 November 2006, and a Cumulative Lab Report from the VAPHCS, printed on 21 February 2007.  These documents show he was diagnosed with prostate cancer.

8.  His VAPHCS medical record contains Progress Notes rendered when he visited the hospital on 16 March 2007.  The examining physician noted the following information:

	a.  Active medical problems:

		(1)  Prostate cancer;

		(2)  Knee arthralgia (joint pain); and

		(3)  Benign hypertension.

	b.  History of present illness/new complaints:  

		(1)  he was feeling well;

		(2)  he had no incontinence;

		(3)  he was happy with his surgical outcome;

		(4)  he had some discomfort when he passed stool; and 

		(5)  he had noted no blood.

	c.  Assessment/plan for active problems:

		(1)  prostate cancer - results of last screening test for prostate-specific antigen (PSA) were undetectable;

		(2)  rectal discomfort was likely attributable to hemorrhoids;

		(3)  discussed colon cancer screening and scheduled a colonoscopy for the following month; and 

		(4)  hypertension was benign and controlled.

9.  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, USAHRC, St. Louis, 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).  In the examining Physician's section it shows in:
	a.  Item 1 (Examiner's findings:  I find the following diagnoses to contribute to the physical limitations claimed above) the entry "Mild R [right] knee osteoarthritis - no knee film obtained."

	b.  The Disposition section the entry "Meets Medical Retention Standards."

	c.  The Action section the entry "Retain."

10.  His record contains a DA Form 3349 (Physical Profile), dated 2 May 2007, that shows he was issued a permanent physical profile with physical limitations as a result of his mild right knee arthritis.  This form also shows it was determined that he met medical retention standards at the time.

11.  His record contains three DA Forms 67-9 (Officer Evaluation Report (OER)) rendered during the period 3 July 2005 through 2 July 2008.  These reports do not indicate that his medical condition impaired his ability to perform his assigned duties.

12.  His record contains a memorandum from the Chief, The Adjutant General Directorate, USAHRC, St. Louis, dated 31 March 2009, that shows the applicant's request for retention beyond his MRD was disapproved based on the USAR not having a critical wartime shortage in his area of concentration.  It was also noted that there was only one authorized position in the USAR.

13.  The applicant's record contains and he also provides:

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

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

		(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" as the only diagnosis contributing to the physical limitations claimed by the applicant.

	b.  a letter from the Chief of Urology, VAPHCS, dated 7 April 2009, showing "[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."

	c.  a DD Form 2807-1 rendered on 8 May 2009 in conjunction with his medical examination at the Family Practice, VAPHCS, Pittsburgh, PA, for the purpose of his retirement from the USAR.  This form contains the following information:

		(1)  item 29 (Explanation of "Yes" answer(s)), shows he/his:

		(a)  had a right knee injury in 1992 and still suffered from mild right knee arthritis;

		(b)  had right knee surgery in 1993 and 1995;

		(c)  was allergic to honey and bee stings;

		(d)  prostate cancer caused residual urinary incontinence;

		(e)  high blood pressure controlled by medication;

		(f)  was a patient in 2006 at the VAPHCS, Pittsburgh, PA for care of prostate cancer and a prostatectomy; and

		(g)  was receiving VA disability for his right knee injury.

   	(2)  item 30 (Examiner's Summary and Elaboration of all Pertinent Data) shows the examining physician, Dr. V----- M----, commented that the applicant had a history of prostate cancer corrected by a robotic radical prostatectomy surgical procedure which was complicated by urinary incontinence.  The cancer was in remission with an undetectable PSA.  His hypertension was controlled by medicine.  His right knee had loose bodies corrected by three arthroscopic surgical procedures.  His cholesterol was slightly elevated and responded to fish oil tablets, diet, and exercise.  He was medically stable overall.

	d.  a DD Form 2808 [undated, but which appears to have been completed on 8 May 2009] shows the applicant was examined by Dr. V----- M---- at the Family Practice, VAPHCS, Pittsburgh, PA, for the purpose of his retirement from the USAR.  This form contains the following information:

		(1)  Item 8 (Age) shows he was 59 years old at the time;

		(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; 

		(3)  Item 75 (I have been advised of my disqualifying condition) is blank;

		(4)  Item 76 (Significant of Disqualifying Defects) is blank; and

		(5)  Item 77 (Summary of Defects and Diagnoses) shows the entry "Prostate cancer s/p Robotic prostatectomy complicated by urinary incontinence."

