IN THE CASE OF:	  

		BOARD DATE:	  28 May 2015

		DOCKET NUMBER:  AR20140014575 


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 a Medical Evaluation Board (MEB)/Physical Evaluation Board (PEB). 

2.  He states a second military occupational specialty (MOS)/Medical Retention Board (MMRB) recommended consideration of his medical issues by an MEB/PEB due to the cancer treatment and possible residuals.  The Army did not act on the MMRB recommendations.  A copy of the MMRB was not furnished to him nor placed in his medical records or official military personnel file.  

3.  He provides:

* memorandum, subject:  Record of MMRB [Applicant], dated 2 February 1999
* Orders 074-0004, dated 15 March 2002
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* extensive documents from the Department of Veterans Affairs (VA)
* dental treatment records
* extensive medical records dated prior to and after the MMRB

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.  On 1 September 1982, the applicant enlisted in the Regular Army (RA).  He was trained in and awarded primary military occupational specialty (PMOS) 95B (Military Police). 

3.  On 11 December 1998, the Fort Carson, CO, MMRB convened and recommended that the applicant be retained in PMOS 95B.  The applicant appeared before the MMRB and the board carefully considered the evidence and found:

* the applicant was currently performing duties in his PMOS
* his profile stated he must be near a community or tertiary level hospital with hematology/oncology services readily available
* he was currently fully functional and had an indolent, but progressive disease; he must keep himself hydrated at all times
* he suffered from multiple myeloma (bone marrow cancer) and it precluded him from performing his PMOS in a worldwide field environment
* his commander recommended that he be retained in his current PMOS

4.  On an unknown date, the Commanding General (CG) approved the MMRB recommendation.

5.  On 2 February 1999, the Chief, Enlisted Management Branch, stated on 
11 December 1998, the Fort Carson, MMRB was convened to evaluate the applicant's abilities to perform the physical requirements of PMOS 95B.  Based on a thorough review of the most recent physical profile and all other pertinent records and reports, the MMRB recommended that the applicant be retained in his current PMOS of 95B and the CG approved the MMRB recommendation.  He further stated that the board proceeding served as a final determination of the applicant's deployability in PMOS 95B.  The decision would not be superseded by a subsequent board unless appropriate medical authorities determined the applicant's medical condition had deteriorated or upon direction by the Department of the Army.

6.  On 4 February 2002, the applicant underwent a physical examination for the purpose of retirement.  
7.  Three Noncommissioned Officer Evaluation Reports (NCOERs) for the periods April 1999 to March 2000, April 2000 to March 2001, and April 2001 to March 2002 show the applicant was assigned to the 148th Military Police Detachment, Fort Carson, CO, as a staff sergeant (SSG)/E-6, MOS 95B, as the Physical Security Inspector.  These reports show the raters consistently assessed the applicant's overall potential for promotion and/or positions of greater responsibility as "Among the Best" with supporting bullet comments.  The senior raters assessed his overall performance and potential as 
1-Successful/Superior with outstanding comments.  Specifically, his NCOER for the period April 2001 to March 2002 shows the senior rater's comments were: "select for Advanced Noncommissioned Officer Course (ANCOC) and promote immediately; has consistently demonstrated ability to perform at higher levels of responsibility; articulated legitimate concerns to always ensure the right solution was achieved to maintain a high level of security; and worked tirelessly during elevated threat conditions to accomplish all missions assigned."  

8.  A medical record, dated 10 April 2002, stated "Presented to MMRB, needs time to respond to chemo.  No change MEB/PEB as per oncology after 
6 months."

9.  The applicant provided numerous lab and medical reports dated after his MMRB.  Documents dated as early as May 1999 through April 2002 show he was being seen at the Cancer Center, Colorado Springs, CO for an indolent form of myeloma.  He was being treated with chemotherapy, radiation therapy and stem cell transplant for the management of his myeloma.  On 11 April 2002, the oncologist wrote that the applicant was recovering from a tandem autologouos peripheral blood stem cell transplant.  The treatment was essentially finished the last week in February 2002.  While he had responded extremely well and he was considered in complete remission at this point, he required monitoring for the rest of his life.  He said it was impossible to predict the course the disease would take, but he felt that after six months the applicant would remain in complete remission.  For that reason, he recommended the applicant be granted his retirement on 31 August 2002. 

10.  The applicant was awarded the Meritorious Service Medal for exceptionally meritorious service from 31 July 1992 to 31 July 2002.

11.  The applicant's record is void of MEB or PEB proceedings.  His record is also void of a second MMRB or evidence to show that one was required and/or requested.

