IN THE CASE OF: 

		BOARD DATE: 20 June 2013

		DOCKET NUMBER:  AR20120018325 


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 his honorable discharge be changed to a medical retirement (retroactive to his date of discharge).

2.  The applicant states that:

	a.  he developed a medical condition while on active duty that caused him to be unable to reenlist.  His chain of command was aware he was receiving treatment for an autoimmune condition which included chemotherapy and blood transfusions.  He was denied the opportunity to serve in Iraq because of the medical condition.  Sergeant Major (SGM) S____ said he would be more of a hindrance than a help in Iraq because they did not have the ability to give him chemotherapy there. 

	b.  he believes he should have been medically discharged because he was unable to perform his duties as a staff sergeant during an active duty conflict.  Chief Warrant Officer Four (CW4) James R____ and SGM Linda P____ were both made aware of his medical condition and allowed him to leave his duties during the day in order for him to receive his chemotherapy treatment.  In summary, the applicant's chain of command was totally aware of his medical and physical condition.  They moved him from outside guard duty to a sit-down job in the emergency operations center (EOC).

	c.  he was never told he should seek a medical review board so he could be discharged with a medical retirement.  

3.  The applicant provides:

* a 12 April 2012 letter from SGM Linda E. P____
* a 4 May 2012 letter from Mr. Paul L____, Vermont Cancer Center
* medical treatment records
* military personnel records

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Vermont Army National Guard (VTARNG) on
5 June 1976.  He held military occupational specialties 94B (Food Service Specialist) and 52D (Power Generation Equipment Repairer).

3.  He last served on active duty from 23 August 2003 through 31 January 2004.

4.  He was released from active duty due to completion of required service on 
31 January 2004 as a staff sergeant/E-6.  He had completed 5 months and 
8 days of active duty service during the period covered by the DD Form 214.  He had 1 year, 10 months, and 23 days of prior active duty service and 19 years and 1 month of prior inactive duty service.  

5.  A National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows he was honorably discharged from the VTARNG due to expiration of term of service effective 18 March 2005 as a sergeant/E-5.

6.  The applicant provides medical records showing that:

	a.   On 16 July 2003, while confined in the Vermont Department of Corrections, he requested medical services.  The nature of the problem was:  constant shortness of breath and constant headache, continuing diarrhea and total lack of energy and rapid heartbeat.  He was admitted to the Fletcher Allen Health Care Center, Burlington, Vermont, with a primary diagnosis of autoimmune hemolytic anemia and a secondary diagnosis of neoplasm of uncertain behavior of lymphatic and hematopoietic tissue.  He was scheduled for a bone marrow biopsy and transfusion of packed cells.

	b.  On 8 January 2004, his treating hematologist was asked to opine on his “fitness for military duty and continued service.”  His doctor noted that the applicant had responded well to treatment and was currently on monthly checkups.  He stated the applicant’s prognosis was uncertain and that he would need to be monitored monthly for a while to watch for recurrence.  He stated, “There are no solid grounds for recommending permanent physical limitations presently.”  He concluded, “The patient even if not fit for strenuous physical activity as can be found in battlefield duty, is certainly fit for physical duties, but of a less intensive nature currently and this situation may improve over time.”

	c.  On 12 February 2004, in a Fletcher Allen Physical Therapy initial evaluation he stated that, on 20 December 2003, he fell on the ice and landed directly on his left shoulder.  He received an initial evaluation and instruction and performance of a home exercise program.

	d.  a 22 June 2005 Progress/Follow-up note shows he returned to Fletcher Allen Health Care to continue management of autoimmune hemolytic anemia related to a cold agglutinin.   

7.  In addition to the medical records he provides a:

	a.  12 April 2012 letter from SGM (Retired) Linda E. P____ who states the applicant worked for her from approximately 12 Sep 2001 to January 2004.  She also states that in 2003, the applicant was diagnosed with autoimmune hemolytic anemia and that he was allowed to take time off to receive chemotherapy treatments and to attend doctor appointments related to his disease.

	b.  4 May 2012 letter from Paul L____, Vermont Center, who states the applicant established care with the hematology department at Fletcher Allen Health Care in July 2003.  Treatment with chemotherapy and corticosteroids was initiated and eventually was completed in February 2004.  He relapsed in early 2005 and continues in treatment.  Given the rigors of his treatment, it was necessary for the applicant to excuse himself from his commitments to the National Guard. 

8.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of a physical disability.  Under the laws governing the Army Physical Disability Evaluation System (PDES) Soldiers who sustain or aggravate physically unfitting disabilities must meet several line of duty criteria to be eligible to receive retirement and severance pay benefits.  One of the criteria is that the disability must have been incurred or aggravated while the Soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training.

9.  Army Regulation 635-40 also states 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 (world-wide deployability) will not serve as the sole basis for a finding of
unfitness.

10.  Army Regulation 40-501 (Standards of Medical Fitness) states a cause for referral to an MEB includes anemia, hereditary, acquired, aplastic, or unspecified, when response to therapy is unsatisfactory, or when therapy is such as to require prolonged, intensive medical supervision.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence shows that on 16 July 2003, while confined in the Vermont Department of Corrections, he requested medical services.  He was admitted to the Fletcher Allen Health Care Center, Burlington, Vermont, with a primary diagnosis of autoimmune hemolytic anemia and secondary diagnosis of neoplasm of uncertain behavior of lymphatic and hematopoietic tissue.  He was not on active duty when diagnosed with this disease.  He last served on active duty from 23 August 2003 through 31 January 2004.

2.  There is no evidence showing he acquired the disease while on active duty or that the disease impaired his ability to perform his duties.  To the contrary, in January 2004 he was found fit for physical duties even though he could not deploy (and world-wide deployability will not serve as the sole basis for a finding of unfitness).

3.  There is no available evidence to show his response to therapy was unsatisfactory, or that his therapy required prolonged, intensive medical supervision.

4.  In view of the above, there is insufficient evidence to grant the requested relief.



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 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)                                         AR20110020185



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ABCMR Record of Proceedings (cont)                                         AR20120018325



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