IN THE CASE OF: BOARD DATE: 4 February 2016 DOCKET NUMBER: AR20140020652 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests: a. removal from the U.S. Army Reserve (USAR) Retired Reserve and reinstatement in his original troop program unit (TPU), b. back pay and allowances, and c. retirement point credit for the 16-month period he was "erroneously forced into the IRR [Individual Ready Reserve]" in May 2011 and for the period 2013 to 2014. 2. The applicant states: a. He wants to be removed from the Retired Reserve and transferred to the 3rd Battalion, 346th Regiment (Combat Support/Combat Service Support), in his originally-assigned position. b. He wants to receive back pay and retirement points for the 16-month period he was "erroneously forced into the IRR" by the 3rd Battalion, 346th Regiment (Combat Support/Combat Service Support), in May 2011. c. He wants his retirement year from 2013 to 2014 corrected, showing a "good" year. d. Per doctor letters, medical records, commander and employer letters, and Army Physical Fitness Test (APFT) results, he should have been found fit for duty. His last periodic health assessment (PHA) is proof of that. He feels the medical board determined his medical unfitness based on what-ifs and incorrect/obsolete information. e. It was not his fault that the 3rd Battalion, 346th Regiment (Combat Support/Combat Service Support), placed him in the IRR erroneously, but he suffered a great loss. f. He served his entire retirement year from 2013 to 2014. 3. The applicant provides: * PHA, dated 2 May 2014 * supporting letters from doctors * supporting letters from his commanding officer and supervisor * three DA Forms 705 (APFT Scorecard) showing tests, dated 2 May 2010, 6 November 2010, 4 November 2012, 2 June 2013, and 1 November 2013 * five DA Forms 2166-8 (Noncommissioned Officer Evaluation Report) covering the periods 15 May 2007-14 May 2008, 15 May 2008-14 May 2009, 15 May 2009-14 May 2010, 15 May 2010-14 May 2011, and 1 October 2012-30 September 2013 * military awards * Department of Justice awards * paperwork for back pay and retirement points * assignment orders * retirement orders * email correspondence * leave and earnings statements * U.S. Army Human Resources Command (AHRC) Form 249-E (Chronological Statement of Retirement Points) * copy of addressed envelope for his returned packet by priority mail from the U.S. Army Reserve Command (USARC) * mail tracking page and receipt * self-authored memorandum for the USARC, dated 5 September 2014, subject: Rebuttal of Medically Unfit for Duty Retirement, Back Pay for Wrongly Being Placed in the IRR, and Corrections of Retirement Year 2013-2014 * Army Review Boards Agency letter, dated 19 August 2014 * original DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552), dated 18 July 2014 * letter from a Member of Congress, dated 5 June 2015 CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the USAR under the Delayed Entry Program for a period of 6 years. He was discharged from the USAR on 8 July 1980 for immediate enlistment in the Regular Army. 2. He enlisted in the Regular Army on 9 July 1980 for a period of 3 years. He was honorably released from active duty on 8 July 1983 and transferred to the USAR Control Group (Reinforcement) to complete his remaining service obligation. 3. He was reassigned to a USAR TPU effective 16 September 1984. 4. A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 29 April 1999, shows he injured his back while lifting a wall locker onto a military truck on 19 August 1998 while attending drill (battle assembly). He was treated for muscle strain to his lower back. 5. He was promoted to master sergeant effective 1 September 2003. 6. In April 2010, he was issued a temporary physical profile rating of 333111 for cancer and a post-bone marrow transplant. 7. In May 2010, he was issued a permanent physical profile rating of 313111 for bone marrow cancer, kidney failure, and lower back pain. 8. In June 2010, he was issued a permanent physical profile rating of 313121 for cancer, anemia, kidney disease, systemic tissue disease, heart problem, and low back pain. 9. On 26 May 2011, he was assigned to the USAR Control Group (Reinforcement) by reason of "mandatory – involuntary shaping the force." 10. In January 2012, he was issued a permanent physical profile rating of 312121 for cancer, anemia, kidney disease, systemic tissue disease, heart problem, low back pain, and decreased distant visual acuity. 11. He provided two letters from physicians, dated March and April 2012, who state: * the applicant has chronic kidney disease, multiple myeloma, and hypertension * he underwent a bone marrow transplant in January 2007 * he has been in remission and relatively healthy since that time 12. He provided APFT Scorecards, dated 2010, 2012, and 2013, showing he passed the APFT. He also provided noncommissioned officer evaluation reports covering the periods 15 May 2007-14 May 2008, 15 May 2008-14 May 2009, 15 May 2009-14 May 2010, 15 May 2010-14 May 2011, and 1 October 2012-30 September 2013 showing he passed his APFTs. 13. He provided two letters from employers, dated July 2013, who state: * he was fit for duty * he passed all his APFTs to date * he has no medical/physical restrictions with the exception of the 2-mile run for which he completes the 2 1/2-mile walk as his alternate aerobic event * he completes all his military duties in a very professional manner with very little supervision * he works 40 hours a week as a Federal law enforcement officer with the Federal Bureau of Prisons * he is the laundry machine operator supervisor * his performance has always exceeded the standards and has been outstanding for the past 2 years * he does not have any medical or physical restrictions at work 14. His medical evaluation board proceedings are not available for review. 