IN THE CASE OF: 

		BOARD DATE: 2 October 2014

		DOCKET NUMBER:  AR20130022256 


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 the records of her deceased spouse, a retired former service member (FSM), be corrected to show he remained on active duty until the date of his death, rather than showing he was retired due to permanent disability. 

2.  The applicant states:

	a.  The FSM joined the Army in September 1983 and went to basic training in June 1984.  They married in September 1995.  The FSM deployed to Operation Desert Storm and served in Korea, Iraq, and Germany.  He attained the rank of Command Sergeant Major (CSM).

	b.  In September 2012,  while in Germany, he was diagnosed with cancer.  He was sent to Walter Reed Hospital for treatment.  He was then referred to an oncologist in Omaha, Nebraska, where he was hospitalized for chemotherapy treatments.  He continued to receive chemotherapy treatments and was later hospitalized in Manhattan, Kansas, due to the treatment side effects.

	c.  On 10 March 2013, his separation process started.  He also continued to receive rounds of chemotherapy treatment and was very miserable and in pain.  On 9 June 2013, he was hospitalized in Manhattan, Kansas for the final time.

	d.  On 18 June 2013, he was retired due to permanent physical disability.  He was transferred to hospice care on 21 June 2013 and died on 22 June 2013.

	e.  Her husband's illness met the criteria for him to be considered a Wounded Warrior:

		(1)  it was incurred in the line of duty;

		(2)  it was a fatal/incurable disease with limited life expectancy;

		(3)  he was rated at 100% disabled; and

		(4)  it was a combat-related disease.
	
	f.  They never considered he would be separated or even retired.  Someone should have told him that he was not in the best state of mind to make a major decision like separation while he was receiving chemotherapy treatment, and he should have given himself a little more time to heal.

	g.  Her husband did not receive the military honors and recognition that he deserved:

		(1)  He did not get military honors at his funeral because of a mix-up with the Department of the Army (DA).  The right group was not notified to provide the military honors.

		(2)  A casualty assistance officer was not assigned to prepare the proper forms until 16 August 2013.

		(3)  These mix-ups would not have happened had he still been on active duty.

	h.  His dedication was evident by his receipt of several awards, including two Bronze Star Medals, a Legion of Merit that was presented at his 11 July 2013 Memorial Service, and his induction into the Audie Murphy Club and the Order of St. George.

	i.  She questions the appropriateness of medically separating/retiring Soldiers with service-related illness or injuries before they have had time to heal.  Her husband was diagnosed with cancer in December 2012 and the separation process was started in February 2013.  He was in the middle of receiving harsh chemicals when the separation process was started.  

	j.  His separation order is incorrect.  His disability is not recognized as service-related.

	k.  To best recognize her husband for his dedicated service and the ultimate sacrifice he made of himself, his separation orders and DD Form 214 should be rescinded and he should be reinstated to active duty to show he died while serving our country.

3.  The applicant provides:

* a letter from counsel 
* Memorial Service DVD (not included with the packet)
* Disability Evaluation System Proposed Rating, dated 13 March 2013
* 17 April 2013, orders announcing the FSM's retirement due to 100 percent (%) disability effective 18 June 2013
* FSM's DD Form 214
* FSM's Certificate of Death

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the FSM's duty status be amended to reflect he was on active duty when he died.

2.  Counsel states:

	a.  The FSM died of a service-connected condition (Gulf War Syndrome) on 22 June 2013, three days after he was separated from the Army.  The applicant believes her husband's separation from the Army is what killed him.  

	b.  The FSM's separation process commenced in April 2013 and would have required full cognition from him on that date; however, his physician, who cared for him in the terminal phases of his disease, has stated the FSM was experiencing episodes of delirium and was having difficulty with cognition during that time.  The FSM was not able to make complicated decisions due to his condition and the unpredictable effects of his medication.

	c.  Pursuant to Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 3-6, in the event the service member is not going to recover from an illness or injury there should be no separation action taken, until there has been a medical determination that the Soldier has attained optimum hospital improvement.  This means that in March or April 2013, while he was still undergoing chemotherapy, he should not have been going through a pending separation action. 

3.  Counsel provides a letter from the FSM's doctor.


CONSIDERATION OF EVIDENCE:

1.  The FSM's records show he enlisted in the Regular Army on 26 June 1984 and he held military occupational specialty (MOS) 19Z (Armor Senior Sergeant).  

2.  A DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings), dated 20 March 2013, found the FSM physically unfit and recommended he be permanently retired with a disability rating of 100%.  

	a.  Section III (Medical Conditions Determined To Be Unfitting) shows Disability 1 was incurred in the line of duty.   The disability description is:

		(1)  Undifferentiated embryonal liver sarcoma with metasis.

		(2)  "Liver condition manifested in August 2012 with worsening gastric reflux and vomiting, with workup significant for abnormal liver function studies and MRI demonstrating mass, subsequently diagnosed as undifferentiated embryonal liver sarcoma, surgically resected in October 2012.  Post-operative treatment including chemotherapy has insufficiently improved symptoms such as fatigue, rendering condition unfitting as it interferes with Soldier's reasonable performance of all functional activities per DA 3349 dated 01FEB2013.  Soldier's condition will not improve to a level allowing a return to full unrestricted military duty status."

	b.  Section V (Administrative Determinations):

		(1)  "The disability disposition is not based on disease or injury incurred in the line of duty in combat with an enemy of the United States as a direct result of armed conflict or cause by an instrumentality of war and incurred in the line of duty during a period of war (5 USC 8332, 3502, and 6303)."  

