PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           30 August 2001                   
	DOCKET NUMBER:   AR2001060043

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

	Mr. Carl W. S. Chun		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Christopher J. Prosser		Member	
	Ms. Linda D. Simmons		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

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

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that his retirement orders be revoked and he be restored to active duty to pursue Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB) processing.

3.  The applicant states that he noticed a tongue lesion on 6 April 2001.  On      30 April 2001, he was hospitalized for a biopsy, which proved to be cancerous.  One-third of his tongue was removed.  He retired on 1 May 2001.  As of June 2001, he was scheduled for approximately 6 weeks of radiation treatments to care for a small area behind his left cheek that is of concern.

4.  The applicant’s military records show that he was appointed a warrant officer in the U. S. Army Reserve on 19 January 1966.  It appears he had been on active duty since 15 November 1982 in an active guard/reserve (AGR) status.

5.  Retirement orders were issued on 19 December 2000 placing the applicant  on the retired list on 1 May 2001.

6.  On 7 April 2001, the applicant completed a retirement physical and was found to have a lesion on his tongue.  He was scheduled for a biopsy.  Apparently, this information was not provided to his unit.

7.  The applicant apparently signed out on terminal leave on 23 April 2001.

8.  The applicant was hospitalized at a civilian hospital in Houston, TX on 30 April 2001 and the biopsy was performed.  The specimen was immediately examined and, when found to be cancerous, a portion of his tongue was removed.  

9.  The 75th Division’s Chief of Staff informed the Office of the Chief, Army Reserve that the command had been notified on 1 May 2001 that the applicant was admitted to the hospital the previous day.  The command immediately began inquiring about the procedures to take to retain the applicant on active duty.

10.  On an unknown date, the applicant signed an affidavit requesting retention on active duty beyond his scheduled separation date for the purpose of completing hospital care and/or physical disability evaluation.

11.  Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability.  The regulation defines “physically unfit” as unfitness due to physical disability.  In pertinent part, it states that a soldier whose normal scheduled date of nondisability retirement or separation occurs during the course of hospitalization or disability evaluation may, with his or her consent, be retained in the service until he or she has attained maximum hospital benefits and completion of disability evaluation if otherwise eligible for referral into the disability system.
12.  Army Regulation 40-501 governs medical fitness standards for enlistment, retention, and separation.  Paragraph 3-42 states that a cause for referral to an MEB is when a malignant neoplasm is discovered on evaluation for administrative separation or retirement and the observation period subsequent to treatment is deemed inadequate in accordance with accepted medical principles.

CONCLUSIONS:

1.  The applicant’s condition was suspected less than one month prior to his retirement date.  It appears that due to the timing of the discovery of his cancer that his command was not notified until the day of his retirement that he had been hospitalized and had undergone surgery for removal of a cancerous growth.  By then, it was too late to revoke his retirement and retain him on active duty to obtain the maximum hospital benefits and process him through an MEB.

2.  It appears the applicant may still be undergoing treatment.  It would be appropriate to revoke his retirement orders, restore him to active duty, and begin the MEB process.

3.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by voiding the applicant’s 1 May 2001 retirement and restoring him to active duty with all due pay and allowances.

2.  That the applicant be evaluated by a Medical Evaluation Board as soon as he is restored to active duty.  

BOARD VOTE:  

__rvo___  __cjp___  __lds___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		Raymond V. O’Connor, Jr.
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2001060043	
SUFFIX		
RECON		
DATE BOARDED	20010830	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	136.06	
2.		
3.		
4.		
5.		
6.