ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 7 May 2019 DOCKET NUMBER: AR20160015445 APPLICANT REQUESTS: A duty-related medical discharge from the California Army National Guard (CAARNG). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DA Form 199-1 (Formal Physical Evaluation Board (PEB) Proceedings) * Department of Veterans Affairs (VA) Rating Decision FACTS: 1. The applicant states: a. As a member of the CAARNG, he completed two tours of duty in Iraq as an aircraft mechanic (helicopters) from 1990 to 1991 and from November 2010 to December 2011. During each of his deployments, and in connection with his military service, he was daily and directly exposed to jet fuel, vapors, exhausts, petroleum products, gasoline, kerosene, cleaning solvents, and ambient/airborne fine dust; each of which are potential carcinogens. He was not regularly exposed to these items prior to his service with ARNG. b. He was first diagnosed with colon cancer in June 2012, while on reserve status and commenced treatment. On 1 November 2013, he applied for medical benefits from the VA. His application was granted on 14 March 2016, with the supporting findings that “although not shown in service, service-connection for residuals, colon cancer to include resection of the large intestine had been granted on the basis of presumption” and accordingly, the VA granted an entitlement to service-connection retroactive to his original VA claim, with a 100 percent (%) evaluation of his cancer. c. He does not have a history of drug, alcohol, or tobacco use. It is his belief, as supported by the VA findings, that his colon cancer was caused by his military service, specifically his frequent and regular exposure to the dust and chemicals noted herein this application. a. 2. The applicant provides a DD Form 149 and a copy of a DA Form 199-1 showing a formal PEB convened on 20 August 2014. He also provides a copy of his VA Rating Decision, dated 14 March 2016, which shows he was awarded a 10% service- connected disability rating for residuals, colon cancer, to include resection of large intestine effective 1 November 2013. An evaluation of 10% was assigned effective 1 July 2014. 3. A review of the applicant’s military records show: a. Having prior service in the U.S. Navy and U.S. Army Reserve, he enlisted in the CAARNG on 17 March 2005. He held military occupational specialty 15B (Aircraft Powerplant Repairer). b. He entered active duty in support of Operation New Dawn on 11 November 2010. He served in Iraq from 2 February to 7 November 2011. He was honorably released from active duty on 28 December 2011 and was transferred to a CAARNG reserve unit. c. On 6 April 2013, he received counseling for not meeting medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3 and his election to appeal a Non-Duty Related PEB (NDR-PEB) solely for a fitness determination and possible retention in the ARNG. d. On 6 September 2013, he was issued a permanent profile for abdominal and back pain. e. On 24 September and 8 October 2013, the CAARNG State Surgeon’s Office advised the applicant of the recommendation for his NDR Medical Separation. f. An ARNG Annual Statement, dated 7 October 2013, shows he was credited with 11 years and 3 months of service for retired pay as of 17 March 2013. g. On 24 April 2014, an information PEB convened and determined he was physically unfit due to colon cancer and deferred his disposition. The PEB noted that he was in an aggressive treatment regimen for a chronic disease preventing deployment to austere conditions. He did not concur with the board’s findings and requested a formal hearing. h. On 1 August 2014, he was granted a formal PEB hearing. i. On 20 August 2014, a formal PEB convened and determined he was physically unfit due to colon cancer and deferred his disposition. He did not concur and elected to submit a written appeal. j. In his appeal, the applicant stated that he felt he could still deploy as a fully functional member of his unit. a. k. On 21 September 2014, he was advised, through his command, that following review of his case, the PEV adhered to the findings and recommendations of the formal hearing. l. On 8 October 2014, the U.S. Army Physical Evaluation Board, advised that the agency’s conclusion was that his case was properly adjudicated by the PEB, which correctly applied the rules that governed the Physical Disability Evaluation System in making its determination. The findings and recommendations of the PEB were supported by substantial evidence and were therefore affirmed. m. On 4 December 2014, the CAARNG State Surgeon determined his medical discharge effective 31 January 2015. n. Orders Number 339-100, issued by the CAARNG on 5 December 2014, announced his discharge from the ARNG effective 31 January 2015, under the provisions of National Guard Regulation (NGR) 600-200, paragraph 6-351(8). 4. An advisory opinion was received from the Senior Medical Advisor, Army Review Boards Agency, on 2 October 2018, in the processing of this case. The medical advisor reviewed the record for alleged medical condition(s) that may have warranted separation through medical channels or medical conditions(s) not considered during medical separation processing. The medical advisor reiterated the applicant’s period of military service and stated after a comprehensive review of the medical and other records, he concluded that there was no cause to recommend a change in the PEB fitness determination for the applicant’s contended condition. A review of the available documentation found no evidence of a medical disability or condition which would support a change to the character, reason, rated condition(s), disability determination(s), disability rating (none), and/or combat relatedness for the discharge in this case. 5. The applicant was provided with a copy of this advisory opinion for acknowledgement and/or rebuttal. He did not respond. 6. By regulation (NGR 600-200), a Soldier may be discharged upon determination of being medically unfit for retention standards of chapter 3, AR 40-501. 7. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. 1. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. After reviewing the documentary evidence provided by the applicant and found within his military service record, the Board found insufficient evidence to change the narrative reason of separation. Based upon the medical advisory finding no evidence of a medical disability or condition which would support a change to the character, reason, rated condition(s), disability determination(s), disability rating (none), and/or combat relatedness for the discharge, the Board concluded that the narrative reason currently depicted on the applicant’s DD Form 214 accurately depicts the facts and circumstances leading to discharge. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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. 1535874 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. REFERENCES: 1. National Guard Regulation 600-200 (Enlisted Personnel Management) governs procedures for enlisted personnel of the Army National Guard (ARNG). The regulation covers reasons, applicability, codes, and board requirements for administrative discharges from the Reserve of the Army and/or the State ARNG. Paragraph 6-351(8) provides for the separation of personnel who are found medically unfit for retention under the provisions of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3. It also states to refer to Army Regulation 135-178, chapter 12. 2. AR 40-501 governs medical fitness standards for enlistment, induction, appointment, retention, and separation (including retirement). Basically, members with conditions as severe as listed in this chapter are considered medically unfit for retention on active duty. 3. Title 10, U.S. Code (USC), section .1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent. Title10, USC, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent. 4. Title 38, USC, sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA, however, is not required by law to determine medical unfitness for further military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved, an individual’s medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.