MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 12 March 2002
         DOCKET NUMBER: AR2001056299

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Robert J. McGowan		Analyst

The following members, a quorum, were present:

Ms. Irene N. Wheelwright		Chairperson
Mr. Raymond J. Wagner		Member
Ms. Gail J. Wire		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: That a line of duty determination be changed from "NOT IN LINE OF DUTY-NOT DUE TO OWN MISCONDUCT-EPTS-NO AGGRAVATION" to "IN LINE OF DUTY-EPTS [Existed Prior to Service]-AGGRAVATION."

APPLICANT STATES: That he is a soldier in the North Carolina Army National Guard (NCARNG). On 8 May 1999, he was on active duty for annual training when he hurt himself lifting an M109 Howitzer ballistic shield weighing approximately 150 pounds. On 11 May 1999, he was admitted to Womack Army Hospital, Fort Bragg, North Carolina, diagnosed with perforated diverticulitis, and underwent corrective surgery. A DD Form 261 (Line of Duty Investigation) was completed that determined the applicant's perforated diverticulitis occurred "IN THE LINE OF DUTY-EPTS-AGGRAVATION." When the DD Form 261 was reviewed at Headquarters, National Guard Bureau (NGB), the determination was disapproved and changed to "NOT IN THE LINE OF DUTY-NOT DUE TO OWN MISCONDUCT-EPTS-NO AGGRAVATION."

COUNSEL CONTENDS: That the decision by the NGB to change the line of duty determination was an abuse of discretion and unsupported by lay and medical evidence. He adds that the applicant had previously been diagnosed with a condition known as diverticulosis that was resolved by dietary modification; the applicant never had diverticulitis. When he reported for active duty on 8 May 1999, he was asymptomatic and had no complications from his previous bout of diverticulosis. Medical literature confirms that diverticulitis is caused by high internal pressure within the sigmoid colon and that perforation can result; however, any activity which increases that pressure (e.g., lifting heavy weight, straining during a bowel movement, etc.) contributes to, and aggravates the potential for the onset of diverticulitis.

EVIDENCE OF RECORD: The applicant's military records show:

He is a sergeant first class (SFC/E-7) in the NCARNG serving in military occupational specialty (MOS) 63D40, Self-Propelled Field Artillery Systems Repairer. During the period 8-22 May 1999, he was on active duty undergoing annual training at Fort Bragg. On 8 May 1999, he lifted the ballistic shield for an M109A5 Howitzer. In so doing, he hurt his stomach and felt immediate pain in his abdominal area. He reported to unit medics who treated him for muscle strain. The situation worsened and, on 11 May 1999, he was taken to Womack Army Hospital where he was diagnosed with perforated diverticulitis and underwent emergency corrective surgery.

A line of duty investigation was conducted on 4 June 1999 and determined that the applicant injured himself while lifting the heavy ballistic shield. Because he had previously suffered from diverticulitis, the condition was termed EPTS, but aggravated by his military duties. The final determination was "IN THE LINE OF DUTY-EPTS-AGGRAVATION."

The line of duty investigation was forwarded to Headquarters, National Guard Bureau, Washington, DC. Following a review of the facts and circumstances, the final determination was disapproved and changed to "NOT IN THE LINE OF DUTY-NOT DUE TO OWN MISCONDUCT-EPTS-NO AGGRAVATION."

In the processing of this case, an advisory opinion was obtained from the NGB Surgeon's Office. It opined that the "physics of [applicant's] illness preclude a finding in favor of the soldier because the perforations in the colon come from within (intraluminary pressure), and not from external pressure [the lifting of a heavy object]. . . . [Such] perforations can occur anywhere and anytime . . . ." The applicant was provided a copy of the NGB's advisory opinion for his review and response/rebuttal. The applicant's physician provided a statement saying that the applicant was never previously diagnosed with diverticulitis, but was treated for diverticulosis. He added that the specific event that caused the perforation was the applicant's episode of straining lifting the ballistic shield.

