MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            7 September 2000  
	DOCKET NUMBER:   AR1999033924

	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	
	Ms. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Ms. Celia L. Adophi		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Thomas B. Redfern III		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:  In effect, disability retirement.

APPLICANT STATES:  In effect, that she was diagnosed with breast cancer in November 1996, only two months after being retired for length of service.  She notes that in November 1995 a lump was discovered in her breast and she was told that a biopsy would be done but was ultimately told that a biopsy was not necessary and to simply return for annual visits.  She also states that she had surgery on her left foot several times and as a result has some balance problems and must wear orthopedic shoes.  She submitted no evidence in support of her request.

EVIDENCE OF RECORD:  The applicant's military records show:

She served an initial period of active duty between 1972 and 1975 and returned to active duty in September 1977.  The applicant then served continuously until her retirement for length of service on 30 September 1996.  She was promoted to pay grade E-7 in October 1990.

The applicant’s service medical records, obtained from her servicing VA office, indicate the applicant was seen by medical personnel on numerous occasions during her period of active military service.  She had foot surgery as early as 1978 while in Korea for “hammer toe correction.”  The applicant was periodically authorized orthopedic shoes and after receiving numerous temporary profiles was issued a permanent “L-2” profile for “chronic foot pain” in December 1994.  The profile permitted her to participate in physical training but indicated that during physical fitness testing she should substitute walking for the run portion of the test.  Her performance evaluation reports, however, note that the applicant’s profiles did not interfere with her performance of duty.  Her performance evaluation reports indicated the applicant was a very successful soldier.

In 1987 the applicant had two benign lumps removed from her left breast.  In 1993 an ultrasound of the applicant’s breast confirmed “fibrous type breast” and a benign cystic formation in the right breast.  She had several follow up visits and a November 1995 evaluation in the surgical clinic at Eisenhower Army Medical Center noted “no abnormal [unreadable] seen by exam today, couldn’t feel any masses.”  The evaluating physician recommended a follow up examination in three months.

On 30 September 1996 the applicant was released from active duty and her name placed on the retired rolls the following day.  At the time of her retirement she had 22 years of active Federal service and had served the last 19 consecutive years in an active status.

According to a 24 March 1997 consultation report, the applicant underwent a “routine screening mammography” in October 1996 which indicated “an area of suspicious calcifications” in the right breast.  A biopsy was performed in November 1996 revealing “infiltrating ductal carcinoma” and in December 1996 “a reexcision of the primary tumor bed and axillary dissection” was performed.  Her diagnosis was “stage I infiltrating ductal carcinoma of the right breast….”

A 9 September 1997 report from the applicant’s radiation oncologist noted that “examination of the right breast reveals a fair cosmetic result.  Palpation reveals some moderate tenderness but no evidence of recurrent disease.  Examination of her left breast reveals prominent glands with no definite evidence suspicious for disease.”

Army Regulation 635-40 states that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  When a solider is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the soldier is scheduled for separation or retirement, creates a presumption that the soldier is fit.  The presumption of fitness may be overcome if the evidence establishes that the soldier was, in fact, physically unable to perform adequately the duties of his or her office, grade, rank or rating for a period of time because of disability.  There must be a causative relationship between the less than adequate duty performance and the unfitting medical condition or conditions.  The presumption of fitness may also be overcome by an acute, grave illness or injury or other significant deterioration of the soldier’s physical condition which occurred immediately prior to, or coincident with processing for separation or retirement for reasons other than physical disability and which rendered the soldier unfit for further duty. 

Army Regulation 635-40 also states that soldiers with a diagnosed malignant tumor that has not metastasized and has responded favorably to therapy to the extent that there is no current evidence of the disease will not be found unfit.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The evidence confirms that the applicant continued to successfully perform her military duties throughout her military service in spite of her numerous medical conditions.  Her continued performance of duty until her separation from active duty in September 1996 raised a presumption of fitness which she has not overcome by evidence of any unfitting, acute, grave illness of injury concomitant with her separation.

2.  While it is highly likely that her breast cancer may have been present at the time of her retirement in 1996 there is no evidence it impacted on her ability to perform her duties and it did not interrupt her military service.  As such there is no basis to now grant disability retirement.  The Board also notes that in September 1997, following treatment, there was “no evidence of recurrent disease.”

3.  Additionally, the Board notes that the applicant successfully performed her military duties in spite of her chronic foot pain and her performance evaluation reports specifically noted that her profiles did not impact on her ability to perform her duties.

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.

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

___cla__  ___wtm__  __tbr___  DENY APPLICATION

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

INDEX

CASE ID	AR1999033924	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000907	
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.	108.00	
2.		
3.		
4.		
5.		
6.