15. On 18 July 2013, a formal physical evaluation board (PEB) found him unfit due to myeloma, anemia, amyloidosis, and cardiomyopathy. The PEB recommended his referral for case disposition under Reserve Component regulations. The applicant did not concur with the PEB findings and submitted an appeal. He also elected to be transferred to the Inactive Status List. 16. On 31 July 2013, the PEB reviewed his appeal and adhered to the original findings and recommendations of the formal PEB. The appeal denial letter stated: a. Paragraph 1 of his appeal was the same as he wrote previously and his DA Form 199-1 (Formal PEB Proceedings) was changed to reflect cardiomyopathy, not congestive heart failure (although that is one of the conditions his unit referred him for) as a result. b. As noted on his DA Form 199-1, they recognized his amyloidosis and multiple myeloma have been in remission since his stem cell transplant in 2007. His laboratory values for his blood urea nitrogen and creatinine (reflective of his kidney function) were 58 blood urea nitrogen and 3.7 creatinine. These are extremely high values and require him to have medications, special dietary concerns, and prevention of dehydration. Although he stated he can mobilized and perform all his duties during annual training or battle assemblies, his renal status at the time he participated in these activities were not provided. c. Continuation in the service would place an undue burden on the government to maintain him safely and retention in the service represented a decided medical risk to his health with the degree of his renal disease. d. His case and appeal would be sent to the U.S. Army Physical Disability Agency for review. 17. On 10 September 2013, the U.S. Army Disability Agency concluded: a. His case was properly adjudicated by the PEB, which correctly applied the rules that govern the Physical Disability Evaluation System in making its determination. b. The findings and recommendations of the PEB were supported by substantial evidence and therefore affirmed. c. The issues raised in his appeal were responded to by the PEB in its 31 July 2013 memorandum. d. The U.S. Army Disability Agency concurred with the response provided by the PEB. 18. He provided several letters from physicians, dated 2014, who stated: a. The applicant was treated for a serious illness in 2006 and 2007, but it appears he has recovered from the same. The physician thinks more likely than likely not, the applicant would be able to continue working both in his civilian occupation and participating in the USAR until what would be considered a normal retirement date. He would disagree with any assertion that the applicant is unfit for service. The applicant is now a 7-year survivor and seems to be free of the malignant plasma cell disease that caused his initial problem. He predicts the applicant will most likely live out a normal life span. b. The applicant has been a patient since 2007. His has a history of amyloidosis, but successfully in remission since bone marrow transplantation in 2007. He has no signs of recurrence. He does have a mild anemia, which does not impact his quality of life. From a hematology and oncology standpoint, he has no restrictions. The physician believes the applicant is fit for any gainful employment or work opportunity without restrictions. c. The physician has been treating the applicant for 7 or 8 years. The applicant has a history of hypertension and renal insufficiency. He has cardiomyopathy with marked reduction in his heart function. He is happy to say that medical therapy is controlling his blood pressure. His heart function has returned to normal so in that regard, to him, he does not feel the applicant is at all impaired or disabled from a cardiovascular standpoint. 19. He provided a PHA, dated 2 May 2014, showing: * his 2007 kidney problems from multiple myeloma were stable now * his high blood pressure was stable on medications * he had intermittent lumbar pain * his cancer was in remission since 2007 20. He also provided a medical record from his physician, dated 2 May 2014, which states, "I find this individual free of communicable disease and fit for duty." 21. His chronological statement of retirement points, dated 16 October 2014, does not show he earned any retirement points after 23 May 2013. 22. On 23 May 2014, he was medically disqualified – not result of own misconduct – from the USAR and assigned to the Retired Reserve. 23. An advisory opinion was obtained from the Chief, Personnel Management Division, Headquarters, USARC, dated 24 November 2015, in the processing of this case. The advisory official states: a. The Army Reserve Surgeon's office reviewed his application and supporting documents and determined he exhausted all of his administrative remedies in seeking continuance in the USAR as a TPU Soldier. b. Soldiers are afforded opportunities to appeal medical findings during the medical board process. During the appeal process, Soldiers are afforded the opportunity to present new or additional medical evidence to support their appeal to the PEB. The applicant did exercise the opportunity to appeal the PEB findings. However, even after his appeal, the PEB still found him unfit. 