MEMORANDUM OF CONSIDERATION


	IN THE CASE OF:        
	 

	BOARD DATE:            14 January 1999 
	DOCKET NUMBER:   AC96-09699
				   AR1999015679

	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. 




	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	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:  That his records be corrected to show service connected disability for prostate cancer and that his percentage of disability be increased.

APPLICANT STATES:  That the President expanded disability benefits to all Vietnam veterans suffering from prostate cancer.  He further states that he served in Vietnam in 1970 and in 1994 he was diagnosed with and treated for prostate cancer.  In support of his appeal, he submits a physician’s letter dated, 20 June 1994, indicating that he underwent a radical prostatectomy, a pathology diagnosis dated 21 June 1994, verifying presence of adenocarcinoma of the prostate, an article from a newspaper dated 29 May 1996, outlining the President’s order and a letter to the Department of Veterans Affairs which indicates that his percentage of disability should be increased due to agent orange induced cancer.

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

He accepted an appointment in the Army as first lieutenant on 25 March 1969 and he successfully completed his training as a supply and service officer.  On 26 March 1970, he was transferred to the Republic of Vietnam.

A review of the records reveals that on 30 June 1970, the applicant sustained multiple fragment wounds on both feet and around his knees while he was in Vietnam.  He had immediate debridement of the wounds in both knees.  He had two surgical procedures on the left foot, while on the right foot he had more than a dozen, most of them for infection of the bone.  As a result of his injuries, he was unable to engage in any sport activities where jumping, running and crawling were concerned.  Prolonged standing and prolonged walking gave him increasing distress and he was under continuous care of podiatrist and orthopedist.  His condition was not improving and it became disabling in the regular performance of his duty.

On 9 February 1976, a Medical Evaluation Board (MEB) convened to determine the applicant’s fitness for retention in the Army.  The MEB determined that the applicant was medically unfit for retention in the Army due to residuals of multiple fragment wounds in the lower extremities with scars on both knees, severe deformity of the right foot with marked flat foot appearance, limitation of motion of all joints of the toes of the right foot, osteomyelitis of the tarsal area and the first metatarsal of the right foot, limitation of motion of the left big toe, bone changes in the first metatarsal of the left foot and osteoporosis of all bones of the right tarsal, metatarsal, toe area and big toe of the left foot.  The MEB recommended that he be referred to a Physical Evaluation Board (PEB).

On 6 April 1976, an informal PEB convened and concluded that the applicant’s condition did not constitute physical unfitness in accordance with Army Regulation 635-40 and the PEB found him to be fit for retention on active duty.  The applicant indicated that he did not concur with the findings of the PEB and he requested a formal PEB with representation by counsel.

A formal PEB convened on 26 May 1976 and found the applicant to be unfit for retention on active duty.  The PEB rated his disabilities at 41 percent for multiple fragment wounds of both lower extremities which includes deformity of the right foot with marked flat foot appearance and arthritis of the left great toe and bone. He was rated 10 percent disabled for osteomyelitis of the right foot.  The PEB recommended that the applicant be permanently retired from the service with a combined disability rating of 50 percent.

Accordingly, on 29 July 1976, he was honorably retired by reason of physical disability, in accordance with Title 10, United States Code, section 1201.  He had completed 7 years, 4 months and 5 days of total active service.

On 23 April 1998, the Physical Disability Agency reviewed the records and found no evidence of error or injustice.  The PDA opined that there was no errors or injustices in the applicant’s military records and denial of the applicant’s request was recommended (COPY ATTACHED).

On 24 June 1998, the applicant submitted a rebuttal to the opinion obtained from the PDA which indicates that his permanent disability was the result of his being exposed to agent orange and although his prostate cancer was not detected in 1976, when he was discharged, the contamination and the seeds of his cancer were present.  His rebuttal further indicates that had medical technology existed  in 1976 the cancer might have been detected.

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.

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

1.  The actions by the Army in this case were proper, and there is no doubt to be resolved in favor of the applicant.

2.  The evaluation of the applicant’s disabilities by the PDA appropriately describes his conditions upon separation.  There is no evidence of record, nor has the applicant submitted any evidence that he had prostate cancer prior to his discharge from the Army.  Therefore, in regard to the disability ratings assigned to him by the PEB, there is no errors or injustices in his military records.

3.  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 the aforementioned requirement.

4.  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

___rvo __  __slp ___  __kan ___  DENY APPLICATION




						Loren G. Harrell
						Director


INDEX

CASE ID
AC96-09699/AR1999015679
SUFFIX

RECON
 
DATE BOARDED
1999/01/14
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.  108.02

2.

3.

4.

5.

6.