12.  On 31 August 2002, the applicant was honorably retired and credited with completing 20 years of active duty service.  
13.  Documents from the VA show the applicant received a disability rating of 
100 percent (%) for multiple myeloma.  Additionally, he received a 20% disability rating for degenerative disc disease, lumbosacral spine and a 10% disability rating for the following:

* retropatellar pain syndrome, right knee
* bursitis, left shoulder
* residual tender scar, left pectoral
* residual tender scar, right pectoral
* bursitis, right shoulder
* degenerative disc disease, cervical spine
* hypertension
* tinnitus

14.  Army Regulation 40-400 (Patient Administration) states the MEB assists the medical treatment facility commander in determining the medical fitness, mental competence, and disposition of patients.  Paragraph 7-1 states physicians who identify Soldiers with medical conditions not meeting fitness standards for retention will initiate a DA Form 3349 (Physical Profile) referring them to the Physical Disability Evaluation System (PDES).  Soldiers issued a permanent profile with a numerical designator of 3 or 4 in one of the physical profile factors who meet retention standards are referred to the MMRB.  If the Soldier does not meet retention standards, an MEB is mandatory and will be initiated by the physical evaluation board liaison officer.  Only those patients that present problematical or controversial aspects and those in which MEB action is required by regulation should be referred to the MEB before disposition.

15.  Army Regulation 600-60 (Physical Performance Evaluation System) establishes operating procedures for the Physical Performance Evaluation System (PPES).  

	a.  Paragraph 4-14 states the president of the board, after deliberation, will verbally inform the Soldier of the findings and recommendations.  The board will advise the Soldier that the board's action will not become final until it has been reviewed and then approved by the MMRB Convening Authority (MMRBCA) or his or her designee.  The president will inform the Soldier that a written rebuttal to any of the findings or recommendations may be submitted to the MMRBCA.  For active duty Soldiers, the rebuttal will be in writing and be submitted to the recorder within 2 working days after the board adjourns.  A summary of the board proceedings will be provided to the Soldier upon request. 

   b.  Paragraph 4-17 states that the recommendation to retain a Soldier in their current PMOS is appropriate when the Soldier's medical condition does not preclude satisfactory performance of PMOS or specialty code physical requirements in a worldwide field environment and when the Soldier's profile does not preclude those common tasks. 

16.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states that disability compensation is not an entitlement acquired by reason of a service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.

17.  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 in the Army's rating.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The VA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability.  Furthermore, unlike the U.S. 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.  The U.S. Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career, while the VA may rate any service-connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant argues, in effect, that the Army did not act on a second MMRB recommendation.  However, he provides no evidence to include the date, place, or time that the second MMRB was conducted and no evidence could be found in his records to substantiate his claim.

2.  The evidence of record shows on 11 December 1998 an MMRB was convened and the applicant was given the opportunity to appear before the board.  The board determined he suffered from multiple myeloma and it precluded him from performing his PMOS in a worldwide field environment.  However, the board found he was currently performing duties in his PMOS; he was fully functional; and had indolent, but progressive, disease.  The board recommended he be retained in his PMOS and the CG approved the board's recommendation.

3.  There is no evidence and the applicant did not provide any to show he was subsequently recommended for processing through the PDES.  In fact his NCOERs for his last three rating periods show he was consistently rated as "Among the Best" by his raters and 1-Successful/Superior with outstanding comments by his senior raters.  Additionally, he was awarded the Meritorious Service Medal prior to his retirement.  The fact that he continued to serve in the military for over 3 years after his MMRB was conducted and he attained 20 years of service, is an indication that he was physically fit to perform his duties at the time of separation.

4.  A medical record document dated in April 2002 indicated no change in his physical status. Further, on 11 April 2002, the oncologist wrote the applicant was recovering from a blood stem cell transplant and he was considered in complete remission at that point.  He said it was impossible to predict the course the disease would take, but he felt that after six months, the applicant would remain in complete remission.  He recommended the applicant be granted his retirement on 31 August 2002. 

5.  The applicant submitted numerous VA documents that show he was awarded a 100% disability rating for multiple myeloma.  However, the VA is not required by law to determine medical unfitness for further military service.  The VA awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, the applicant's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge, or retirement, may be sufficient to qualify him for VA benefits based on an evaluation by that agency.

6.  An award of a VA rating does not establish entitlement to medical retirement or separation.  The VA is not required to find unfitness for duty.  Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service connected.  Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.

7.  In view of the evidence in this case, there is no basis for granting his 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)                                         AR20140014575



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140014575



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1