RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        23 NOVEMBER 2005
      DOCKET NUMBER:  AR20050002182


      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. John Slone                    |     |Chairperson          |
|     |Mr. Patrick McGann                |     |Member               |
|     |Mr. Larry Olson                   |     |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 he be restored to active duty
and that his disability retirement be voided.

2.  The applicant states he was medically retired in error by a doctor who
determined he had ulcerative colitis.  He states he does not have
ulcerative colitis and has been cleared by a doctor who specializes in that
field.  He states that he is requesting to be placed back on active duty so
he can finish his Army career.

3.  The applicant states that his ulcerations in his intestines were a
reaction to his chewing tobacco and that his medical records indicate that
he was using one can a day.  He states that at the time of his diagnosis he
asked the doctor if tobacco was causing the problem and he was told
absolutely not.  He states he quit using tobacco in December 1999 and the
ulcerations in his intestines went away.

4.  The applicant states he has been trying to return to active duty since
that time but some people have told him not to jeopardize his benefits from
the Department of Veterans Affairs.  He states the day he left the Army in
June 1997 he felt he lost the greatest job he ever had and since then has
been determined to return to the Army.

5.  The applicant provides a December 1996 medical document indicating he
used one can of tobacco a day, copies of two medical statements from 2003,
a copy of his May 1997 performance evaluation report, and a copy of a March
1997 letter of recommendation.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 12 August 1999, the day he was permanently retired by
reason of physical disability.  The application submitted in this case is
dated 21 January 2005.

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 limitations 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 the applicant enlisted in the
Regular Army for a period of 4 years on 20 April 1993.

4.  The applicant's service medical records were not available to the
Board.  However, according to information contained in documents associated
with his disability processing, in September 1996 he had a positive
tuberculin skin test and was started on medication.  The medical treatment
document provided by the applicant to support his argument that he was
consuming a can of tobacco a day is dated 27 December 1996 and was
associated with his tuberculosis surveillance.  The document notes "dip – 1
can a day" in response to a question about tobacco consumption.

5.  In March 1997, less than 60 days prior to his scheduled separation
date, the applicant underwent a Medical Evaluation Board (MEB).  The
evaluating physician noted the applicant was 27 years old, and had
complained of bloody diarrhea with four or five bowel movements a day in
December 1996.  Prior to the onset of those symptoms the applicant was in
his usual state of health.  It was noted the applicant had a history of
similar symptoms in July 1996 with frequent loose bloody stools for 1 week
which were associated with having eaten in a local restaurant.  He had no
symptoms between the July and December 1996 incidents.

6.  Upon presentation in December 1996 the applicant had a 1 week history
of increased bloating, cramps, flatus and loose bloody bowel movements,
with bright red blood and mucous mixed in the stool itself.  The evaluating
physician noted the applicant's symptoms did not resolve with treatment and
he underwent a colonoscopy in January 1997.  The colonoscopy showed
findings of diagnostic of inflammatory bowel disease which, with the
patient's history resulted in a diagnosis of ulcerative colitis.  He was
started on medication and after 2 weeks did not have any noted improvement
in symptoms.  His Prednisone dose was increased and temporary improvement
of his symptoms resulted.  His Prednisone was reduced and subsequently his
symptoms worsened with 5 to 10 bloody bowel movements a day.  His
medication was increased.  The evaluating physician noted that overall, the
applicant had not responded well to medication.

7.  In reporting his past medical history as part of his March 1997 MEB,
the applicant indicated he was an occasional smoker and used oral tobacco
occasionally.  The physician noted the applicant's medical status was
stable at the time but his disease process was still not being controlled
adequately by medications.  The physician noted the applicant was currently
able to perform his duties at work but that he had difficulty performing
strenuous activities to include details at work and physical training
because of his frequent episodes of diarrhea.  The physician recommended
referral to a Physical Evaluation Board (PEB).

