IN THE CASE OF: 

		BOARD DATE:	    1 November 2012

		DOCKET NUMBER:  AR20120004639 


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 medical retirement.

2.  He also requests correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his service in Kuwait.

3.  The applicant states:

* he completed 25 years of military service and he was transferred to the Retired Reserve in 2006; he was recalled to active duty under the Retiree Recall Program in 2008
* In 2010, he was ravaged with multiple malignancies and tumors that required multiple surgeries; just prior to his orders ending, he had another malignant melanoma that required more surgery
* He was advised he should stay close to a dermatologist for quarterly examinations
* Just prior to finishing his outgoing physical, he noticed an unusual lesion on the left shin but he was denied care due to the expiration of his orders
* He was finally allowed treatment through the Department of Veterans Affairs (VA) where his malignant melanoma was confirmed
* Officials at the U.S. Army Human Resources Command (HRC) advised him to seek treatment through the VA
* During 2010, he suffered an accidental fall during physical fitness training that left him with spinal injuries
* 
It was determined he suffered from C3-4 bulge, C4-5 degeneration, right foraminal stenosis, C5-6 degeneration, and extreme headache
* He was also diagnosed with lumbar nerve root compression, backache, degeneration of lumbar or lumbosacral intervertebral disc, spinal stenosis of lumbar region, lumbar disc displacement/herniation, neck sprain, and cervical spine pain
* He was also diagnosed with degeneration of cervical intervertebral disc, cervical disc displacement herniation, spinal stenosis in cervical region, lumbar facet syndrome, and lumbar sprain
* His commander referred him to the Active Duty Medical Extension (ADME) program but he was denied as he did not meet the criteria
* He also did not meet the criteria to enter the Warrior Transition Unit (WTU) because his orders had expired
* He left the military with two dependent children and no income, healthcare, or home
* The VA rated him at 100% service-connection for the cancer and an additional 80% for the fall
* Every medical issue was captured in his outgoing physical

4.  The applicant provides:

* Extract of Army Regulation 40-501 (Standards of Medical Fitness)
* VA rating decision with allied documents, medical forms, evaluations, checklists, progress notes, and various civilian and/or service medical records throughout his military service
* VA rating decision
* Elected medical records, some undated and some missing continuation pages, from Advanced Pain Medicine Institute, Chevy Chase, MD
* Patient Laboratory Inquiry
* Radiological Examination Report
* 2008 Standard Forms 600 (Chronological Record of Medical Care)
* HRC denial memorandum of ADME
* Notification of Eligibility for Retired Pay at Age 60 (20-year letter)
* Reconstructed DA Forms 2173 (Statement of Medical Examination and Duty Status) and Line of Duty memoranda, dated 1 March 2011, as follows:

* Left Posterior Auricular Scalp Malignant Melanoma, 24 January 2011
* C-4, C-5 mild neural stenosis; L-4, L-5 small posterior annular tear; mild multilevel degenerative disc disease, 22 April 2010
* Proximal Scalp Residual Basal Cell Carcinoma, 24 January 2011

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 11 June 1968.

2.  Having had prior enlisted service, he was appointed as a Reserve commissioned officer of the Army National Guard (ARNG) and he executed an oath of office on 5 August 1989.  He served in a variety of assignments and attained the rank of captain.

3.  He was honorably discharged from the ARNG on 27 October 2000 (voluntary resignation) and he was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement).  On 9 September 2002, he was transferred to the 310th Adjutant General (AG) Group, Fort Jackson, SC, a troop program unit (TPU).

4.  He underwent a retention physical on 12 May 2005.  He completed a
DD Form 2807-1 (Report of Medical History) and listed:

* motor vehicle accident, roll-over of a sport utility vehicle, L-4/L5 and S-1 facet damage; he was treated with facet block/injections and prescribed medication 
* acalculus cholecystitis (acute necro-inflammatory disease of the gallbladder)

5.  His overall examination determined he was qualified for service.  His DD Form 2808 (Report of Medical Examination) noted in:

* Item 76 (Significant or Disqualifying Defects) - degenerative disc disease, lumbar spine
* Item 77 (Summary of Defects and Diagnosis) - degenerative disc disease L3-L5/S-1, lipioma (benign tumor), and acalculus cholecystitis

6.  On 13 January 2006, the U.S. Army Reserve Personnel Command, St. Louis, MO, issued him a memorandum, subject:  Notification of Eligibility for Retired Pay at Age 60 (20-year letter).

