RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  96-01554
            INDEX CODE: 128.00

            COUNSEL:  NONE

            HEARING DESIRED: YES


_________________________________________________________________

APPLICANT REQUESTS THAT:

His active duty orders be extended and payment of medical bills.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The reasons the applicant believes the  records  to  be  in  error  or
unjust and the evidence submitted in  support  of  the  appeal  is  at
Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The relevant facts pertaining to this application, extracted from  the
applicant's military records, are contained in the letter prepared  by
the appropriate office of the Air Force.   Accordingly,  there  is  no
need to recite these facts in this Record of Proceedings.

_________________________________________________________________

AIR FORCE EVALUATION:

The Chief, Utilization, ANG/MPPU, reviewed the application and  states
that the applicant’s medical condition was not aggravated  by  the  30
day tour, acceptance of the Line of Duty, nor the TDRL as  claimed  by
the applicant.  DOD Directive 124.1 dated Dec  92,  came  into  effect
after the applicant’s accepted diagnosis of Dec 90.  The applicant  is
not eligible for orders without pay.  The applicant is eligible and is
receiving medical care at Walter Reed Army Medical Center and  Malcolm
Grow Medical Center.  He is entitled to all medical  benefits  granted
to all retired members.
The applicant’s claim for medical bills is not appropriate.  The  Blue
Cross Blue Shield bill submitted  is  for  service  in  1991  not  for
current service.  They recommend denial of relief.

A complete copy of the Air Force evaluation is attached at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the Air Force evaluation and states  that   the
aggravation of the prostate cancer is apparent from his being  put  on
active duty (AD) while he was on a status of  P4.   While  on  AD  the
prostate  cancer  went  undiagnosed  and  untreated  except  for  pain
medication which further aggravated the prostate cancer.  He  was  not
offered incapacitation pay until  October  1994.   Incapacitation  pay
should be offered only when extension of orders are refused.   He  was
asking for extension of orders in August of  1994,  according  to  DOD
directives.  He did not show loss of wages because at this time he was
using his sick days.  He lost his sick day lump sum payment because he
was forced to use them when his extension  of  orders  was  wrongfully
denied.  He was not diagnosed with the prostate  cancer  until  August
1994.  The prostate cancer was given 100% line of duty  disability  by
both the Air Force and the Veterans Administration.  He  appealed  the
100% TDRL because stage D2 prostate cancer is  incurable  and  is  not
temporary.  He was granted this.   Lt  Col  Dawson,  MD,  states  very
clearly that prostate cancer was misdiagnosed in his  active  duty  of
1993.  He is now in stage D3 prostate cancer with  no  treatment.   If
the prostate cancer was found in 1993 it would have been  found  at  a
lesser stage than D3 and he would not be at the last  stages  of  life
right now.  Letters from Dr. Bettencourt, Dr.  Ceplenski  and  the  VA
hospital doctors all agree that his AD in 1993 aggravated his cancer.

Applicant's  complete  response,  with  attachments,  is  attached  at
Exhibit D.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

The Chief, Utilization, ANG/MPPU, reviewed the application and  states
that for civilian workdays missed due  to  colon  or  prostate  cancer
prior to going on TDRL, it appears that the  applicant  used  employee
sick leave.  Presumably he would have elected incapacitation pay  over
sick leave  (which  apparently  he  could  have  cashed  in  with  his
employer) but for the delay in the Line
of Determination (LOD).  The applicant may have an equitable claim for
some days of incapacitation pay between the diagnose of  colon  cancer
in March 1992 and going on TDRL in February 1995.

Notwithstanding the late implementation of the policy in  DoDD  1241.1
by ANG in All States Message dated 2 May 1994, that guidance was  made
retroactive to such cases arising on or after  3 December  1992.   If,
prior to his release from active duty  on  16 December  1993,  it  was
known that the applicant had LOD prostate cancer,  he  clearly  should
have been extended on AD.  If it was known that he had prostate cancer
but only later that it was determined to be in  the  LOD,  they  would
conclude  that  he  was  retroactively  entitled  to  the  benefit  of
extension on AD.  However, at the time it was not even known  that  he
had prostate cancer.  In  their  opinion,  the  applicant’s  claim  to
extension on AD from 16 December 1993 would be premised on the concept
of failure to diagnose his prostate cancer.  The  applicant  would  be
Feresbarred from recovering on such a claim  under  the  Federal  Tort
Claims Act.

While it is probably within the powers of the AFBCMR to afford  relief
based on failure to diagnose, they believe that such  a  relief  might
establish a significant precedent and should be  carefully  evaluated.
Admittedly, the applicant is not seeking typical failure  to  diagnose
tort damages, but only an order to  AD,  and  in  his  application  he
indicates that such an order without pay would be OK.  It is not clear
how such an order would benefit him now or even at  the  time  of  his
AFBCMR application on 1 June 1996 (when he was on the  TDRL  and  four
months before he was disability  retired  with  100%  compensation  in
September  1996).   His  medical  expenses  would   be   entitled   to
reimbursement of his dependents’ medical expenses, because they  would
be entitled to military medical care while he is on  AD.   It  may  be
appropriate to coordinate the issue of relief in this  case  with  Air
Force claims authorities, in light of the numerous attempts in  recent
years to do away with the Feresbar, particularly in cases  of  medical
malpractice such as failure to diagnose.

