RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            27 MAY 2004
      DOCKET NUMBER:   AR2003096853


      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             |
|     |Ms. Deborah L. Brantley           |     |Senior Analyst       |


  The following members, a quorum, were present:

|     |Mr. Melvin Meyer                  |     |Chairperson          |
|     |Ms. Regan Smith                   |     |Member               |
|     |Mr. Thomas O'Shaughnessy          |     |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).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, disability retirement.

2.  The applicant states, in effect, that military medical personnel, prior
to his discharge from the Army, misdiagnosed his colon cancer as
hemorrhoids.  He states that had his colon cancer been properly diagnosed
he would have received immediate treatment and been medically retired from
active service.  He states that “it is the opinion of VA [Department of
Veterans Affairs] examiner” that his cancer had its onset in the military
and is service connected.

3.  The applicant provides copies of medical treatment forms completed
after his separation from active duty and a copy of his Army retirement
physical examination.  He also submits a chronological listing of various
medical issues for which he received treatment while in the military
commencing in 1981 and ending with his final physical examination.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 31 July 1997.  The application submitted in this case is
dated
27 August 2003.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitation if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  Records available to the Board indicate that the applicant entered
active duty in November 1976 and served continuously through a series of
reenlistment actions until 31 July 1997 when he was discharged with
“sufficient service for retirement.”  His name was placed on the retired
rolls the following day.

4.  Throughout the applicant’s military service, he performed duties in the
administration field and in October 1993 he was promoted to pay grade E-7,
the rank he held when he retired in 1997.  He consistently received
exceptional performance evaluation reports, was awarded a variety of
individual decorations, and passed his annual physical fitness tests.  The
last performance evaluation contained in his file was rendered in December
1996 for the 12-month period ending in October 1996.  That report noted
that he was an outstanding performer, the recognized expert in classified
documents, policies, and procedures, and that he consistently scored above
292 on the annual physical fitness test.

5.  Other than his retirement physical examination, which was provided by
the applicant, there were no other service medical records available to the
Board.

6.  The retirement physical examination was conducted on 24 January 1997.
In his report of medical history, the applicant indicated that his health
was good and although there were a myriad of medical issues for which he
reported receiving treatment during his military service, the examining
physician concluded that the applicant was medically qualified for
retirement with a physical profile of 1-1-1-1-2-1, indicating only that he
wore contact lenses.

7.  The chronological listing of medical treatment provided by the
applicant which outlined his various medical ailments for which he received
treatment while in the military indicates that he complained of being dizzy
and faint in March 1994, and had pain and discomfort “passing waste” and
blood on toilet paper in February 1997.

8.  On 9 December 1998 the applicant was seen by a civilian physician with
a complaint of “loose stools” for 9 to 10 months.  The medical report
indicated that the applicant had a sigmoidoscopy in March 1997 which was
“entirely normal.”  The examining physician noted that “there is a real
flavor of irritable bowel syndrome here” and instructed the applicant to
avoid gas producing foods, high volume acidic fluids, and to try a lactose-
free diet for 2 weeks.  If his symptoms did not improve within 6 weeks “we
may consider a colonoscopy….”

9.  On 27 January 1999 the applicant returned to Johns Hopkins Medical
Services for follow-up treatment at which time it was determined that he
should be scheduled for a colonoscopy.  Subsequent medical statements,
provided by the applicant, indicate that he underwent a colonoscopy on 19
February 1999 and was diagnosed with rectal cancer.  He underwent a
surgical resection with primary anastomosis in March 1999 and completed
chemotherapy in September 1999.  A November 1999 statement indicated that
the applicant was “exercising full time, and is now back to work full
time.”

10.  A February 2000 colonoscopy was normal, as was a colonoscopy in
February 2001 and February 2002.

11.  In an August 2001 statement, addressed “To Whom it May Concern” the
applicant’s physician wrote that the applicant was “working with the VA
Medical System for compensation” and based on what the applicant told him,
the medical symptoms which ultimately led to the diagnosis of rectal cancer
“were present while he was in the military” and that “given the size of the
mass, and the fact that tumors are usually slow growing, this tumor was
present while in the military.”

12.  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 Soldier 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.

13.  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 AND CONCLUSIONS:

1.  The evidence confirms that the applicant continued to successfully
perform his military duties throughout his military service in spite of his
treatment for various medical conditions.  His continued performance of
duty until his separation from active duty in July 1997 raised a
presumption of fitness which he has not overcome by evidence of any
unfitting, acute, grave illness of injury concomitant with his separation.

2.  While it is possible that his colon cancer may have been present at the
time of his retirement in 1997 there is no evidence it impacted on his
ability to perform his duties and it did not interrupt his military
service.  As such there is no basis to now grant disability retirement.  It
should also be noted that by February 2000, following treatment, there was
no evidence of recurrent disease.

3.  In order to justify correction of a military record the applicant must
show, 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.
4.  In view of the foregoing, there is no basis for granting the
applicant's request.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 31 July 1997; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
30 July 2000.  However, the applicant did not file within the 3-year
statute of limitations and has not provided a compelling explanation or
evidence to show that it would be in the interest of justice to excuse
failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

__MM___  ___RS __  __TO ___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate
the existence of a probable error or injustice.  Therefore, the Board
determined that the overall merits of this case are insufficient as a basis
for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




            _____Melvin Meyer________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2003096853                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040527                                |
|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.                      |                                        |