BOARD DATE:	4 September 2014

		DOCKET NUMBER:  AR20140001100


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, in effect, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) ending on 7 June 2011 to show he was separated from active duty due to physical disability.

2.  The applicant states he joined the Regular Army in August 2002.  His military occupational specialty (MOS) was 19K (M-1 Armor Crewman).  After completing one-station unit training at Fort Knox, KY, he was stationed at Fort Lewis, WA.  He was assigned to the 3rd Battalion, 21st Infantry Regiment, 25th Infantry Division.  His unit deployed to Iraq for 12 months from October 2004 to October 2005.  After his deployment he reclassified into MOS 91B (Light-Wheel Mechanic).  In June 2006, he was assigned to Company B, 407th Base Support Battalion, 2nd Brigade Combat Team, 82nd Airborne Division, located at Fort Bragg, NC.  

3.  In January 2007, he deployed to Iraq for 15 months.  With his prior combat arms experience, he was tasked to train cooks, truck drivers, and mechanics to perform security operations.  This included foot patrols, detaining persons of interest, and training local nationals in military operations.  After about 12 months in Iraq he began having severe chest pain.  He thought he may have incurred a stress fracture to his collarbone while scaling a wall or detaining a person.  He eventually returned to the United States.  The pain continued to increase.  The aid station did x-rays and blood tests and sent him to physical therapy.  

4.  In November 2008 while shaving, he noticed the left side of his neck was extremely swollen.  He called his physician's assistant and immediately went to see him.  After ultrasounds and two biopsies it was determined he had a blood clot in his inner jugular vein and he had Hodgkin's Lymphoma cancer.  On the day before Thanksgiving he began 6 months of chemotherapy.  This was followed by 3 months of radiation treatment.  He also had to inject blood thinners twice a day into his stomach.  The cancer is now in remission, but the secondary malignancy still impacts his daily life.  He has lost most of his lung capacity and is anemic.  These two conditions along with his blood clot causes him extreme mental and physical fatigue.  

5.  He left the Army in June 2011 upon the expiration of his term of service (ETS).  At the time he was on various physical profiles stemming from his cancer for the last 2 years of his military service.  He believes that his unit placed unit readiness above the welfare of its Soldiers.  His unit was to deploy 2 months after his separation and his position could be filled faster if he ETS'd rather than waited for the outcome of a medical board.

6.  The applicant provides approximately 600 pages of medical and service documents, including:

* A DD Form 214
* A DA Form 3349 (Physical Profile) dated 22 July 2008
* A DA Form 3349 dated 28 August 2008
* An Operative Report, dated 10 October 2008
* A DA Form 3349, dated 28 October 2008
* An Operative Report, dated 14 November 2008
* A DA Form 3349, dated 12 February 2009
* A DA Form 3349, dated 4May 2009
* A Radiation Oncology Report, dated 30 June 2009
* A Radiation Oncology Report, dated 25 September 2009
* A Standard Form 600 (Chronological Record of Medical Care) dated              2 August 2010
* A DD Form 2807-1 (Report of Medical History) dated 26 October 2010
* A DD Form 2808 (Report of Medical Examination) dated 26 October 2010
* A Statement from the Department of Veterans Affairs (VA) dated             16 October 2013

CONSIDERATION OF EVIDENCE:

1.  On 28 August 2002, the applicant enlisted in the Regular Army and was trained in MOS 19K.  On 1 March 2008, he was promoted to staff sergeant, pay grade E-6.

2.  A DA Form 3349, dated 22 July 2008, reports that the applicant was given a temporary physical profile due to an injury.  He was restricted from performing push-ups, pull-ups, and airborne operations for 30 days.  On 28 August 2008, this profile was extended until 28 November 2008.

3.  An Operative Report, dated 10 October 2008, states the applicant underwent a cervical mediastinal exploration and thymectomy.  He had an enlarged thymus gland with fibrotic desmoplastic reaction on the anterior half of the left arm of the thymus.  The thymus was removed.

4.  A DA Form 3349, dated 28 October 2008, states the applicant was given another temporary physical profile for 30 days.  This document states that he had a mediastinal mass removed.  Pathology was still pending for exact diagnosis.  He could return to light duty with recommendation to limit his work day to 8 hours due to fatigue and the need for multiple medical appointments.  He was on blood thinning medication.  He was not permitted any physical training except for walking.  He was prohibited from going to the range, ruckmarching, or participation in training exercises.  He was not to lift more than 10 pounds.

