RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            10 November 2005
      DOCKET NUMBER:   AR20040011503


      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             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Margaret  K. Patterson        |     |Chairperson          |
|     |Ms. Linda D. Simmons              |     |Member               |
|     |Mr. Michael J. Flynn              |     |Member               |

      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, that his 0 percent (%) disability
rating be changed to 60%.

2.  The applicant states, in effect, he has severe postgastrectomy syndrome
and is now disabled.  He claims the Physical Evaluation Board (PEB) based
its conclusion on ratable residuals of the cancer in all three of its
reviews.  He states the PEB did not address the here and now, which would
be the severe postgastrectomy syndrome he suffers from.

3.  The applicant provides a Self-Authored statement in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  On 22 January 2004, a Medical Evaluation Board (MEB) diagnosed the
applicant with gastric cancer and referred his case to a PEB for
evaluation.  The applicant concurred with the MEB’s findings and
recommendation.

2.  On 1 April 2004, the applicant’s case was evaluated by a PEB convened
in Washington D.C.  The PEB found that the applicant was physically unfit
based on his diagnosed condition of gastric cancer.  The PEB noted the
applicant’s condition had been treated with chemotherapy and radiation, and
that there was no evidence of recurrent cancer, and it assigned a
disability rating of 0%.  The PEB informed the applicant that it appeared
he could be qualified for non-regular retirement pay at age 60, and that he
had the option of accepting disability severance pay and forfeiting his
Reserve retirement, or being placed in an inactive Reserve status and
receive Reserve retired pay at age 60.  The PEB finally recommended the
applicant’s separation with severance pay.

3.  On 12 April 2004, the applicant nonconcurred with the PEB findings and
requested a formal hearing.

4.  On 2 June 2004, a PEB was convened in Washington DC to consider the
applicant’s appeal at a formal hearing.  The applicant and his counsel were
present at the hearing.  Based on a review of the medical evidence of
record, the PEB upheld the original PEB findings and again rated the
applicant at 0% based on the medical evidence and testimony presented.  As
a result, the applicant’s separation with severance pay was again
recommended.

5.  On 20 July 2004, the President of the PEB noted the applicant’s letter
of rebuttal to the formal hearing held in his case and the Physician
addendum, dated 14 June 2004, which was submitted by the applicant with his
rebuttal.  The PEB President concluded the applicant did not provide new
substantive medical evidence of any ratable residuals of his cancer.  As a
result, the PEB affirmed the decision of the formal hearing that found the
applicant unfit for duty with a 0% disability rating.  The applicant’s case
file was forwarded to the United States Army Physical Disability Agency
(USAPDA) for review.

6.  On 5 August 2004, the USAPDA reviewed the applicant’s entire case file.
 The Agency’s conclusion was that the applicant’s case was properly
adjudicated by the PEB, which correctly applied the rules that govern the
Physical Disability Evaluation System (PDES) in making its determination.
The USAPDA found the findings and recommendations of the PEB were supported
by substantial evidence and they were therefore affirmed.  The applicant
was further notified that he could be eligible for medical care through the
Department of Veterans Affairs (VA) if that agency determined his illness
or injury was service connected.

7.  On 5 August 2004, the PEB proceedings pertaining to the applicant were
approved for the Secretary of the Army, and on 10 September 2004, the
applicant elected to receive disability severance pay upon separation, and
he acknowledged that he would not receive Reserve retired pay at age 60.

8.  On 15 October 2004, the applicant was honorably separated, by reason of
physical disability with severance pay, under the provisions of paragraph
4-24b(3), Army Regulation 635-40.  The DD Form 214 he was issued confirms
he completed a total of 1 year and 2 days of active military service and
held the rank of sergeant.

9.  Army Regulation 635-40 establishes the Army Physical Disability
Evaluation System and sets forth policies, responsibilities, and procedures
that apply in determining whether a soldier is unfit because of physical
disability to reasonably perform the duties of his or her office, grade,
rank, or rating.

10.  Title 38, United States Code, sections 1110 and 1131, permits the VA
to award compensation for a medical condition which was incurred in or
aggravated by active military service.  The VA, however, is not required by
law to determine medical unfitness for further military service.  The VA,
in accordance with its own policies and regulations, awards compensation
solely on the basis that a medical condition exists and that said medical
condition reduces or impairs the social or industrial adaptability of the
individual concerned.

11.  The VA can evaluate a veteran throughout his lifetime, adjusting the
percentage of disability based upon that agency's examinations and
findings.  However, these changes do not call into question the application
of the fitness standards and the disability ratings assigned by proper
military medical authorities during the applicant’s processing through the
Army PDES.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request for an increase to the disability rating
assigned by the PEB, along with the supporting evidence he provides were
carefully considered.  However, there is an insufficient evidentiary basis
to support the requested relief.

2.  The evidence of record confirms the applicant was properly processed
through the PDES in accordance with the applicable laws and regulations.
His case was properly considered by a PEB and his appeal was properly
reviewed at a formal PEB hearing at which he and his counsel were present.


3.  All the arguments and medical evidence provided by the applicant and
his counsel were considered and evaluated by both the PEB during its
original review, and during the appellate process, which included a formal
PEB hearing, which upheld the original PEB findings and recommendations.
Further, a review of the case was completed by the USAPDA, which resulted
in the PEB findings and recommendations being finally affirmed.

4.  The PEB findings and recommendations, to include the assigned
disability rating, were based on the applicant’s gastric cancer condition,
which had been successfully treated with no sign of recurrent cancer.  The
applicant’s claim that he now suffers from postgastrectomy syndrome does
not call into question the application of the fitness standards and the
disability ratings assigned by proper military medical authorities during
his processing through the Army PDES.  The applicant is advised to contact
the VA.  This agency can determine if his condition is service connected,
and evaluate him throughout his lifetime, adjusting the percentage of
disability based upon how his medical condition reduces or impairs his
social or industrial adaptability.

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
provide any new medical evidence that would call into question the original
decision of the PEB,  the decision of the formal PEB, or the affirmation of
the PEB findings and recommendations by the USAPDA.  Therefore, there is an
insufficient evidentiary basis to support granting the requested relief.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___MKP _  __LDS__  ___MJF__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




            ____Margaret K. Patterson __
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040011503                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/11/10                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |2004/10/15                              |
|DISCHARGE AUTHORITY     |AR635-40                                |
|DISCHARGE REASON        |Disability-Severance Pay                |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  177  |108.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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