PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:  26 September 2000
	DOCKET NUMBER:  AR2000036523

	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	
	Mr. Vic Whitney		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Thomas Baxter		Member	
	Mr. Melvin H. Meyer		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 records be corrected to show that he was retired by reason of physical disability effective 30 September 1998.

3.  The applicant states that he accepted retirement, effective 30 September 1998, under the Voluntary (Temporary) Early Retirement program (Authority) (TERA) in lieu of a disability retirement rated at 20 percent for anterior cervical discectomy and fusion.  On 27 April 1999 he was found to have rectal carcinoma. If this had been properly discovered at the time of his separation physical he would have been medically retired at 100 percent.  He submits copies of Department of Veterans Affairs (DVA) and civilian medical diagnosis and treatment reports in support of his application.

4.  The applicant’s military records show that he was serving in an Active Guard/Reserve (AGR) assignment on active duty in the rank of major when he was referred to a Physical Evaluation Board (PEB) on 2 February 1998.  The PEB findings and recommendation were that the applicant had a anterior cervical discectomy and fusion rated at 20 percent and was not fit for continued active duty in accordance with Army Regulation 635-40.  He was to be separated with severance pay based on his grade and years of service.

5.  On 13 July 1998 the National Guard Bureau (NGB) approved the applicant’s request for early retirement, as an exception to policy, under TERA in lieu of separation by reason of physical disability.  On 27 August 1998 a medical examination found him to be qualified for separation with a physical profile of 1.3.1.1.2.1.  A summary of physical defects noted cervical disc disease, a heel spur and arthritis of the left knee.  Effective 30 September 1998 the applicant was separated from active duty under the authority of Army Regulation 600-8-24, voluntary early retirement, and transferred to the Retired Reserve.

6.  The applicant underwent a DVA directed examination on 27 April 1999 concerning a rectal mass.  The radiology report notes a thickening of the rectal wall anteriorly and laterally.  A 3 May 1999 referral to an oncology clinic notes that biopsies revealed moderately differentiated adenocarcinoma (stage B2 rectal cancer).  A preoperative course of radiotherapy was recommended.

7.  A 13 May 1999 letter from a gastroenterology doctor notes that the applicant’s rectal cancer is a slow growing process, taking several years to evolve from a rectal polyp to malignancy.  Although the cancer was asymptomatic at the time of his separation physical examination, there is no doubt that it was present prior to his separation from the Army.

8.  A DVA rating decision on 8 July 1999 awarded the applicant a service connected disability for adenocarcinoma of the colon, rated at 100 percent from 1 October 1998.  The decision also noted that his rectal carcinoma developed while he was on active duty.
9.  A 14 September 1999 letter from a doctor of colon and anorectum surgery states that the applicant underwent an abdominoperineal resection on 16 August 1999 for rectal carcinoma.  He also notes that he has a permanent colostomy that he will have for the rest of his life.

10.  Another DVA rating decision, dated 29 September 1999, again notes their decision to continue his disability rating for adenocarcinoma of the colon at 100 percent.  The basis for the decision is that 100 percent is assigned when a colostomy is required and the assigned evaluation is considered permanent.

11.  A 20 December 1999 letter from a doctor of internal medicine notes that the rectal mass was likely growing approximately three to five years, or longer, prior to discovery.  Additional procedures were then conducted and a rectal carcinoma was found to be at an advanced state.

12.  In the processing of this case an advisory opinion was provided by the medical advisor for the Army Review Boards Agency (ARBA).  The medical advisor noted that the most common colorectal cancers are believed to arise from adenomatous polyps in the rectum.  These polyps are thought to require more than 5 years of growth before becoming clinically significant.  It was felt that the applicant most probably had the colorectal cancer while on active duty.  The applicant was provided an opportunity to rebut the advisory opinion and on 25 August 2000, in a telephone call to the staff of the Board, agreed with the advisory opinion without further comment.

13.  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 under the standard schedule of rating disabilities used by the DVA.  The Secretary concerned may retire a member, with retired pay if he determines that the unfitting disability is based upon accepted medical principles, the disability is of a permanent nature and stable, the disability is not the result of the member’s intentional misconduct or willful neglect, and was not incurred during a period of unauthorized absence, not the direct result of armed conflict, or caused by an instrumentality of war.

14.  The DVA Schedule for Rating Disabilities (VASRD), Code 7333, stricture of the rectum requiring a colostomy, shows that this is rated at 100 percent.

15.  Army Regulation 40-501, at chapter 3, provides standards for medical retention.  Basically, members with conditions as severe as listed in this chapter are considered medically unfit for retention on active duty.

16.  The Physical Disability Agency (PDA) has advised in similar cases that, had the applicant’s cancer been detected prior to separation, he would have been retained on active duty to undergo treatment, disability processing, and placement on the permanent disability retired list.

CONCLUSIONS:

1.  The applicant’s separation physical examination did not discover the adenocarcinoma resulting in his separation from active duty under the TERA program on 30 September 1998.  His cancerous condition was discovered 7 months after separation.

2.  There is sufficient evidence provided by the applicant and confirmed by the ARBA medical advisor, that the condition of the applicant’s cancer 7 months after separation indicates that it would have been present 3 to 5 years prior to his separation.

3.  Had the condition been diagnosed prior to his separation he would have been retained on active duty to undergo treatment, appropriate disability processing, and eventual placement on the permanent disability retired list with a 100 percent disability rating under VASRD Code 7333.  Accordingly, his separation on 30 September 1998 under the TERA program should be voided.

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

RECOMMENDATION:

That all of the Department of the Army records related to this case for the individual concerned be corrected by:

	a.  voiding the 30 September 1998 actions which separated him under the TERA program and placed him in the Retired Reserve effective 1 October 1998;

b.  showing that on 30 September 1998 he was physically unfit to perform the duties of his office, grade, rank, or rating by reason of stricture of the rectum requiring a colostomy, rated at 100 percent disabling under VASRD Code 7333;

	c.  showing that the unfitting disability is based upon accepted medical principles, the disability is of a permanent nature and stable, the disability is not the result of the member’s intentional misconduct or willful neglect, and was not incurred during a period of unauthorized absence, not the direct result of armed conflict, or caused by an instrumentality of war;

	d.  showing that he was separated from active duty on 30 September 1998 by reason of physical disability, rated at 100 percent; and

	e.  showing that effective 1 October 1998, he was permanently retired under the provisions of Title 10, U S Code, section 1201, with entitlement to retired pay in the grade of major.

BOARD VOTE:  

__ao____  __tb___  __mm____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____Arthur A. Omartian___
		        CHAIRPERSON

INDEX

CASE ID	AR2000036523	
SUFFIX		
RECON		
DATE BOARDED	20000926	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	108.00	
2.		
3.		
4.		
5.		
6.