MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:             23 Mar 2000                 
	DOCKET NUMBER:    AR1999028758

	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. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Ms. Shirley L. Powell		Chairperson	
	Mr. Roger W. Able		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 his prostate cancer be classified as being caused by an instrumentality of war.

APPLICANT STATES:  That since his cancer was caused by his exposure to Agent Orange, his retirement for years of service should be corrected to a medical retirement and his cancer should be classified as an instrumentality of war.

In support of his application he submits a rating decision by the VA in which he was awarded a 100 percent disability rating for prostate cancer effective 26 March 1998, a rating he was given as a result of the Agent Orange Act of 1991.  In that rating the VA states that exposure to herbicides in Vietnam is deemed to have been caused by an instrumentality of war.  He also submits a letter from his employer, the U.S. Post Office, which states that for him to apply his 20 years active service towards civil service retirement his disabling condition, his cancer, has to be classified as being an instrumentality of war by the Army

EVIDENCE OF RECORD:  The applicant's military records show:

He enlisted in the USAR for assignment to a troop program unit on 10 January 1958.  On 15 July 1958 he enlisted in the Regular Army where he served continuously, including one tour in Vietnam in 1966, and was promoted to pay grade E-7.  The applicant concluded his career as a first sergeant, receiving maximum Senior Enlisted Evaluation Reports (SEER), retiring for years of service on 31 July 1978.

Army Regulation 635-40 provides 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.  For example, a noncommissioned officer who receives above average evaluation reports and passes Army Physical Fitness Tests (which have been modified to comply with the individual’s physical profile limitations) after the individual was diagnosed as having the medical disqualification would probably be found to be fit for duty.  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, U.S. Code, chapter 61, Retirement or Separation for Physical Disability, provides for the medical retirement and for the discharge for physical unfitness, with severance pay, of soldiers who incur a physical disability in the line of duty while serving on active or inactive duty.

Certain advantages accrue to soldiers who are retired for physical disability and later return to work for the Federal Government when it is determined that the disability for which retired was incurred under specific circumstances. These advantages concern preference eligible status within the Civil Service system (section 3501, title 5, United States Code (USC 3501)) and exemption of retired veterans to the provisions of the Dual Compensation Act (section 5532, title 5, United States Code (5 USC 5532)). As part of its findings, the PEB will make an entry in block 10A of DA Form 199 to reflect its determination as to whether the disability was incurred within the specified parameters discussed below. 

(1) The disability resulted from injury or disease received in LD as a direct result of armed conflict and which itself renders the soldier unfit. A disability may be considered a direct result of armed conflict if-- 

(a) The disability was incurred while the soldier was engaged in armed conflict, or in an operation or incident involving armed conflict or the likelihood of armed conflict; while the soldier was interned as a prisoner of war or detained against his will in the custody of a hostile or belligerent force; or while the soldier was escaping or attempting to escape from such prisoner of war or detained status. 

(b) A direct causal relationship exists between the armed conflict or the incident or operation, and the disability. 

(2) The disability is unfitting, was caused by an instrumentality of war, and was incurred in LD during a period of war as defined by law. 

The Veterans Administration acknowledges certain diseases as being related to the use of herbicides (such as Agent Orange) in Vietnam.  Although any of the acknowledged diseases may have had their inception in Vietnam, an individual can only be referred for disability processing if the signs and symptoms of a disease are so severe, at the time of the individual’s military service, that the individual is rendered unable to perform the duties of his office, rank, grade or rating as required by law (title 61, United States Code, chapter 61).  
DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, it is concluded:

1.  The fact that the applicant received maximum SEER’s all the way until his retirement as a first sergeant is clear evidence that he was physically fit at that time.  As such, there is no regulatory or statutory basis to change his retirement for years of service to a medical retirement.

2.  Without a medical retirement from the Army, there is no method for the Army to convey that the applicant’s cancer was or was not an instrumentality of war.  The Board must presume that this limitation is based on the intent of Congress to give veterans who had their military career cut short by their physical unfitness certain advantages in civil service.  Since the applicant completed his military career, those advantages are not conveyed to him.

3.  The Board notes that the applicant is receiving a full military retirement for length of service, he is receiving 100 percent disability compensation from the VA, he is receiving free medical care at the VA, and he will probably be eligible for a medical retirement from his civil service job.  

4.  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

__slp____  __rwa___  __jea ___  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999028758	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000323	
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.	108.08	
2.		
3.		
4.		
5.		
6.