In their opinion, the applicant’s eligibility for  benefits  based  on
prostate cancer commenced only on 22 August 1994, when bony metastases
and prostate cancer were diagnosed, and that the benefit he would have
been entitled to at that time was incapacitation pay.   Based  on  the
subsequent LOD findings, they believe  that  the  applicant  could  be
found entitled to incapacitation pay from 22 August  1994  (the  third
date specified in his AFBCMR application of 21 October 1994) until  he
went on the TDRL on 23 February 1995.  Also, based on  the  subsequent
LOD findings, he may have been entitled to incapacitation pay for  the
periods prior to 22 August 1994 when he was disabled by  colon  cancer
(e.g., when he had the rectal resection).

A complete copy of the Air Force evaluation is attached at Exhibit E.

_________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

On 25 September 1998, a copy of the Air Force evaluation was forwarded
to the applicant for review and response within 30 days.  As  of  this
date, no response has been received by this office.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.    The applicant has exhausted all remedies  provided  by  existing
law or regulations.

2.    The application was timely filed.

3.    Sufficient relevant evidence has been presented  to  demonstrate
the existence of probable error or injustice warranting incapacitation
pay for the period 1 March 1992 through  22 February  1995  due  to  a
diagnosis of colon cancer and prostate cancer.  The Air  Force  states
that for civilian workdays missed due  to  colon  or  prostate  cancer
prior to going on TDRL, it appears that the  applicant  used  employee
sick leave.  Presumably he would have elected incapacitation pay  over
sick leave but for the delay in the LOD.  The applicant  may  have  an
equitable claim for  some  days  of  incapacitation  pay  between  the
diagnosis of colon cancer in March 1992  and  going  on  the  TDRL  in
February 1995.  The Air Force also states that in their  opinion,  the
applicant’s  eligibility  for  benefits  based  on   prostate   cancer
commenced only on 22 August 1994, when bony  metastases  and  prostate
cancer were diagnosed, and the benefit he would have been entitled  to
at that time was incapacitation pay.   Based  on  the  subsequent  LOD
findings, they believe that the applicant could be found  entitled  to
incapacitation pay from 22 August 1994 (the third  date  specified  in
his AFBCMR application of 21 October 1994) until he went on  the  TDRL
on 23 February 1995. Also, based on the subsequent  LOD  findings,  he
may have been entitled to incapacitation pay for the periods prior  to
22 August 1994 when he was disabled by colon cancer (e.g., when he had
the  rectal  resection).   Therefore,  we  recommend  his  record   be
corrected to the extent indicated below.

4.    Insufficient relevant evidence has been presented to demonstrate
the existence of probable error or injustice warranting  an  extension
of active duty orders or payment of his medical bills.  In  regard  to
his request for active duty orders, we are not  sure  how  this  would
benefit the applicant or to what purpose this  would  serve  him.   In
regard to his medical bills, the Air Force states he may  be  entitled
to reimbursement of his dependents’ medical expenses and should pursue
the issue of relief with the Air Force claims authorities.  In  regard
to his medical  bills,  the  applicant  is  entitled  to  all  medical
benefits granted to all  retired  members.   He  is  eligible  and  is
receiving medical care at Walter Reed Army Medical Center and  Malcolm
Grow Medical Center.  In view of the above,  and  in  the  absence  of
evidence to the contrary, we find no basis  upon  which  to  recommend
favorable action on this portion of his application.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating to APPLICANT, be corrected to show that  competent  authority
determined that he was entitled to incapacitation pay for the period 1
March 1992 through 22 February 1995, due to colon cancer and  prostate
cancer and that he is entitled to all incapacitation pay and  benefits
IAW applicable laws.

_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 11 May 1999, under the provisions of AFI 36-2603:

             Ms. Charlene M. Bradley, Panel Chair
             Mr. Edward C. Koenig, III, Member
             Mr. Michael V. Barbino, Member

All members  voted  to  correct  the  records,  as  recommended.   The
following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 1 Jun 96, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, ANG/MPPU, dated 11 Mar 97.
   Exhibit D.  Applicant’s Response, dated 10 Apr 97, w/atchs.
   Exhibit E.  Letter, ANG/MPPU, dated 21 Sep 98.
   Exhibit F.  Letters, AFBCMR, dated 7 Apr 97 and 25 Sep 98.





                                   CHARLENE M. BRADLEY
                                   Panel Chair



AFBCMR 96-01554




MEMORANDUM FOR THE CHIEF OF STAFF

      Having received and considered the recommendation of the Air
Force Board for Correction of Military Records and under the authority
of Section 1552, Title 10, United States Code (70A Stat 116), it is
directed that:

      The pertinent military records of the Department of the Air
Force relating to APPLICANT, be corrected to show that competent
authority determined that he was entitled to incapacitation pay for
the period 1 March 1992 through 22 February 1995, due to colon cancer
and prostate cancer and that he is entitled to all incapacitation pay
and benefits IAW applicable laws.




            JOE G. LINEBERGER
            Director
            Air Force Review Boards Agency