8.  An informal PEB concluded on 1 April 1997 that the applicant's
ulcerative colitis with bloody diarrhea, requiring high dose oral steroids
and anti-inflammatory medications precluded performance of his duties but
that the current condition was not sufficiently stable for final
adjudication.  The PEB recommended the applicant's name be placed on the
TDRL (temporary disability retired list) with a 30 percent disability
rating.  The applicant concurred with the findings and recommendation of
the PEB and waived his right to a formal hearing.

9.  On 1 June 1997 the applicant was honorably discharged and his name was
placed on the TDRL the following day.

10.  In March 1998, 1 year after his initial MEB, the applicant underwent
another physical examination as part of his TDRL status.  The evaluating
physician noted the applicant reported that his bowel movements eventually
stabilized to three or four bowel movements per day in November 1997 and
that he has occasional bloating and gas, but recently started modest
exercise 1 or 2 days per week with no exacerbations secondary to the
exercise.  The physician indicated the applicant’s ulcerative colitis was
stable and improved over the past 5 or 6 months and that he had been off
all of his medication since November 1997.  The physician stated that if
this trend continued and the applicant was able to increase his exercise
tolerance it might be possible for him to return to active duty.

11.  A PEB convened on 13 May 1998 and concluded the applicant's condition
had improved since placement on the TDRL but that he remained unable to
return to duty as a Tanker.  The informal PEB recommended separation with
entitlement to severance pay and a disability rating of 10 percent. The
applicant non-concurred and submitted a written appeal.  He stated his
appeal was due to the reoccurrence of his ulcerative colitis.  He stated at
the time of the TDRL examination he was having slight complications but was
subsequently hit by a drunk driver and his ulcerative colitis came back
with bleeding and diarrhea.  He states he found out the medical insurance
of the man who hit him would not cover his ulcerative colitis because it
was a pre-existing condition and as such, was appealing the PEB decision
because he wanted a chance to recover first.

12.  An updated evaluation was conducted on 29 May 1998 noted that
secondary to the physical trauma of the applicant's motor vehicle accident
he noted increased frequency of his symptoms, including increased gas,
bloating, cramping, and a return of blood to the stools.  The physician
noted that secondary to the flare up of his symptoms in association with
the physical stress of his motor vehicle accident, his case was being sent
back for additional review by the PEB.  He was also placed on medication
again.  The second PEB concluded the applicant had generally improved since
placement on the TDRL but had a relapse in conjunction with an automobile
accident.  The PEB recommended retention on the TDRL.

13.  In April 1999 the applicant underwent another physical evaluation.
The evaluating physician noted the applicant had not had routine follow-ups
to appropriately manage his disease but indicated the applicant reported
often getting flare ups associated with rectal bleeding, and to having 10
diarrhea stools per day with abdominal cramping that often required him to
seek urgent medical care.  The physician indicated the applicant would be
put back on medication, his symptoms would improve, and then he (the
applicant) would discontinue medication.  Three to six months later he
would have another flare-up and the process would be repeated.  During that
evaluation the applicant reported he smoked less than a pack per day, but
made no mention of using chewing tobacco products.

14.  In an undated letter addressed "To Whom it May Concern" the applicant
expressed his dissatisfaction with the physician who conducted his April
1999 TDRL examination.  The applicant reported that before arriving at the
clinic for his examination he had a severe case of bloody diarrhea.  He
maintained the evaluating physician was unprofessional in his attitude
toward the applicant and clarified that his concern was taking too much
Prednisone and not the Asacol medication as the physician implied in his
summary.  He indicated in his letter that he still had frequent episodes of
ulcerative colitis and had been unable to get it fully into remission.