7.  On 1 February 2006, he was issued a permanent physical profile by the HRC, St. Louis Assistant Command Surgeon for lumbar degenerative disc disease.  The DA Form 3349 (Physical Profile) shows in item 10 (Other: e.g. functional limitations and capabilities and other comments):

* Failure to comply with request for additional medical information
* 
Limit walk in combat boots 1/4 mile; no ruck march
* Does not meet medical retention standards in accordance with Army Regulation 40-501, paragraph 3-41e, lumbar degenerative disease

8.  Attached to this DA Form 3349, in his official records, is a Standard Form 507 (Medical Record) that shows the following entries:

* 19 October 2005, request additional information, degenerative disc disease, acalculus cholecystitis, HIV results, hearing testing not completed
* 10 January 2006, request additional information; mailed service member request for additional information
* 2 February 2006, failure to comply with request for additional information; based on review of medical information available from physical examination, Soldier does not meet retention standards IAW Army Regulation 40-501, paragraph 3-41e, lumbar degenerative disc disease
* 2 February 2006, the Assistant Command Surgeon approved the finding

9.  The applicant was discharged from the USAR and he was transferred to the Retired Reserve on 27 June 2006.  His Army Reserve Personnel Command (ARPC) Form 249-E (Chronological Statement of Retirement Points) shows he completed 20 qualifying years of service for retirement.  The orders that transferred him to the Retired Reserve are not available for review with this case. The applicant indicated he would send a copy but he never did. 

10.  Orders A-03-805280, issued by HRC, Alexandria, VA, dated 24 March 2008, voluntarily recalled the applicant to active duty from retired status for 365 days in support of the Armed Forces Inauguration (AFI) Command, with a reporting date of 30 March 2008.  He was assigned to Fort Myer, VA, and attached to Joint Task Force AFI, Fort McNair, DC.

11.  On 15 April 2008, he underwent what is shown as a retirement physical.  The attending physician made some illegible entries but indicated the applicant was qualified for retirement IAW Army Regulation 40-501. 

12.  On 3 April 2009, the applicant was issued a permanent physical profile for back pain and HFHL (high frequency hearing loss) that assigned him the number "2" in the lower extremities and a "3 in the hearing portion of his PULHES.  The DA Form 3349, signed by the HRC, St. Louis Assistant Command Surgeon noted in item 10 the entry "Waiver HFHL Retiree Recall."

13.  Orders A-03-908473, issued by HRC, St. Louis, dated 17 March 2009, ordered his voluntary recall to active duty from retired status for 365 days to fulfill 
active duty requirements with a reporting date of 30 March 2009 and ending on 29 March 2010.  He was assigned to the Charlotte Military Entrance Processing Station (MEPS), Charlotte, NC. 

14.  Orders A-03-908473A01, issued by HRC, St Louis, dated 17 March 2010, amended Orders A-03-908473, dated 17 March 2009, extending the applicant's period of active duty from 365 days ending on 29 March 2010 to 670 days ending on 28 January 2011.

15.  At some point, some MEPS positions were realigned that resulted in the applicant's reassignment to the Baltimore/Fort Meade (MD) MEPS.  The orders that transferred him are not available for review with this case.  The applicant indicated he would send a copy but he never did.

16.  On 28 February 2011, an official at the U.S. Army Medical Activity, Fort Meade, issued three separate DA Forms 2173 documenting the applicant's following injuries and/or disease.  All three forms were signed by Lieutenant Colonel CB, Commander, Baltimore MEPS.  Additionally, all three forms have memoranda, dated 1 March 2011, and signed by the Deputy Commander for Clinical Services, Fort Meade, indicating each injury/disease was "in line of duty:"

* left Proximal Scalp Residual Basal Cell Carcinoma, 24 January 2011
* left Posterior Auricular Scalp Malignant Melanoma, 24 January 2011
* C-4, C-5 mild neural stenosis; L-4, L-5 small posterior annular tear; mild multilevel degenerative disc disease, 22 April 2010

17.  Orders A-03-908473A03, issued by HRC, Fort Knox, KY, dated 30 March 2011, amended Orders A-03-908473, dated 17 March 2009, that extended the applicant's period of active duty from 730 days ending on 29 March 2011 to
760 days ending on 28 April 2011.

