MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 06 DECEMBER 2001
         DOCKET NUMBER: AR2001059230

         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
Mr. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. Thomas A. Pagan		Member
Mr. Harry B. Oberg		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)

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APPLICANT REQUESTS: Physical disability retirement with a 100 percent disability rating.

APPLICANT STATES: That his condition has been diagnosed as moderate to severe aortic insufficiency with dilated aortic root (Marfan’s like syndrome), and that if his record of his medical condition was accurate upon his retirement, it would have shown a serious condition related to his cardio system.

He was diagnosed with testicular cancer of the right testicle in 1987. The testicle was removed, it was diagnosed as seminoma, stage A, and he was treated with radiation therapy. He returned to duty after a Medical Retention Board found him fit for duty. In 1989 he underwent an operation to remove his left testicle, which had also been diagnosed with cancer. The tumor was determined to be stage B-1 embryonal cell carcinoma, and based on that diagnosis he underwent an abdominal exploration, retroperioteal lymph node dissection, excision of the left spermatic cord followed by adjunctive chemotherapy. He completed his chemotherapy in May 1989. Since then he has been treated with full testosterone replacement therapy.

The applicant states that he has continuously consulted with urologists and general practitioners at all his locations. He provides a synopsis of his military career to include assignments as a battalion commander, deputy commander of an infantry training brigade, attendance at the Army War College, assignments in Korea, and a demanding job in the Pentagon. He retired from active duty on 1 October 2000 with more than 27 years of service.

He states that he has applied for evaluation of disability based upon the cancer and other conditions noted in his record. Throughout his retirement physical examination, he was never advised of any condition relating to his blood pressure or any problem with his heart, blood pressure, or the supporting vascular system.

He states that he learned of his condition in February 2001. He provides information concerning the events that occurred after his retirement. That information is contained in paragraph 5 of his request. He continues by stating that the judgment is that he would require a major surgical procedure, with significant risk in the near future to correct his enlarged aortic root and heart valve. He has undergone a series of tests and will repeat those tests so that the dimensions of the size of the aortic root can be determined. Based upon those tests he will be referred for surgery. The surgery is necessary and the only question is the timing. He states that there were signs of his condition for at least ten years, and that he never received medical advice to follow up on tests for heart, for blood pressure, or for the aortic root.


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

The applicant voluntarily retired from the Army in the rank of colonel on 30 September 2000 with over 27 years of military service. The applicant’s officer evaluation reports show that he was a truly outstanding officer, who was extremely successful in all his assignments, e.g., infantry company commander, battalion and brigade staff officer, infantry battalion commander, brigade deputy commander, staff position at the Pentagon, and so on. He was awarded a Master of Science Degree in Logistics Management, completed Command and General Staff College, and completed the Army War College.

The applicant’s officer evaluation reports show that he always passed the Army physical fitness test – the report ending in April 1990 shows that he attained the score of 300 on two tests during the rating period. His report ending in March 1996 shows that he was in top physical condition. The succeeding report shows that he was in great physical condition, and the one after that, in top physical condition.

The applicant submits 16 tabs with his application, showing his medical condition, medical diagnoses, and general medical history throughout his military career, but especially since 1987 and thereafter. Subsequent to his retirement, the applicant underwent an echocardiogram on 2 March 2001 at the Cardiology Service at Walter Reed Army Medical Center. The medical report shows that he was determined to have a moderate to severe aortic insufficiency with heavily calcified valve (possibly bicuspid) and moderate dilatation of the aortic root. It was recommended that he repeat the echo in 4 months and that he undergo an MRI Angio of the chest to evaluate the aortic root. Preventive infection medicine and medication to lower his blood pressure was also recommended.

Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

Army Regulation 40-501 provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.

Army Regulation 635-40, paragraph 3-2b states in pertinent part 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.

That paragraph goes on to say that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

Title 38, United States Code, sections 310 and 331, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service.

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 applicant was an infantry officer throughout much of his military career, performing duties in varied, demanding assignments as he has stated. He did his duty in spite of his medical condition, his operations, and his chemotherapy. His evaluation reports indicate that he was able to pass the Army physical fitness tests throughout his career. He himself stated that he has been healthy and athletic his entire life, and remained so at the time of his application. His continued performance of duty raised a presumption of fitness which he has not overcome by evidence of any unfitting, acute, grave illness or injury concomitant with his retirement.

2. Although there is no evidence, nor has the applicant provided any, to show that he received a disability rating from the VA, the award of VA compensation does not mandate disability retirement or separation from the Army. The VA, operating under its own policies and regulations, may make a determination that a medical condition warrants compensation and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. Consequently, due to the two concepts involved, the applicant's medical condition, although not considered medically unfitting for military service at the time of processing for retirement, may be sufficient to qualify him for VA benefits based on an evaluation by that agency. The VA is not required to determine fitness for duty at the time of separation. The Army must find a member physically unfit before he can be medically retired or separated.

3. The applicant did not have any medically unfitting disability which required physical disability processing. Therefore, there is no basis for physical disability retirement or separation.

4. The applicant has submitted neither probative evidence nor a convincing argument in support of his request.

5. 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.

6. 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

__FNE __ __TAP __ __HBO__ DENY APPLICATION

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

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INDEX

CASE ID	AR2001059230
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20011206
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.	177
3.
4.
5.
6.