IN THE CASE OF:	

	BOARD DATE:	  25 August 2015

	DOCKET NUMBER:  AR20140018522

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, to change his record to show that he had 20 qualifying years for a regular retirement vice non-regular Reserve retirement at the time he was medically retired on 11 December 2013 in order to receive concurrent receipt of pay.  

2.  The applicant states, in effect:

   a.  In July 2010 he had a scan that showed irregularities in his abdomen that should have been followed up on to check for cancer.  A medical malpractice claim against the Army is not available to him for failure to catch the early signs of his cancer while he was in the Warrior Transition Unit (WTU) in 2010.

   b.  He was released from active duty on 23 September 2011 and transferred the Individual Ready Reserve (IRR).  However, 3 weeks later he was diagnosed with stage 4 non-Hodgkins lymphoma.

   c.  In January 2012, he started his chemotherapy treatments which ended in May 2012.

   d.  In September 2012, he was placed in a medical holding company.  Once there, he requested on three separate occasions to return to active duty to complete the next two and half years of Rituxan treatments for his cancer; however, the requests were all denied.

   e.  If he had been allowed to stay on active duty to receive the treatments, he would have had over 19 and 1/2 years of active duty time.  He would have applied for sanctuary to get a 20 year active duty retirement.
   
   f.  As of today, his cancer is in remission, but the nodes in his neck are growing again and he has gone from having blood work every 3 months to every month.
   
   g.  This type of cancer is not curable and will continue to come back until he passes away.  He wants to be able to provide for his family and is willing to come out of retirement and be placed in sanctuary to complete his 20 years of active duty time.
   
   h.  He was medically retired on 11 December 2013.

   i.  The applicant wants to ensure that his family is taken care of in the case of his death.

3.  The applicant provides:

* An Army National Guard Retirement Points History Statement
* Headquarters, New Jersey Army National Guard (NJARNG) Notification of Eligibility (NOE) Letter
* Orders to WTU
* A DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Retirement order
* Regional Cancer Care Associates (Oncologist) Statement 
* July 2010 Magnetic Resonance Imaging (MRI)
* Email
* A memorandum from the NJARNG denying his request
* A National Guard Bureau (NGB) Report of Separation and Record of Service
* Army Review Board Agency letters

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he had prior Regular Navy and Regular Army active duty service.  He enlisted in the NJARNG on 24 January 1996. 

2.  On 11 February 2008, the applicant received his NOE after having 20 qualifying years of non-regular Reserve service for retired pay at age 60.

3.  The applicant had ongoing issues with his back and shoulder which required treatment.

4.  On 31 August 2009, the applicant received orders from Headquarters, U.S. Army Medical Command, to be retained on active duty in a medical retention processing (MRP) status to complete his medical care and treatment at the Warriors in Transition (WT) Complex Battalion Headquarters in Fort Dix, NJ. 

5.  In July 2010, while on active duty, he received an MRI scan on his back. The medical report stated, "there is a mild retroperitoneal adenopathy which is new since the prior examination, this is of uncertain etiology, but a dedicated [x-ray computed tomography (CT)] scan of the abdomen and pelvis is recommended to evaluate the full extent of this findings."  However, a CT was never done since the applicant stated he was never told about it.  

6.  The applicant continued on active duty orders with the WTU trying to get his back and right shoulder healed well enough to be released from the WTU and return to civilian life.  

7.  After 2 years of treatment and therapy, the applicant believed there was nothing more the WTU could do for his health.  So, in September 2011, he asked to be released so that his slot could go to someone else, even though he was told he could stay on and continue trying to go to rehabilitation for his back.  

8.  Two weeks after leaving active duty, in October 2011 his back went out again. His civilian health care provider gave him steroid injections and another MRI scan to see if anything had changed since July 2010.  The new scan revealed "the bone marrow signal intensity is diffusedly abnormal, demonstrating hyper-intensity on T2 [vertebra] weighted imaging and relative hypo intensity on T1 weighted imaging.  Most notably, this represents a change since the previous study of July 26, 2010.  Also noted is a speckled appearance to the bone marrow.  While the anemia metastatic disease and multiple myeloma possibilities and are particular concern, clinical correlation is necessary…"

9.  In November 2011, he requested to transfer to the IRR since he was not in the best of health and believed that the IRR was the best place for him to be until he got better and ready to continue service.  However, he withdrew his request and requested to extend his enlistment for one year.  In the meantime, he found a lump in his neck, which was followed by a biopsy.  It was discovered on 
31 December 2011, that the biopsy revealed he had non-Hodgkins lymphoma (cancer).  However, his request to extend his enlistment was never processed and he was told his discharge was processed in September 2011.
10.  However, the applicant and his command were trying to find a solution to his extension/discharge issue.  In the meantime, he was continuing to seek medical treatment for his cancer.  The applicant states he wasn’t told until January 2012 when he started to receive chemotherapy of any indication of the possibility of cancer or that an evaluation was recommended back in July 2010.

