PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:            11 February 2000                 
	DOCKET NUMBER:    AR1999033447

	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. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. George D. Paxson		Member	
	Mr. Thomas B. Redfern		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 voluntary early retirement be corrected to a medical retirement.

3.  The applicant states he had requested medical tests during his retirement physical examination which would have detected his cancer, but his request was denied.  Less than two months later he was diagnosed as having Stage IV colon cancer.  He contends that his cancer existed at the time of his discharge and would have warranted a medical retirement if it had been diagnosed.

4.  In support of his request he submits a letter from his physician who states that it is his opinion that, from the advanced stages of the colon cancer when he was operated on in October 1998, he had that cancer prior to his release from active duty.  He also submits a VA rating decision in which he is awarded a 100 percent disability rating for adenocarcinoma of the colon, stage IV, a 100 percent disability rating for metastatic adenocarcinoma of the lymph nodes, and six unrelated ratings of either 10 or zero percent.

5.  The applicant’s military records were not provided to the Board.  The following information was derived from documentation supplied by the applicant himself.

6.  The applicant enlisted in the Regular Army on 1 October 1983 with 4 years, 1 month and 17 days of prior active service and 10 years, 1 month and 20 days of prior service in the USAR not on extended active duty.  He served as a unit supply specialist and an automated logistic specialist and was promoted to pay grade E-6.  

7.  On 16 November 1995 the applicant had a colonoscopy performed which had negative results.

8.  On 31 August 1998 he was honorably retired for years of service under the voluntary early retirement program.

9.  On 14 October 1998 the applicant went to a civilian hospital’s emergency room complaining of severe stomach pain.  At that time he reported a history of his stomach pain beginning after a large meal on 20 September 1998.  The pain came and went but became increasingly severe during his episodic attacks.  He went to the emergency room for his pain and was sent home.  His pain then decreased but once again escalated, this time to debilitating proportions, which led to his admission to the hospital.  The initial tests at the hospital suggested that he may be suffering from a perforation of his bowl or a ruptured appendix.  The applicant consented to exploratory surgery and was found to have advanced stages of colon cancer.

CONCLUSIONS:

1.  The Board accepts that the applicant’s colon cancer was present at the time of his retirement in August 1998 and that it was physically unfitting.  The proximity of its diagnosis, the advanced stages of the condition, and his physician’s assessment as to the cancer’s origin were all considered in making this assessment.

2.  The level of the applicant’s disability at the time of his retirement cannot be determined from the existing evidence.  However, if his cancer had been detected during his separation physical examination, he would have been retained on active duty pending a medical evaluation board and physical evaluation board, and would not have had those until after he had received maximum medical benefit.  In consideration of the time it would have taken to provide the applicant maximum medical care and medically board him, it is reasonable to presume that he would not have been permanently retired until his cancer had reached 100 percent disabling proportions.  For the purpose of correcting this error and injustice, it would be far simpler to just correct the applicant’s retirement for years of service to placement on the Permanent Disability Retired List (PDRL), rated 100 percent disabled, than to void his discharge and show him either being retained on active duty or placed on the Temporary Disability Retired List (TDRL), and then placed on the PDRL.

3.  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 be corrected by:

a.  showing that the action separating the individual concerned from active duty on 31 August 1998 is void and of no force or effect;

b.  showing that on 31 August 1998 he was physically unfit to perform the duties of his office, grade, rank or rating by reason of adenocarcinoma of the colon, stage IV, rated 100 percent disabled under VASRD code 7343, and by reason of metastatic adenocarcinoma of the lymph nodes, rated 100 percent disabled under VASRD code 7799-7709; that the disability was incurred while he was entitled to receive basic pay as a member of the active Army; that it did not result from misconduct or willful neglect; that it was not incurred during a period of unauthorized absence; that it was not the direct result of armed conflict; and that it was not caused by an instrumentality of war; and

c.  showing that he was released from active duty on 31 August 1998 by reason of physical disability rated 100 percent disabled in accordance with the VASRD; and that, effective 1 September 1998, he was permanently retired under the provisions of title 10, United States Code, section 1201, with entitlement to retired pay of the highest grade satisfactorily held within the meaning of title 10, United States Code, section 1372.

BOARD VOTE:  

_mkp____  __gdp___  _tbr ____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__Margaret K. Patterson______
		        CHAIRPERSON

INDEX

CASE ID	AR1999033447	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000211	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	108.05	
2.		
3.		
4.		
5.		
6.