18.  The applicant was honorably released from active duty on 28 April 2011 by reason of completion of required active service.  His DD Form 214 shows he completed 3 years and 29 days of creditable active service during this period.  His DD Form 214 also shows in:

* Item 12f (Foreign Service) the entry "0000  00  00"
* Item 18 (Remarks) no entry regarding combat service

19.  An email from the Defense Finance and Accounting Service (DFAS), dated
7 August 2012, stated there is no history of the applicant receiving hazardous 
fire/imminent danger pay (HF/IDP) or combat zone tax exclusion (CZTE) for any deployments from March 2008 through April 2011. 
20.  Per phone conversation between a staff member of the Board and the applicant on 6 August 2012, he indicated he did not receive any officer evaluation reports during his period of active duty service.

21.  He provides multiple medical documents and/or raises several issues.  The documents he provides show, in pertinent part:

	a.  While on active duty he had one melanoma removed by biopsy and wide local excision and a basal cell carcinoma removed by simple excision.  His surgeries consisted of two relatively simple skin procedures.

	b.  He had a non-metastatic melanoma that was removed with simple excision by the VA several months after his discharge.  It required only one procedure.

	c.  Almost a year after he fell, he reported that he slipped on some stairs while walking his dog.  

	d.  He had x-rays as follows:  "2 October 2008 C-spine x-rays for "rear ended two weeks ago with continuing neck pain," x-ray was normal:  26 October 2010 neck, for chronic neck pain radiating to shoulder blades; there were mild degenerative changes from C3-7 with no significant spinal canal or neural foraminal stenosis:  17 August 2009 lumbar spine x-rays for "fall in boat" with back pain described as 9 out of 10 on the pain scale: normal x-ray."

	e.  His 24 January 2011 pathology report reads; "Malignant melanoma   No lymph or vascular invasion.   Extended to within 4 mm of lateral margin and to within 4 mm of deep margin."  This lesion was totally excised with clear margins.

	f.  VA rating decision that shows an unknown date subsequent to his release from active duty, the VA awarded him service-connected disability compensation as follows:

* Malignant melanoma, claimed with left posterior auricular scalp and facial pain, 100%
* Migraine, 30%
* Small left focal disc protrusion at the L4-L5 spine level, 20%
* Radiculopathy, right lower extremity, 20%
* Spinal stenosis cervical, 20%
* Tinnitus, 10%
* Temporomandibibular joint disorder, 10%
* Radiculopathy, right lower extremity, 20%
* Bilateral hearing loss, 0%
* Basel cell carcinoma of forehead, 0%
* Hypertension, 0%

22.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) 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 or her office, grade, rank, or rating.  Under the laws governing the Army PDES, Soldiers who sustain or aggravate physically unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and/or severance pay benefits:

* the disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty for training
* the disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence

23.  This regulation further states in:

	a.  Chapter 3 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 his or her office, grade, rank, or rating.

	b.  Paragraph 3-1(d) that although the ability of a Soldier to reasonably perform his or her duties in all geographic locations under all conceivable circumstances is a key to maintaining an effective and fit force, this criterion (worldwide deployability) will not serve as the sole basis for a finding of unfitness.

	c.  Paragraph 3-2b that when a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement creates a presumption that the Soldier is fit.  The presumption of fitness may be overcome if the evidence establishes that the Soldier was, in fact, physically unable to adequately perform the duties of his or her office, grade, rank, or rating for a period of time because of a disability.

	d.  Paragraph 3-3b(1) that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his/her office, grade, rank or rating.
24.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement).  Once a determination of physical unfitness is made, a physical evaluation board (PEB) rates all disabilities using the VA Schedule of Rating Disabilities (VASRD).  Chapter 3 lists various conditions that warrant referral to a medical evaluation board (MEB).

	a.  MEBs are convened to document a service member's medical status and duty limitations insofar as duty is affected by the member's medical status.  Situations that require consideration by a MEB include those involving Reserve component personnel on active duty for training (ADT) or inactive duty for training (IDT), whose fitness for further military service upon completion of hospitalization is questionable, and those who require hospitalization beyond the termination of their tour of duty.  Consideration by a MEB also includes those involving a Reserve component member who requires evaluation because of a condition that may render him unfit for further duty.

	b.  PEBs 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.