15.  On 26 June 1999 a PEB concluded the applicant's ulcerative colitis on
Asacol therapy with Prednisone for disease flares, which occur about every
six months, was sufficiently stable for final adjudication, but still
rendered the applicant unfit.  The PEB recommended the applicant be
permanently retired with a disability rating of 30 percent.  The applicant
was provided a copy of the PEB findings and recommendation but failed to
make an election within the prescribed time limits.  The findings and
recommendation of the PEB were approved and on 12 August 1999 the
applicant's name was removed from the TDRL and he was permanently retired.
16.  In April 2003 the applicant was provided a copy of a letter from a
physician in LaGrange, Kentucky who stated the applicant was presently
asymptomatic and denies any history of abdominal pain, vomiting,
hematemesis, melena or hematochezia.  The physician stated the applicant
developed ulcerative colitis in 1996 and it lasted until 1997.  He noted
the applicant was prescribed high doses of Prednisone and Asacol but
because he did not respond to medications he was terminated from the Army.
The physician states that after about 4 months the applicant stopped taking
all of his ulcerative colitis medications and all of a sudden his diarrhea
and rectal bleeding subsided completely and he became asymptomatic.  The
physician reported that his clinical impression was that of a normal
physical examination and no evidence of ulcerative colitis in the
applicant.

17.  A colonoscopy was preformed on 29 May 2003 with no evidence of
ulcerative colitis.

18.  Information contained on Medline Plus, an on-line informational
service of the United States National Library of Medicine and the National
Institute of Health, indicated the ulcerative colitis is a chronic episodic
inflammatory disease of the large intestine and rectum characterized by
bloody diarrhea.  The cause is unknown and may affect any age group,
although there are peaks at ages 15 to 30 and then again at ages 50 to 70.
The symptoms vary in severity and their onset may be gradual or sudden.
Attacks may be provoked by many factors, including respiratory infections
or stress.  The goal of treatment is to control the acute attacks, prevent
recurrent attacks, and promote healing of the colon.  The course of the
disease generally varies, with remissions and exacerbations over a period
of years.  A permanent and complete cure is unusual.

19.  The letter of recommendation, submitted by the applicant with his
request to this Board, was written by his unit commander on 3 March 1997,
prior to commencement of his disability processing.  The letter noted the
applicant was a "Soldier that I will regret losing to your organization."
The May 1997 performance evaluation report indicated the applicant was a
successful Soldier who had passed an Army physical fitness test in October
1996.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he raised the issue of his daily
tobacco use as a possibility for his ulcerative colitis is not supported by
the evidence of record.  The evidence notes, as part of his tuberculosis
surveillance he stated that his tobacco consumption included one can of
"dip" per day.  However, in his MEB proceedings he merely noted he was an
occasional smoker and used oral tobacco occasionally.  There is no medical
evidence supporting the applicant's contention that his tobacco use was the
cause of the medical condition which resulted in his retirement by reason
of physical disability.

2.  The evidence shows the applicant was a full participant in his
disability processing.  While his 2003 medical statements may conclude that
the applicant no longer has any of the symptoms associated with ulcerative
colitis, none of the statements indicate the applicant was not experiencing
the medical complications associated with that condition in 1997 when his
name was placed on the TDRL or in 1999 when he was retired as a result of
his disability.

3.  Additionally, it is noted that both 2003 statements reported the
applicant developed ulcerative colitis in 1996 and it lasted until 1997.
However, the medical evidence available to the Board, including statements
made by the applicant, indicates that as late as 1999 he reported to
medical personnel that he often had flare ups associated with rectal
bleeding, had 10 diarrhea stools per day with abdominal cramping, and often
then sought urgent medical care.

4.  Although the applicant may have recently been cleared by medical
personnel of symptoms associated with ulcerative colitis, it does not serve
as a basis to conclude that his 1997 placement on the TDRL and subsequent
1999 disability retirement was incorrect.  It was appropriate at the time
based on the medical evidence available during the period those decisions
were being made.  Additionally, the fact that he may now be precluded from
returning to military service or is unable to secure a waiver to enlist,
does not serve as justification to change a discharge which was appropriate
at the time.  Clearly the medical evidence, and the applicant's own input,
during his disability processing confirm that his initial placement on the
TDRL in 1997 and subsequent retirement by reason of physical disability in
1999 were appropriate.

5.  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.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 12 August 1999, the day he was
permanently retired by reason of physical disability; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
11 August 2002.  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 FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

_JS_____  __PM ___  __LO ___  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.




                                  _____   John Slone_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050002182                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051123                                |
|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.                      |                                        |


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