MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            25 July 2000                 
	DOCKET NUMBER:    AR1999030987

	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. Carl W. S. Chun		Director	
	Mr. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Mr. Ted S. Kanamine		Chairperson	
	Mr. Stanley Kelley		Member	
	Mr. John H. Kern		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:  In effect, that the finding of his Physical Evaluation Board (PEB) that he was physically fit for duty be corrected to a finding that he was unfit, that his unfitting condition was permanent, and that he be given disability severance pay. 

APPLICANT STATES:  That the finding of fitness by his PEB was part of a conspiracy on the part of the Army.  He was not given a full physical examination prior to his PEB, the PEB hearing was conducted at a pace which precluded fair consideration of all aspects of his condition, he was given ineffectual counsel, he was lied to when he was told that a final decision wouldn’t be made until he was notified, and he was not advised of his right to appeal the PEB’s decision.  He continues that when he was discharged from active duty and placed on the Temporary Disability Retired List (TDRL) he was suffering from not only cancer (Hodgkin’s Lymphoma), but also from depression, insomnia and frequent headaches.  The applicant also questions the PEB’s finding that he was fit for duty since a recruiter told him that he would not be eligible to enlist due to his cancer, and the fact that if he could enlist, he would reach his retention control point (RCP) within a year.

EVIDENCE OF RECORD:  The applicant's military records could not be located.  The following information was derived from documents provided by the applicant’s wife.

He enlisted in the Regular Army with no prior service on 12 August 1987.  He was awarded the military occupational specialty of cargo specialist and was promoted to pay grade E-4.  On 7 July 1994 the applicant was discharged from the Regular Army and placed on the TDRL, rated 100 percent disabled (neither the applicant’s original medical evaluation board (MEB) or PEB were provided by the applicant’s wife).

On 5 January 1996 the applicant was considered by another PEB while he was assigned to the TDRL.  The proceedings for that PEB show that the applicant had been discharged due to Hodgkin’s disease, Stage IVB.  The TDRL PEB determined that the applicant’s Hodgkin’s disease was in remission but that his condition was still too unstable to rate permanently.  The PEB recommended that the applicant remain assigned to the TDRL.

On 8 May 1997 a third PEB convened and determined that the applicant’s condition had improved to the point that there was no functional impairment which would preclude him from satisfactory performance of duty.  Based on that finding the PEB found the applicant fit for duty which resulted in his discharge from the TDRL on 24 June 1997.

On 5 February 2000 the applicant died of cardiac arrest, with a secondary cause of death listed as auto-immune hemolytic anemia.
Army Regulation 635-40, the regulation which governs PEB’s, provides that members who do not meet medical retention standards will be referred to a 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 parameters 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.  Chapter 7 of this regulation provides the policy and procedures for individuals assigned to the TDRL.  Paragraph 7-11 states, in effect, that disabilities incurred while an individual is assigned to the TDRL are not grounds for medical retirement or discharge with severance pay.  This paragraph also states that when an enlisted soldier is determined fit for duty “subject to their consent, will be reenlisted in their regular component in the grade held on the day before the date [they were] place[d] on the TDRL, or in the next higher grade.  If the soldier does not consent to reenlistment, TDRL status will be ended as soon as possible.”  Appendix C, paragraph C-10, requires the Physical Evaluation Board Liaison Officer (PEBLO) to counsel enlisted members assigned to the TDRL when they are determined fit for duty and explain that they may either reenlist or be discharged.

Army Regulation 601-210 provides the standards for enlistment.  Paragraph 5-53 of this regulation states that individuals enlisting within 90 days of being discharged from the TDRL, with a finding of fitness for duty, will be processed without a physical examination and without regard to basic enlistment qualifications or disqualifications, with limited exceptions, most of which concern law violations committed after the individual’s discharge from the Regular Army and placement on the TDRL.

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 applicant has not submitted any evidence or argument which would show that he was not properly determined to be physically fit to perform his duties at the time of his third consideration by a PEB.  Without such evidence, the Board must consider his discharge from the TDRL proper.

2.  In addition, if the applicant did suffer from another medical disorder at the time of his third PEB (which has not been proven), it was not relevant.  Only those conditions for which a soldier is rated when he or she is placed on the TDRL, plus any other condition considered as a residual of the condition for which placed on TDRL, may be rated for permanent disability status.  

3.  The applicant has not submitted any evidence to support his allegations of improper processing by his PEB or that he was the subject of a conspiracy.

4.  As for the applicant’s concerns about his eligibility to reenlist, with a presumption of regularity it must be assumed that the applicant was informed of his right to reenlist and he opted not to exercise that option.  With a finding of fitness by the PEB he would have been allowed to reenlist.  However, if he wasn’t promoted he would be subject to mandatory removal at his RCP.  However, he would have been subject to mandatory removal at his RCP if he had not been promoted if he had not been discharged and placed on the TDRL.  The Army can only provide for a soldier’s return to active duty in the same status as he or she left active duty.  To do otherwise would be giving those soldiers a benefit not provided to other soldiers.

5.  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

___tsk___  __sk____  ___jhk___  DENY APPLICATION

		   Carl W. S. Chun
		   Director, Army Board for Correction
		   of Military Records

INDEX

CASE ID	AR1999030987	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000725	
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.	108.05	
2.		
3.		
4.		
5.		
6.