25.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher VA rating does not establish error or injustice on the part of the Army.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The VA does not have the authority or responsibility for determining physical fitness for military service.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  These two government agencies operate under different policies.  Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

26.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  Chapter 2 contains guidance on the preparation of the DD Form 214.  It states for:

* block 12f enter the total amount of foreign service completed during the period covered by the DD Form 214
* block 18 for an active duty Soldier deployed with his or her unit during their continuous period of active service, enter the statement "Service in (Name of Country Deployed) From "YYYYMMDD - YYYYMMDD)"

DISCUSSION AND CONCLUSIONS:

1.  The applicant is a Retired Reserve officer recalled to active duty for a period of 3 years.  He worked in medical processing at the Baltimore MEPS.  He completed a 3-year period of mobilization in 2011.  At the end of that mobilization he sought to enter the WTU but a Medical Review Board did not find sufficient evidence to retain him for medical treatment.

2.  The applicant served in the ARNG/USAR as a commissioned officer between August 1989 and June 2006.  He was issued a physical profile in February 2006 for lumbar degenerative disc disease.  He was previously advised by the office of the Command Surgeon between October 2005 and February 2006, to submit additional documentation in relation to this condition; however, he failed to do so. A subsequent review of available documents by the Command Surgeon determined the applicant did not meet retention standards IAW Army Regulation 40-501, chapter 3-41e, lumbar degenerative disc disease.

3.  Since he no longer met retention standards and he had completed 20 qualifying years of service at that time, he was appropriately discharged from the USAR and transferred to the Retired Reserve on 27 June 2006.

4.  In 2008, he volunteered to enter active duty under the Retiree Recall Program.  He was initially ordered to active duty for 365 days in support of the AFI Command.  Prior to release from active duty, he underwent a physical examination that waived his hearing issues and extended him on active duty multiple times.

5.  He provides a self-authored statement that makes several allegations that are inconsistent with the available medical records.

	a.  He states he was ravaged by multiple malignancies and tumors which required multiple surgeries.  The available evidence shows while on active duty he had one melanoma removed by biopsy and wide local excision and a basal cell carcinoma removed by simple excision.  His surgeries consisted of two relatively simple skin procedures.

	b.  He states the latest tumor on his leg was again a malignant melanoma and required multiple surgeries making it impossible to find and keep a civilian job.  The available evidence shows he had a non-metastatic melanoma that was removed with simple excision by the VA several months after his discharge.  It required only one procedure.

	c.  He also states that during 2010 he suffered an accidental fall of over
30 feet while doing physical training.  The available records shows:

		(1)  Almost a year after the event he reported that he slipped on some stairs while walking his dog.  The 30 feet is repeated by several examiners because that is the history he gave.  A slip on stairs results in falling down 2 or 3 stairs and getting some bruised knees.  To fall over 30 feet on stairs would 
require rolling down 3 flights of stairs including 2 landings.   Medical personnel refused him entrance to the WTU (almost a year later) based on lack of significant injury.  There is no evidence that he sought or received care for any injury.  He was given a permanent L3 physical profile by the Reserves in February 2006.

		(2)  This profile was based on his declaration on his annual medical certificate and his history on a DD Form 2807-1 completed as part of a retention physical.  The profile was a result of his failure to provide additional medical information that was requested.  The profile was for degenerative disc disease.  On his Functional Capacity Certificate he listed L4/L5 atrophy and L4/L5 /S1 facet injury as the reason for his inability to complete a host of physical tasks.  He stated on his DD Form 2807-1 (12 May 2005) that he was taking Percocet for his back pain and that it was attributed to a "roll over" MVA (no date).

		(3)  On his 2008 physical for mobilization he denied any history of back or joint pain.  His complete medical records from his mobilization in 2008 are not available for review and there is no indication of his function during 3 years of activation until 2011 when he claimed a fall in 2010.  However, the record shows that he had x-rays as follows:  "2 October 2008 C-spine x-rays for "rear ended two weeks ago with continuing neck pain," x-ray was normal:  26 October 2010 neck, for chronic neck pain radiating to shoulder blades; there were mild degenerative changes from C3-7 with no significant spinal canal or neural foraminal stenosis:  17 August 2009 lumbar spine x-rays for "fall in boat" with back pain described as 9 out of 10 on the pain scale: normal x-ray."

	d.  He states the VA has rated him at 100% just on the cancer.  However, the VA rating was temporary due to the scalp lesion that required a skin flap for repair.  The VASRD allows a temporary rating of 100% for any cancer resection that requires more than simple excision.  In this case, after simple excision, a flap of his own skin was rotated and sutured into place to cover the defect.  He has never had metastatic disease and his local malignancies never required more than skin surgery.