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

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

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

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

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

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

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

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

17.  The applicant provides as new evidence:

	a.  a letter from Dr. V----- M----, dated 10 November 2010, wherein she states the applicant "has been denied Military Retirement because of an error on my 

part in filling out Form - DD Form 2808, specifically pertaining to items 74a, 75, and 76 which were mistakenly not filled out.  I have taken care of these items and entered appropriate information for completion of DD Form 2808.  I hope the Soldier's application will now be reconsidered for retirement."

	b.  a copy of the DD Form 2808, originally rendered on 8 May 2009, wherein Dr. V----- M----and the applicant made the following handwritten modifications:

		(1)  item 74a shows the previous entry of "N/A" was erased and an "X" was placed in the block indicating the applicant was not qualified for service;

		(2)  item 75 now contains the applicant's signature and is dated 10 November 2010; and

		(3)  item 76 now contains the following entries:

		(a)  Medical Condition/Diagnosis - Prostate cancer complicated by urinary incontinence;

		(b)  ICD Code - ICD-9CM185;

		(c)  Disqualified - X; and

		(d)  Examiner Initials - VSM.

18.  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/she was unable to perform his/her 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.

	c.  Paragraph 3-13 (Special rules applicable to general and medical corps officers) provides:

		(1)  General officers and medical corps officers will not be found to be unfit by reason of physical disability if they can be expected to perform satisfactorily in an assignment appropriate to their grade, qualifications, and experience.

		(2)  General officers and medical corps officers who are processing for retirement by reason of age or length of service may not be retired for physical disability unless the initial unfitness determination of the Secretary of the Army (SA) is approved by the Secretary of Defense on the recommendation of the Assistant Secretary of Defense (Health Affairs) (ASD(HA)).

		(3)  General officers and medical corps officers not processing for retirement by reason of length of service at the time of their referral into the disability system, may not be retired or separated for physical disability until a recommendation therefore by the SA is approved by the ASD(HA). 

19.  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.

20.  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 record 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 a permanent physical disability.

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

3.  On 16 March 2007, the applicant's attending physician noted the results of the applicant's last screening test for PSA were undetectable.

4.  The applicant's DA Form 3349, dated 2 May 2007, was issued as a result of his mild right knee arthritis.  There is no mention of physical limitations resulting from prostate cancer.

5.  The applicant's DA Forms 67-9 rendered for the period 3 July 2005 through 2 July 2008 does not indicate his medical condition impaired his ability to perform his assigned duties.

6.  On 7 April 2009, the Chief of Urology, VAPHCS, stated the applicant's prostate cancer remained under good control.

7.  On 8 May 2009, at a medical examination for the purpose of retirement,
Dr. V----- M---- documented the applicant's medical condition and opined that he was "medically stable overall;" however, she made no determination on the applicant's qualification for service.  Therefore, the applicant was not disqualified for further service based on his medical condition.

8.  Additionally, the applicant clearly believed himself to be sufficiently fit for continuation in the Army to have requested, in 2009, retention beyond his MRD.  Therefore, in the absence of evidence to the contrary, it is presumed the applicant was medically qualified for continued/further service at that time.

9.  The fact that Dr. V----- M---- subsequently rendered a letter indicating she had improperly completed the documentation during the applicant's retirement physical is noted.  However, in view of the fact that the applicant was not determined to be unfit prior to the time at which he was outprocessing due to reaching his MRD for maximum age; Dr. V----- M----'s omissions were not significantly mitigating to show the applicant's medical condition impaired his ability to perform his assigned duties.

10.  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.

11.  Army Regulation 635-40 stipulates that medical corps officers will not be found to be unfit by reason of physical disability if they can be expected to perform satisfactorily in an assignment appropriate to their grade, qualifications, and experience.

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 to amend the decision of the ABCMR set forth in Docket Number AR20100011836, dated 29 October 2010.



      ____________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)                                         AR20100028466



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ABCMR Record of Proceedings (cont)                                         AR20100028466



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