11.  He was immediately sent to an oncologist and blood tests were ordered.  The doctor also ordered another scan on his abdomen and pelvis.  This scan revealed an increased size in his lymph nodes and some of his organs.

12.  Finally, in June 2012, his unit told him he was being transferred to a medical holding company.  However, since his initial request to withdraw to the IRR was never submitted and he was discharged, it wasn't until September 2012, after many requests, that he was finally transferred to the medical holding company where he remained.  

13.  On 26 September 2013, the applicant received an informal Physical Evaluation Board (PEB) where it was determined he was unfit for duty due to his non-Hodgkins lymphoma, degenerative disc disease of the lumbar spine, and post right shoulder rotator cuff tear.  He was placed on the medical retired list effective 11 December 2013 with a disability rating of 100 percent for his cancer from the NJARNG.  Furthermore, the PEB determined that, relating to his non-Hodgkins lymphoma, the "onset occurred in November 2010 when there was an incidental finding of retroperitoneal adenopathy on an MRI."

14.  The applicant states that back in July 2010 he had a scan that showed irregularities in his abdomen that should have been followed up on to check for cancer.  A medical malpractice claim against the Army is not available to him for failure to catch the early signs of his cancer while he was in the WTU in 2010.

15.  On 27 March 2015, the NGB provided an advisory opinion recommending partial approval of the applicant's request.  The advisory official stated:

   a.  The Soldier was diagnosed with cancer in January 2012 after a preceding MRI scan of his back in July 2010 as a member of the Massachusetts WTU.
   
   b.  The Soldier was transferred the Medical Hold Company in September 2012 where he remained until being medically retired on 11 December 2013.
   
   c.  His period of service from 20 June 2008 to 23 September 2011 would entitle him to reduce his retired pay age by 36 months (3 years).  This would allow him to draw retired pay for his non-regular Reserve retirement at age 57.  This benefit is for the early payment of retired pay only and TRICARE benefits would not begin for him and his family until his 60th birthday.
   
   d.  Since he was married at the time, and did not make an election for the Reserve Component Survivor Benefit Plan (RCSBP) when he was issued his 20-year NOE for non-regular Retired pay, his spouse was automatically enrolled under full and immediate coverage.  This means that if the Soldier should pass away prior to his 60th birthday, his spouse would be entitled to 55% of what his retired pay would have been.  This pay would begin immediately upon the Soldier's death.

16.  On 12 April 2015, the applicant responded to the advisory opinion, he stated:

   a.  He was released from active duty on 23 September 2011.  Three weeks later during a back MRI, the doctor's found that his spleen was enlarged; therefore, he had a blood work-up to determine if he had cancer.  Finally, a biopsy of lymph modes in his neck determined that he had non-Hodgkins lymphoma.  A week later they conducted a bone marrow check to confirm stage 4 cancer and a week later he started chemotherapy.
   
   b.  During many consultations with his doctor, he asked if there was any way that he could have found the cancer earlier so it wouldn't have reached stage 4.  The doctor asked him if he had any scans prior to 2011 which showed the enlarged spleen.  The applicant showed him a scan in July 2010 and that the doctor at the time said he should have it checked out, but that the doctor never relayed that information to him verbally.

   c.  If he would have stayed on active duty from September 2011 and gone through all of his cancer treatments, which would have ended in May 2014, he would have had over 19 1/2 years of active duty service.  He would have applied for sanctuary to get a 20 year active duty retirement, which would have also qualified him for concurrent receipt of disability and retired pay.
   
   d.  As of today, he is in remission but unfortunately, he feels the nodes in his neck are growing again and he has gone from having blood work every 3 months to every month.  This type of cancer is not curable and will continue to come back until it kills him.  All he wants to do is provide for his family and try to enjoy his time with them.
   
   e.  He is willing to come out of retirement and be placed in sanctuary to complete his twenty years of active duty time. 

