MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           15 March 2001                  
	DOCKET NUMBER:   AR1999034574

	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. Ernest M. Willcher		Chairperson	
	Mr. Thomas E. O'Shaughnessy		Member	
	Mr. Richard T. Dunbar		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:  Reconsideration of his request for changing his discharge for physical disability with severance pay to medical retirement.

APPLICANT STATES:  That he had leukemia while he was on active duty and, therefore, should have been rated for that condition, which would have resulted in his permanent medical retirement.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's original consideration of his case on 18 August 1999 (AR1999021228).

The applicant has submitted substantial medical records pertaining to treatment he received in the military and treatment he received after his discharge.  These medical records are new evidence and require reconsideration of the case by the Board.

In the processing of this case an advisory opinion was obtained from the Army Review Boards Agency (ARBA) Medical Advisor.  The Medical Advisor stated that while the applicant was first diagnosed as suffering from Chronic Myelogenous Leukemia (CML) in May 1994, he did have significant White Blood Cell (WBC) abnormalities in June 1992, 16 months after his discharge.  The Medical Advisor states that the applicant’s military medical records indicate that laboratory work on a blood sample in October 1990 indicated abnormalities which should have been investigated further at that time and, if it had, it most probably would have showed that the applicant had a developing bone marrow disease.  The applicant was furnished a copy of this advisory opinion and concurred with the Medical Advisor’s statement that the abnormal laboratory work of October 1990 should have been investigated further at that time and, if it had, it most probably would have showed that the applicant had a developing bone marrow disease, and adds that the Medical Advisor’s statement supports his contention that he should have been medically retired.  However, the applicant disagrees with the date he was first diagnosed with CML.  He states that it was in May 1993.

The Merck Manual of Diagnosis and Therapy, 14th Edition, states that the symptoms and signs of CML are fatigue, weakness, anorexia or weight loss.

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 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.  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. 

Department of Defense Instruction (DoDI) 1332.39, paragraph E2.A1.3.2.17, 7703, Leukemia, states “Leukemia requiring the use of chemotheraputic agents is rated analogous to leukemia requiring irradiation or transfusion.  Although some prolonged remissions and “cures” are being achieved with acute leukemia, temporary retirement should be considered in most cases at a maximum rating.  Service members with chronic leukemia who require treatment are often fit for prolonged periods of time with few profile restrictions.  Such cases must be individually judged on their merits.”

Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.

Title 10, United States Code, section 1203, provides for the physical disability separation with severance pay of a member who has less than 20 years service and a disability rated at less than 30 percent.

Title 38, United States Code permits the Department of Veterans Affairs (DVA) to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher DVA rating does not establish error or injustice in the Army rating.  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.  The DVA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual’s employability.  Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at a different disability rating based on the same impairment.  Furthermore, unlike the Army the DVA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings.  Confusion arises from the fact that different rating systems are used by the Army and the DVA.  While both use the Veterans Administration Schedule for Rating Disabilities (VASRD), not all of the general policy provisions set forth in the VASRD apply to the Army.  The Army rates only conditions determined to be physically unfitting, thus compensating the individual for loss of a career; while the DVA may rate any service connected impairment, in order to compensate the individual for loss of civilian employability. 

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 Board accepts the possibility that the applicant’s abnormal laboratory work of October 1990 may have been indicative of a developing bone marrow disease.

2.  However, there is no indication that the applicant exhibited any symptoms of CML until well after his discharge.  As such, while the applicant’s abnormal WBC count would have required consideration by a PEB if it had been identified as the beginning stages of leukemia, there is no reason to believe it would have been determined physically unfitting or, therefore, ratable.  As cited in evidence of record in this case, DoDI 1332.39, paragraph E2.A1.3.2.17, 7703, Leukemia, states that service members with chronic leukemia who require treatment are often fit for prolonged periods of time with few profile restrictions.  Therefore, the mere presence of leukemia is not in itself physically unfitting.

3.  Since the applicant’s CML manifested and became disabling subsequent to his discharge, it has been properly rated by and compensated for by the DVA.  This is a good example of a proper interaction between the Department of the Army and the DVA in compensating and caring for a veteran for a service related medical condition.

4.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

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

__emw __  __teo ___  ___rtd___  DENY APPLICATION

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

INDEX

CASE ID	AC1999034574	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010315	
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.	108.04	
2.		
3.		
4.		
5.		
6.