		(2)  The disability did not result from a combat-related injury under the provisions of 26 USC 1045 or 10 USC 10216."

	c.  Section IX (Soldier's Election) shows that he concurred and waived a formal hearing of his case, did not request reconsideration of his Department of Veterans Affairs (VA) ratings, and signed the form with the date of 19 March 2013.

3.  Counsel provides an undated letter from the FSM’s doctor at Cancer Center of Kansas.  The doctor stated the FSM has been under his care in the terminal phases of his disease.  There were episodes of delirium and difficulty with cognition.  He would not have been able to make complicated decisions during the terminal phase of his disease as a result of his condition and the unpredictable effects of his medication.  He had been receiving chemotherapy and also the tumor was quite extensive, and he required paid medication.

4.  The FSM was retired as a CSM on 18 June 2013, due to permanent disability (enhanced).   His DD Form 214 shows he had served 28 years, 11 months, and 23 days of active duty service.  He had served in Saudi Arabia and Iraq twice.

5.  A DA Form 4648 (Preseparation Counseling Checklist), dated 11 June 2013, shows "Client is being medically retired from Active Duty.  His retirement plans are unclear at this time pending the outcome of his medical condition.  Spouse attended this preseparation counseling session in his stead, as he is hospitalized and incapacitated."

6.  The FSM died on 22 June 2013.

7.  The applicant provides a copy of the FSM's orders announcing his retirement due to permanent disability.  The orders state:

	a.  "Disability is based on injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war as defined by law:  No."

	b.  "Disability resulted from a combat related injury as defined in 26 USC 104: No."

8.  Army Regulation 635-40, dated 20 March 2012, establishes the Army Physical Disability Evaluation System according to the provisions of chapter 61 of Title 10, U.S. Code, and DOD Directive 1332.18.  It sets forth policies, responsibilities, and procedures that apply in determining whether a soldier is unfit because of physical disability.

	a.  Paragraph 3-6 (Length of Hospitalization) states:  Providing definitive medical care to active duty Soldiers requiring prolonged hospitalization who are unlikely to return to active duty is not within the DA mission.  The time at which a Soldier should be processed for disability retirement or separation must be decided on an individual basis.  The interest of both the Army and the Soldier must be considered.  A Soldier may not be retained or separated solely to increase retirement or separation benefits.  Soldiers who are medically unfit and not likely to return to duty should be processed for disability retirement or separation when it is decided that they have attained optimum hospital improvement.

	b.  Paragraph 3-14b (Factors governing time of processing) states Soldiers having a prognosis of imminent death shall be evaluated and processed in a comparable manner and procedural sequence to that of all other Soldiers.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant and her counsel contend the FSM should not have been processed for disability retirement while he was undergoing treatment for cancer. They request his separation orders and DD Form 214 be rescinded and he be considered to have died while on active duty.  The applicant also contends his separation orders are incorrect because his disability is not recognized as service-related.

2.  The DA Form 199 shows the FSM's liver condition manifested in August 2012. He was treated and it was determined that his condition would not improve to a level allowing a return to full unrestricted military duty status.  An informal PEB found him physically unfit and recommended permanent disability retirement at 100%.

3.  Counsel provides an undated letter from the FSM’s doctor which stated the FSM has been under his care in the terminal phases of his disease.  The letter noted the FSM would not have been able to make complicated decisions during the terminal phase of his disease as a result of his condition and the unpredictable effects of his medication.  The letter also stated that he had been receiving chemotherapy, but does not state when that chemotherapy ended.

4.  However, neither does the doctor’s letter state that chemotherapy would have cured the FSM’s “terminal illness.”  Chemotherapy cannot cure all types of cancer but may often be used just to prolong life (for example, from a prognosis of 5 – 6 months without chemotherapy to a prognosis of 10 – 12 months with chemotherapy).  But again, the doctor’s letter does not state chemotherapy would have reversed the “terminal illness” (i.e., have given him optimum hospital improvement). 

5.  The governing regulation states that providing definitive medical care to active duty Soldiers requiring prolonged hospitalization who are unlikely to return to active duty is not within the DA mission.  Soldiers who are medically unfit and not likely to return to duty should be processed for disability retirement or separation when it is decided that they have attained optimum hospital improvement.

6.  A Soldier does not have much choice about being medically retired.  There are basically two options a Soldier does have when it comes to disability processing – he may either argue that he is not unfit for duty, or he may argue that he should have gotten a higher disability rating.  

7.  The FSM clearly was not fit for duty, and he had already been rated at 100%. There was nothing for the FSM to contest even if he had not had difficulty with cognition.  He was properly determined to be ready for medical retirement.

8.  The comments in the FSM's separation orders do not relate to whether his disability is service-related, only whether or not his disability was based on injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war as defined by law or whether the disability resulted from a combat related injury as defined in 26 USC 104.  

9.  The FSM's death is indeed tragic.  However, the applicant has not shown an error or an injustice in the processing of his retirement due to permanent disability.  Therefore, there is insufficient evidence to grant her 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 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)                                         AR20130018524



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ABCMR Record of Proceedings (cont)                                         AR20130022256



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