17.  Title 10, U.S. Code (USC), section 12686a, states that under regulations to be prescribed by the Secretary concerned, which shall be as uniform as practicable, a member of a Reserve Component who is on active duty (other than for training) and is within two years of becoming eligible for retired pay or retainer pay under a purely military retirement system (other than the retirement system under chapter 1223 of this title), may not be involuntarily released from that duty before he becomes eligible for that pay, unless the release is approved by the Secretary

18.  The U.S. Army Human Resources Command (USAHRC) provides a fact sheet concerning the “sanctuary retirement."  Commonly referred to as "18 year lock in," "Sanctuary" is the term that is used for Reserve Component (RC) Soldiers who are mobilized and have achieved at least 18 years, but less than 20 years, of active Federal service (AFS).  RC Soldiers are required to apply for sanctuary and can be retained by law until they reach 20 years AFS when they become eligible for retirement pay.  

19.  Section 1176(b) of Title 10, U. S.C. states that, if on the date prescribed for the involuntary separation (other than for physical disability or for cause) or whose term of enlistment expires and who is denied reenlistment (other than for physical disability or for cause) from an active status of a reserve enlisted member or officer he is entitled to be credited with at least 18, but less than 20, years of service, he may not be discharged, denied reenlistment or transferred from an active status without his consent before the earlier of the date on which he is entitled to be credited with 20 years of qualifying service or the second anniversary of the date on which he would otherwise be discharged or transferred from an active status.

20.  Department of Defense Instruction (DODI) 1332.38, (Physical Disability Evaluations states: 

* E3.P3.2. General Criteria for Making Unfitness Determinations

o E3.P3.2.1. A Service member shall be considered unfit when the
Evidence establishes that the member, due to physical disability, is unable to reasonably perform the duties of his or her office, grade, rank, or rating (hereafter called duties) to include duties during a remaining period of Reserve obligation.

o E3.P3.2.2. In making a determination of a member’s ability to so
Perform his/her duties, the following criteria may be included in the assessment:

o E3.P3.2.2.1. The medical condition represents a decided medical
risk to the health of the member or to the welfare of other members were the member to continue on active duty or in an Active Reserve status.

o E3.P3.2.2.2. The medical condition imposes unreasonable 
requirements on the military to maintain or protect the member. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contends that his record should be corrected to show he had 18 years of active duty service, reached sanctuary, and should have been allowed to stay on active duty service until his completion of 20 years of active duty service.  This would enable him to received immediate concurrent receipt of disability and retired pay so that he may take care of his family in the case of his death due to cancer.  If his request is denied, he offers a second solution: to be able to go back on active duty to complete his 20 years of active duty service.  His contentions were carefully considered.

2.  The applicant received his NOE in 2008.  He was auto-enrolled in the RCSBP category of coverage at full base amount for spouse and child.  This allows for his family to receive 55 percent of his base pay in the case of his death.  

3.  On 11 December 2013, the applicant was medically retired due to his diagnosis of cancer at 100 percent.  He had 18 years, 3 months, and 24 days of NJARNG service.

4.  He had only 16 years and 7 days of total active duty service, which includes active duty service while a member of the U.S. Navy and NJARNG.

5.  In order to qualify for an active duty retirement, the applicant needed to have 20 qualifying active duty years in service.  

6.  In order to qualify for sanctuary and be allowed to complete 2 additional years of active duty service to receive an active duty retirement, the applicant needed 18 years of active service.  He only had 16 years and 7 days.  Based on governing law, even if the applicant had 18 years of active duty service, he had to apply for sanctuary.  Even then, the Secretary concerned had the authority to deny or approve his request based on individual circumstances.  

7.  It is possible to believe that if his cancer diagnosis had been detected in 2010 and not in 2012, he would have stayed on active duty and reached sanctuary vice his requesting to transfer to the IRR with only 16 years of active duty service.  However, he still would have been required to apply for sanctuary and receive a final determination from the Secretary concerned and serve another 2 years to reach 20 years of active duty service.  

8.  It is unknown whether his cancer could have or should have been detected, in spite of the PEB's findings that "[non-Hodgkins lymphoma] onset occurred in November 2010 when there was an incidental finding of retroperitoneal adenopathy on an MRI.  The required treatment for non-Hodgkins lymphoma, it imposes unreasonable requirements on the military to maintain and/or protect the Soldier."  It is likely, however, that even if the applicant stayed on active duty beyond 23 September 2011, that the Secretary concerned most likely would have denied his request to complete his 20 years of active duty service based on the PEB's findings that it "imposes unreasonable requirements on the military to maintain and/or protect the Soldier." 

9.  Based on the facts, there is no basis for granting 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)                                         AR20140018522



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