PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:           22 October 2002                      
	DOCKET NUMBER:   AR2002076842

	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. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Ms. Shirley L. Powell		Member	
	Mr. Elzey J. Arledge, Jr.		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)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests reconsideration of his previous application to correct his military records by showing he was placed on the retired list due to physical disability or, in the alternative, to have his records corrected to show that he was placed on the Temporary Disability Retired List (TDRL).

3.  The applicant submits a letter dated 2 August 2002.  In that letter he contends that it is physically impossible to grow a brain tumor the size of a naval orange in the 30 hours he had been out of the Army.  He implies that the Army should take responsibility for his brain tumor since it had to have its inception while he was on active duty.  He outlines the hardships he has experienced because of his brain tumor, including the possibility of both he and his parents declaring bankruptcy due to the over $200,000.00 medical bill he incurred to have the tumor removed.

4.  The Memorandum of Consideration (MOC) of the Board’s 25 July 2002 review of the case (AR2002075698) is incorporated herein by reference as if wholly set forth.

5.  The applicant’s submission is new argument that requires Board consideration.

6.  Army Regulation 635-40, paragraph 3-7, Retaining soldiers on active duty after scheduled non-disability retirement or discharge date, states that a soldier whose normal scheduled date of non-disability retirement or separation occurs during the course of hospitalization or disability evaluation may, with his or her consent, be retained in the service until he or she has attained maximum hospitalization benefits and completion of disability evaluation if otherwise eligible for referral into the disability system.

7.  Army Regulation 600-8-1, paragraph 41-8 states, that the term Existing Prior to Service (EPTS) is added to a medical diagnosis when there is substantial evidence that the disease or injury, or underlying condition, existed before military service, or it happened between periods of active service.  Included in this category are chronic diseases with an incubation period that clearly precludes a finding that it started during short tours of authorized training or duty.  If an EPTS condition was aggravated by military service, the finding will be in line of duty.  If an EPTS condition is not aggravated by military service, the finding will be not in line of duty, not due to own misconduct, EPTS.  Specific findings of natural progress of the pre-existing injury or disease based on well established medical principles alone are enough to overcome the presumption of service aggravation.  A member of the Army is presumed to have been in sound physical and mental condition on entering active service or authorized training.  To overcome this, it must be shown by substantial evidence that the injury or disease, or condition causing it, was sustained or contracted while neither on active duty nor in authorized training.

8.  Army Regulation 40-3, Medical, Dental, and Veterinary Care, paragraph 
15-1a, provides for civilian medical care for members of the Army when authorized by the Army Medical Treatment Facility with geographic responsibility for the soldier.

CONCLUSIONS:

1.  The Board accepts that the applicant's brain tumor had its inception while he was on active duty.  If he had been diagnosed as having a brain tumor of that size 30 hours after he had entered active duty, the tumor would be considered EPTS.  As such, it is only fair and equitable to apply EPTS standards to personnel who are recently separated from active duty.

2.  If the applicant had been diagnosed as having the brain tumor while he was still on active duty, he would have been given the option to remain on active duty in accordance with Army Regulation 635-40.  There is no question that the applicant would have availed himself of that option if he had been given the opportunity.

3.  It is not fair or equitable to impoverish the applicant and his parents for a medical condition which was incurred in line of duty.  Since the applicant was physically fit at the time of his separation, as noted in the Board's prior consideration, the only reasonable remedy would be to correct the applicant's records to show that his tumor was detected while he was still on active duty, show that he was offered and elected to be retained on active duty, void his discharge, show that he has been retained on active duty, pay him back pay and allowances from the date of his separation, and pay his medical bills in accordance with applicable Army regulations pertaining to the civilian hospitalization of active duty personnel.

4.  In view of the foregoing findings and conclusions, correcting the applicant’s records as recommended below would rectify an injustice.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by:

	a.  showing that the individual concerned was diagnosed as having a brain tumor prior to the expiration of his term of service;

	b.  showing that he was offered and accepted retention on active duty until he attained maximum hospitalization benefits and completion of disability evaluation if otherwise eligible for referral into the disability system;

c.  showing that the action separating him from active duty on 6 June 2002 is void and of no force or effect;

d.  showing that he has remained on active duty continuously without any breaks in active service;

e.  paying to him his military pay and allowances as a result of this correction;

f.  paying his medical bills in accordance with Army Regulation 40-3, paragraph 15-1a;

g.  immediately issuing orders assigning him to the appropriate command or facility for medical evaluation to determine whether his current medical condition would warrant medically boarding him; and

h.  medically boarding him or terminating the extension on active duty this correction has provided, as appropriate.

BOARD VOTE:

__eja___  ___slp___  ___fne___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_________Fred N. Eichorn___
		        CHAIRPERSON

INDEX

CASE ID	AR2002076842	
SUFFIX		
RECON		
DATE BOARDED	20021022	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	108.00	
2.		
3.		
4.		
5.		
6.