IN THE CASE OF:
BOARD DATE: 6 August 2015
DOCKET NUMBER: AR20140015631
THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:
1. Application for correction of military records (with supporting documents provided, if any).
2. Military Personnel Records and advisory opinions (if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests, in effect, correction of her records to show she received a medical retirement.
2. The applicant states:
a. she experienced many stomach problems during her military career. As a result of these problems, she believes it developed into her gastric/stomach cancer. As a result of this diagnosis, her stomach had to be removed.
b. her medical condition has mobilized her to live a very limited lifestyle not being able to go out to restaurants or other gatherings with family and friends.
3. The applicant provides numerous medical documents.
CONSIDERATION OF EVIDENCE:
1. 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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant enlisted in the Regular Army on 8 September 1983 for a period of three years. She completed the required training and was awarded military occupational specialty 76P (Material Control and Accounting Specialist). She served in Germany from 10 January 1984 to 30 May 1985.
3. The applicant was honorably released from active duty on 9 July 1986 under the provisions of Army Regulation 635-200, chapter 4 at her expiration term of service. On the following day, she was transferred to the U.S. Army Reserve Control Group (Reinforcement). She had completed 2 years, 10 months, and 2 days of active military service.
4. Orders D-09-075752 published on 5 September 1989 show she was discharged from the U.S. Army Reserve.
5. The applicant provided the following military and civilian medical documents retrieved from the Department of Veterans Affairs (VA) which show:
a. A Standard Form (SF) 600 (Chronological Record of Medical Care) shows she was treated at the U.S. Army Health Clinic in Germany on 1 March 1984 for headache pain and pains in her stomach. The attending physician stated the applicant had burning sensation in her stomach.
b. An SF 600 shows she was treated at the U.S. Army Health Clinic in Germany on 9 April 1984 for lower back pain and leg cramps. The attending physician noted the applicant hurt her back while digging a foxhole and that her stomach was still hurting and swollen.
c. An SF Form 600 shows she was treated at U.S. Army Health Clinic, Selfridge Air National Guard Base (ANGB), MI on 5 November 1985 for follow-up on stomach pains.
d. A Comprehensive Gynecological History Physical, dated 3 February 1987, shows she was evaluated for complaints of irregular periods associated with cramps and backache sustained since she had her baby.
e. A medical report from the Capital City Obstetrics and Gynecology (OB/GYN) Associates, Physical Assistant (PA), dated 20 January 1994, shows she had a hysterectomy in May 1992. This report shows history of present illness of complaints of lower abdomen cramping pains, some incisional scar swelling, and left breast swelling (unpredictable occurrences).
f. A Capital City OB-GYN Associates, PA, medical report dated 18 January 1995, shows her chief complaint was pain in the right side of her abdomen. She was diagnosed as having right multi-cystic mass.
g. An OB/GYN Medical Report dated 23 June 2003, shows she complained of right pelvic pain and lower back pain (2 days).
h. A Radiology Department, Lexington Medical Center, West Columbia, SC medical report, dated 20 April 2005, shows she was examined for abdominal pain.
i. A Radiology Department, Lexington Medical Center medical report dated 22 April 2005, shows she was examined for right upper quadrant abdominal pain, nausea, and gastric mass with vomiting. The examining physician performed a CT [computerized tomography] scan of her abdomen, but there was no abdominal mass, lymphadenopathy or inflammatory process seen.
j. A Radiology Department, Lexington Medical Center medical report dated 15 May 2005, shows she had a subtotal gastrectomy on 10 May 2005.
k. Medical documents dated April 2006 through November 2011 show a history of treatment for stomach cancer.
6. Her service record is void of evidence which indicates she incurred any medical conditions that required processing through the physical disability evaluation system while she was on active duty.
7. Title 10, U.S. Code, chapter 61, provides for disability retirement or separation for a member who is physically unfit to perform the duties of his or her office, rank, grade, or rating because of a disability incurred while entitled to basic pay.
8. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of a physical disability. The regulation provides that military treatment facility (MTF) will provide a thorough and prompt evaluation when a Soldier's condition becomes questionable in respect to their physical ability to perform duty. Unit commanders will ensure that any physical defects impacting on a Soldier's performance of duty are reflected in the Soldier's evaluation report and refer the Soldier to the servicing MTF for medical evaluation when the Soldier is believed to be unable to perform the duties of his or her office, grade, rank, or rating. It also states that the MTF commander having primary medical care responsibility will conduct an examination of the Soldier referred for evaluation. If it appears that the Soldier is not medically qualified to perform duty, the MTF commander will refer the Soldier to a medical evaluation board (MEB). The MEB will recommend referral to a physical evaluation board (PEB) those Soldiers who do not meet medical retention standards. The PEB in turn determines fitness for duty or accesses a disability rating for each medical condition that is found unfitting. If the combined total of a disability rating is 30 percent or greater, then a determination is made by the PEB for placement on the temporary disability retired list.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention that she experienced many stomach problems during her military career is acknowledged.
2. The evidence of record shows the applicant served in the Regular Army from 8 September 1983 through 9 July 1986.
3. The applicant provided medical documents which show she began to experience stomach and lower back pain in 1984 while she was on active duty. By November 1985, she had follow-up appointments for stomach pains. Her service record shows she continued to serve on active duty until she was discharged on 9 July 1986.
4. The applicant provided post-service clinical treatment records from civilian medical personnel which show she was treated for abdominal pain. Her civilian medical records show she was diagnosed with stomach cancer in 2005 some 19 years after her separation.
5. The applicant's service record is void of any medical documentation or other evidence that indicates any medical conditions were incurred while she was entitled to receive basic pay which was so severe as to render the applicant medically unfit for retention on active duty.
6. The applicant's continued performance of assigned duties supports a presumption of fitness which she has not overcome by evidence of any unfitting, acute, grave illness or injury related to her service that prevented her from performing her duties through her separation in 1986. As such, there was no reason for medical personnel or her unit commander to recommend her for physical disability evaluation processing. The available records do not show evidence of error in this case. Therefore, there is no basis for granting the requested relief.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
____X____ ____X____ ____X____ 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.
_______ _ _X______ ___
CHAIRPERSON
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont) AR20140015631
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