6.  The applicant provides 3 LODs.  None of the LODs are related to any service- connected condition that resulted in a termination of his military career.  None of the DA Forms 2173 are signed by a health practitioner.  The LODs document two skin surgeries for skin cancer and an MRI for back pain and are approved by the Deputy Commander for Clinical Services (DCCS) of the Fort Meade clinic.  The LODs are as follows:

	a.  LOD for melanoma on his scalp.  This LOD documents that he had a melanoma excised while entitled to base pay and that the melanoma was not due to his own misconduct

	b.  LOD for C-4, C-5 mild neural stenosis, L-4, L-5 small posterior annular tear:  mild multilevel degenerative disc disease.  This LOD documents that while entitled to base pay he had an MRI with the above findings and that the MRI was not due to his own misconduct.  This LOD does not document that his degenerative (age-related) changes on MRI were due to a fall.  The applicant claimed on this DA 2173 that he fell down "30 foot flight of stairs" on 17 April 2010.  The DA 2173 was generated on 11 February 2011.  It (the MRI findings, not the "fall") was approved on 1 March 2011 and the applicant requested an Active Duty Medical Extension (ADME) on 23 March 2011; however, it was denied.

	c.  LOD for proximal scalp residual basal cell carcinoma.  This LOD documents he had a basal cell carcinoma that was not due to his own misconduct.

7.  He argues that the LODs should have triggered at least a referral to an MEB. The applicant did not require referral to an MEB for the following reasons:

	a.  He was completely cured of his melanoma.  It was not invasive and was completely excised.  Although at risk for developing another melanoma someday, this is not unfitting.  His 24 January 2011 pathology report reads; "Malignant melanoma   No lymph or vascular invasion.   Extended to within 4 mm of lateral margin and to within 4 mm of deep margin."  This lesion was totally excised with clear margins.
	b.  He was completely cured of his Basal Cell Carcinoma.  Even if this were not the case, Basal Cell Carcinomas do not metastasize and are only locally invasive.

	c.  He has an LOD that documents he underwent an MRI that showed age-related degenerative changes of the lumbar and cervical spine.  Not only did this condition exist prior to service and resulted in an L3 profile, it had apparently improved while on active duty (L2 Profile) until the applicant neared the end of his active duty orders.  This improvement is juxtaposed against the requirement that his condition be permanently service-aggravated in order to be compensable.  There is no evidence that his condition was aggravated at all.  If the applicant could show aggravation, it would need to be progression beyond what is normally expected from the natural course of the disease and it would have to fall below retention standards.

	d.  Although the applicant sought to document an injury that worsened his back symptoms, his claim to have fallen down 3 flights of stairs is not credible.  There is no documentation that he sought any evaluation or treatment in April 2010 for a fall or any other injury.  In February 2011, as his active duty orders were expiring, he sought an LOD for an alleged fall almost a year earlier but only obtained an LOD for MRI findings.  The MRI documented degenerative changes.  It did not document any trauma.

	e.  There is no profile or other evidence that the applicant could not perform his duties.  There is documentation that the applicant sought a medical extension.  The Medical Review Board reviewed his medical records and determined he did not meet the requirements for ADME and that he also did not meet the requirements for assignment to the WTU or for subsequent treatment through a Community-Based WTU.  This Medical Review Board finding is a de facto finding that the applicant did not merit referral to an MEB.

8.  The applicant did not have a medical condition that warranted referral to an MEB.  He raised the issue prior to discharge and the Medical Review Board did not find any reason for an ADME.  He was denied placement in a WTU either for healing or for an MEB.  Although he had back pain from degenerative changes that resulted in a medical disqualification in 2006 (and placement in the Retired Reserve) his condition apparently improved during active service.  There is no evidence that his non service-connected condition was permanently exacerbated beyond the normal progression of the disease.  In fact, there is no credible evidence that it was exacerbated at all.

9.  As for his service in Kuwait, he neither indicated the dates of service in Kuwait nor supported his contention with any evidence.  Additionally, there is no evidence in his military personnel or finance records and he provides none to show he completed any period of foreign service in Kuwait.  As such, there is an insufficient evidentiary basis for granting this portion of his 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)                                         AR20120004639



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ABCMR Record of Proceedings (cont)                                         AR20120004639



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