24. The advisory opinion was furnished to the applicant for comment. On 16 December 2015, he responded. In summary, he stated: a. He thought he was referred to a medical board due to his PHAs. His medical board evaluation was for cancer and heart failure which were corrected in January 2007 after the bone marrow transplant. b. The PEB discontinued the first board in September 2010. In October/November 2010, he was instructed to again complete a medical packet for a medical board ordered by the brigade this time. During his medical board proceedings, the medical doctor's focus was on "what ifs." c. As evidenced by the written statements, he had no medical issues in the performance of his duties. The PEB did not follow Army Regulation 635-40, paragraph 3-1. The Army doctor kept stating he would be non-deployable due to his kidney failure/disease and was therefore medically unfit for duty. All of his medical records show his kidney function had been stable since April 2007. When the doctors took him off dialysis, his kidneys failed during his bone marrow transplant in January 2007. d. He was assigned to the 3rd Battalion, 346th Regiment, in May 2006. Several erroneous actions were taken against him while assigned to this unit. In 2011, his paragraph, line, and position number were taken from him and given to another Soldier and he was placed in the IRR due to overstrength. He should have remained in the unit and the other Soldier should have been determined as overstrength and placed in the IRR. e. Considering all the written evidence stating he was medically and physically fit for duty, there can only be one reason the PEB found him unfit – that it was in retaliation for going outside the military and including the Commander in Chief to have the injustice corrected in 2012 and being reassigned back in his original position in the 3rd Battalion, 346th Regiment. He is sure all involved were very embarrassed, especially his chain of command. They all told him the commander can take a paragraph, line, and position number from one Soldier and give it to any Soldier he chooses. d. Another example of retaliation is that the unit administrator did not complete the paperwork for his retirement points for the year 2013 through 2014. As the unit administrator, she had to know this would make him have 30 "good" years for retirement. He received the pay, but no points. He called and emailed several times, but neither she nor anyone from the 3rd Battalion, 346th Regiment would respond. He emailed her and several S-1 Soldiers the paperwork for the correction and for his 30-year Presidential letter of appreciation. He was told in June 2014 that the letter would be taken care of. To date, he has not received this letter. He provided five enclosures outlined on page 2 of his rebuttal. 25. Army Regulation 135-180 (Army National Guard and USAR – Qualifying Service for Retired Pay Nonregular Service) implements statutory authorities governing granting retired pay to Soldiers and former Reserve Component Soldiers. Paragraph 2-8 states a Reserve Soldier must earn a minimum of 50 retirement points each retirement year to have that year credited as qualifying service. Only Soldiers assigned to an active status in a Reserve Component or individuals in active Federal service are authorized to earn retirement point credit. 26. Paragraph 3-1 of Army Regulation 140-10 (Army Reserve – Assignments, Attachments, Details, and Transfers) states that although the ability of a Soldier to reasonably perform his or her duties in all geographic locations under all conceivable circumstances is key to maintaining an effective and fit force, this criterion (worldwide deployability) will not serve as the sole basis for a finding of unfitness. DISCUSSION AND CONCLUSIONS: 1. The evidence shows: a. he was assigned to the USAR Control Group (Reinforcement) due to "mandatory – involuntary shaping the force" on 26 May 2011; b. a formal PEB found him unfit due to myeloma, anemia, amyloidosis, and cardiomyopathy in July 2013; and c. he was medically disqualified from retention in the USAR on 23 May 2014 and transferred to the Retired Reserve. 2. He requests removal from the Retired Reserve and reinstatement in his originally-assigned TPU. He contends he had no medical issues, he should have been found fit for duty, and he provided medical documentation from his physicians attesting to his fitness. 3. The USARC advisory official specifically noted: a. The Army Reserve Surgeon's office reviewed his application and supporting documents and determined he exhausted all of his administrative remedies in seeking continuance in the USAR as a TPU Soldier. b. Soldiers are afforded opportunities to appeal medical findings during the medical board process. The applicant appealed the PEB findings, but the PEB still found him unfit. 4. He wants to receive back pay and retirement points for the 16-month period he was "erroneously forced into the IRR." However, there is no evidence and he provided no evidence showing he was erroneously forced into the IRR. 5. The evidence of record does not support his contention that he served his entire retirement year from 2013 through 2014. His chronological statement of retirement points does not show he earned any retirement points after 23 May 2013. 6. Although he contends retaliation is the only reason the PEB found him unfit, there is no evidence and he provided no evidence to support this contention. 7. There is an insufficient evidentiary basis on which to grant the requested relief. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ___x_____ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _____________x____________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ABCMR Record of Proceedings (cont) AR20140020652 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20140020652 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1