5.  An Operative Report, dated 14 November 2008, states the applicant underwent an anterior mediastinal exploration to obtain a biopsy of what appeared to be malignant tissue for diagnosis.

6.  A DA Form 3349, dated 12 February 2009, states the applicant was given a temporary physical profile for 30 days limiting him to a half-day work schedule for 3 days a week.  Physical training was limited to walking.

7.  A DA Form 3349, dated 4 May 2009, extended his physical profile to 4 June 2009 and limited him to 6-hour work days, Monday through Friday.  He was authorized to walk, bike, elliptical, and swim.

8.  A radiation oncology report, dated 30 June 2009, states the applicant had been diagnosed with having Hodgkin's disease.  He was counseled about his condition and treatment with chemotherapy and radiation.

9.  A Standard Form 600, dated 2 August 2010, states the applicant had been treated with chemotherapy and radiation with radiographic regression of his disease.  He recently was able to deploy to Haiti without difficulty.  His spirometry in September 2009 showed moderate restriction.  He reported he was doing well.  His exercise capacity improved after completing chemotherapy but then hit a plateau.  He barely passed his last Army physical fitness test.  He was concerned if he had to go to a new unit whether they would be as understanding has his current unit.
10.  A DD Form 2807-1, dated 26 October 2010, states his Hodgkin's Lymphoma cancer had been in remission for 1 year.

11.  A DD Form 2808, dated 26 October 2010, states the applicant underwent a medical examination for the purpose of separation.  He was found medically qualified for service.

12.  The applicant’s Noncommissioned Officer Evaluation Report (NCOER) for the period 1 February 2010 – 31 January 2011, wherein he was rated as a Senior Mechanic, MOS 91B3O, showed he was given “excellence” or “success” ratings.

13.  The applicant's DD Form 214 shows he was discharged on 7 June 2011 due to completion of required active service.  He was given an honorable characterization of service and a reentry code of 1 indicating he was eligible for reenlistment without any waivers.  He had completed 8 years, 9 months, and 
10 days of creditable active duty service.

14.  The VA letter dated 16 October 2013, states the applicant was granted a service-connected disability with a combined rating of 90 percent.

15.  Army Regulation 40-501 (Standards of Medical Fitness) provides the standards for medical fitness for retention and separation, including retirement.  Soldiers with medical conditions listed in this chapter should be referred for disability processing.

16.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation):

	a.  This regulation provides that the mere presence of an 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 member reasonably may be expected to perform because of his or her office, rank, grade or rating.

	b.  It also provides that when a member is being separated by reason other than physical disability, his or her continued performance of assigned duty commensurate with his or her rank or grade until he or she is scheduled for separation or retirement creates a presumption that he or she is fit.  This presumption can be overcome only by clear and convincing evidence that he or she was unable to perform his or her duties for a period of time 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.
17.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30% and Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30%.

18.  Title 38, U.S. Code, sections 1110 and 1131, permit 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 Army disability rating is to compensate the individual for the loss of a military career.  The VA does not have 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.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his DD Form 214 should be changed to show he was separated from active duty due to physical disability.

2.  The evidence of record clearly shows that the applicant was discharged as a result of completing his required active duty service.  His separation was not due to a physical disability that made him unfit for further duty.  His last NCOER shows he was fully capable of performing his 91B3O duties.

3.  Because the applicant's physical condition was not medically unfitting for retention at the time of his discharge there was no basis for a medical retirement or disability separation from active duty.

4.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated from active duty.

5.  There does not appear to be an error or an injustice in his case.  The applicant's contention that he should have been evaluated by a medical board is not supported by the available medical evidence showing he was qualified for service at the time of his discharge.  He was fully eligible for retention.  

6.  An award of a VA rating does not establish entitlement to medical retirement or disability separation from the Army.  Operating under its own policies and regulations, the VA, which has neither the authority nor the responsibility for determining medical unfitness for military duty, awards ratings because a medical condition is related to service ("service-connected") and affects the individual's civilian employability.  Furthermore, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.

7.  In view of the above, the applicant's request should be denied.

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)                                         AR20130005019



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ABCMR Record of Proceedings (cont)                                         AR20140001100



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