Army Regulation 600-8-1, Army Casualty and Memorial Affairs and Line of Duty Investigations (18 September 1986), prescribes policy, responsibility, and procedures for casualty reporting and notification, casualty assistance, the mortuary affairs program, and line of duty investigations. It states, in pertinent part, line of duty (LD) determinations are essential for protecting the interest of both the individual concerned and the U.S. Government, where service is interrupted by injury, disease or death. A person who becomes a casualty because of his or her intentional misconduct or willful negligence can never be said to be injured, diseased or deceased in the line of duty. Such persons stand to lose substantial benefits as a consequence of their actions; therefore, it is critical that the decision to categorize injury, disease, or death as not in the line of duty only be made after the deliberated and ordered procedures are followed. Line of duty determinations are presumed to be "LINE OF DUTY-YES" without investigation except when US Army Reserve or ARNG soldiers serving on active duty for 30 days or less are disabled due to disease. In these cases, it must be determined whether the disease existed prior to service and was aggravated by service.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1. 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 submit evidence that would satisfy this requirement.
2. The applicant reported for a period of active duty from 8-22 May 1999. On 8 May 1999, he was lifting a 150 lb. ballistic shield when he felt a burning pain that he attributed to a pulled muscle. On 11 May 1999, he was admitted to the Army hospital at Fort Bragg suffering from a perforated diverticulitis. He underwent corrective surgery.

3. Per regulation, a line of duty investigation was conducted. The investigating officer found that the applicant, while on active duty, "aggravated an already existing illness/injury." It was therefore determined to be "IN THE LINE OF DUTY-EPTS-AGGRAVATION." The completed line of duty determination was forwarded to Headquarters, NGB. There the determination was changed to "NOT IN THE LINE OF DUTY-NOT DUE TO OWN MISCONDUCT-EPTS-NO AGGRAVATION."

4. In an advisory opinion to this Board, the NGB reasoned that the applicant's diverticulitis perforated as a result of the normal progression of the disease and that the perforation would have occurred from internal pressure in the colon irrespective of what the applicant was doing at the time. In a rebuttal, the applicant’s personal physician agreed with the NGB advisory to a point, but added that the applicant was never previously diagnosed with diverticulitis and that, although the perforation was ultimately caused by intraluminary pressure, the act of straining to lift the heavy ballistic shield aggravated the condition.

5. Diverticula are small pouches in the colon that bulge outward. When a patient has diverticula, the condition is called diverticulosis. When diverticula become infected or inflamed, the condition is called diverticulitis. If an inflamed diverticulum becomes abcessed, it may perforate necessitating an operation to resect the affected part of the colon. The etiology of diverticular disease involves two basic mechanisms: raised intraluminal pressure and weakness of the colonic wall. The progression of diverticular disease can be divided into three phases. The first or prediverticular phase consists of marked thickening of the muscular layers of the colon wall. The second phase (diverticulosis) is characterized by diverticula. The third phase (diverticulitis) occurs if and when a diverticulum perforates.

6. The applicant was suffering from diverticular disease and had been treated by his personal physician for diverticulosis. His disease naturally progressed to the final stage, a perforated diverticulum [perforated diverticulitis], while he was on active duty, and he underwent emergency surgery. This was the natural progression of a pre-existing (EPTS) medical condition. The perforation happened as a result of increased intraluminary pressure in the applicant’s colon and would have occurred regardless of any external straining, such as lifting a heavy object.

7. The opinion of the NGB Surgeon’s Office that the line of duty investigation was appropriately changed to "NOT IN LINE OF DUTY-NOT DUE TO OWN MISCONDUCT-EPTS-NO AGGRAVATION" is accepted as correct by this Board.

8. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

_INW___ __GJW__ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

________ ________ __RJW___ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2001056299
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020312
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY	DIRECTOR
ISSUES 1.
2.
3.
4.
5.
6.