MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           12 May 1999                 
	DOCKET NUMBER:   AR1998003565

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	Mr. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Mr. George D. Paxson		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. James E. Anderholm		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That the records of her father, now deceased, be corrected to show that he, a former service member (FSM), was commissioned in the Regular Army (RA), was promoted to colonel, and was retired in the rank of colonel.

APPLICANT STATES:  That he was unjustly denied an RA commission due to cancer (myeloma) which was misdiagnosed as kidney stones, and due to defective vision and sinusitis which did not affect his performance.

In support of her application she submits her father’s death certificate showing that he died on 17 February 1973 as a result of multiple myeloma and pneumonia at 64 years old; she submits a medical opinion from a VA physician who opines that the symptoms exhibited by the FSM while he was on active duty are consistent with myeloma, a diagnosed which was confirmed in 1965; and she submits numerous professional writings on myeloma. 

EVIDENCE OF RECORD:  The FSM’s military records show:

He enlisted in the Regular Army on 14 March 1928 served through reenlistments and was promoted to staff sergeant.  He was commissioned as a first lieutenant on 10 February 1941.

He served during WW II, being awarded the American Defense Medal, the American Theater Medal, the European, African, Middle-East Campaign Medal, the WW II Victory Medal, and the Army of Occupation Medal (Japan and Germany) with four overseas bars.  He was promoted to the rank of major, Army of the United States (AUS) and to the rank of lieutenant colonel in the Organized Reserve Corps (ORC).  

In 1946 the FSM applied for a commission in the RA.  On 7 May 1946 he was notified that his application was denied due to his not being medically qualified for commission.  His medical disqualification’s consisted of defective vision, recurrent sinusitis, and a history of renal stones.  In 1948 the FSM applied for appointment as an RA or Regular Air Force warrant officer.  That application was also denied.

He was honorably released from active duty on 22 March 1950 and entered on active duty the following day as an RA master sergeant.

On 17 April 1953 the FSM was the subject of a physical examination for the purpose of establishing his medical qualification for reenlistment.  The findings of that examination were that the FSM had sinusitis which was not severe or disabling; he had renal lithiasis from which he had passed a stone after a one week hospitalization at Fort Jay in 1933 but had no trouble since that time, and he had a visual defect of his right eye which was correctable.  The FSM was determined to be medically qualified for reenlistment.

He served continuously on active duty in his enlisted status and was released from active duty on 31 March 1958 due to his completion of 30 years of active service in the rank of master sergeant.  He was placed on the retired list the following day in the highest grade he successfully held, the rank of major.

Army Regulation 40-100, paragraph 1b(2), and Army Regulation 40-105, then in effect, required an applicant for RA commission to meet procurement medical fitness standards.

Army Regulation 600-450, then in effect, in conjunction with regulations governing medical treatment of soldiers, provided that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board.  Those members who do not meet medical retention standards will be referred to a physical evaluation board (PEB) for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.  The fact that the individual has a medically disqualifying condition does not mandate the person’s separation from the service.  Fitness for duty, within the perimeters of the individual’s grade and military specialty, is the determining factor in regards to separation.  If the PEB determines that an individual is physically unfit, it recommends the percentage of disability to be awarded which, in turn, determines whether an individual will be discharged with severance pay or retired. .  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.    In this regard, the Army rates only conditions determined to be physically unfitting, thus compensating the individual for loss of a career.

Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while performing active or inactive (weekend drill) duty.

Records obtained from the VA show that the FSM’s claim for service connection for his myeloma was denied while he was alive.  That was based on the lack of indication that he was exposed to ionizing radiation from the atomic bombing of Japan or any other source.  However, after the FSM’s death, his widow successfully applied for Dependency Indemnity Compensation (DIC) based on the same physician’s statement her daughter provided this Board.

In the processing of this case an advisory opinion (COPY ATTACHED) was obtained from the Army Review Boards Agency (ARBA) Medical Advisor.  The ARBA Medical Advisor stated that the FSM was denied RA appointment due to medical conditions which were medically disqualifying for RA appointment, but not for retention.

The applicant was furnished a copy of this advisory opinion and responded with a letter of disagreement.  In that letter she states that her father’s blurred vision did not hinder him in any way, that he even qualified as an expert marksman, and adds that the blurred vision was a symptom of his myeloma; that her father never missed a day of work due to his sinusitis; and that even mentioning that her father had a history of kidney stones is “without doubt absurd and most insulting.  MY DAD NEVER HAD KIDNEY(RENAL) STONES.  This was the FIRST manifestation of the cancer.  Obviously, you either did not have the data from the VA or you did not have knowledge of the symptoms of multiple myeloma.”  She then states “I do believe that someone in the Army and in the government caused that cancer.  The government of the United States is very much responsible for my Dad’s death.”

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion, it is concluded:

1.  The FSM did not meet the procurement medical fitness standards when he applied for an RA commission.  As such, he was properly not given an RA commission.  

2.  The applicant’s contention that her father’s medical disqualification’s were either service connected or did not interfere with his performance of duty is not relevant in this instance.  Even if his medical disqualification’s were a result of wounds he sustained in combat for which he was given a decoration for valor, those conditions would have still been disqualifying for RA commission.

3.  The applicant’s contention that her father’s cancer existed at the time he was denied commission is also not relevant.  He was medically disqualified for two other conditions which would have precluded his commission in the RA at that time.  However, even if he did have myeloma and it had been properly diagnosed, it certainly would not have resulted in his being given an RA commission.

4.  It is apparent that the applicant believes that the Army caused her father’s cancer and, therefore, his death.  There is no evidence, indication or even argument that the FSM was in a location which would have exposed him to ionizing radiation from the atomic bombing of Japan or any other source.  Absent such evidence, there is absolutely no reason to believe that the applicant’s father would not have contracted myeloma if he had never been in the Army.

5.  The Board believes that this issue needs further discussion.  The FSM was not accepted for RA commission and reverted to his enlisted status, the same as countless other officers.  The FSM then completed a full 30 year military career, which attests to his fitness for duty (which would make him ineligible for a medical retirement), and was then placed on the retired list as a major.  He was diagnosed as having myeloma in 1965, which was 7 years after his retirement and 19 years after he was denied an RA commission notwithstanding the award of DIC by the VA.  There is no evidence that the FSM’s military service had any bearing on his contracting myeloma. 

6.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

_GDP___  _AAO ___  _JEA____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1998003565	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990512	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.