MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 08 MAY 2003
         DOCKET NUMBER: AR2002075973

         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
Ms. Deborah L. Brantley		Senior Analyst

The following members, a quorum, were present:

Mr. Samuel A. Crumpler		Chairperson
Mr. Mark D. Manning		Member
Mr. Robert L. Duecaster		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: In a 3 September 2002 letter to a member of the Army Review Boards Agency, that she is seeking reimbursement for medical expenses which occurred while she was on active duty, and to have her cervical cancer declared service connected in order to obtain benefits and reimbursement for costs associated with that condition.

APPLICANT STATES: That her illness occurred while she was on ADSW (active duty for special works) and as such was “100% covered by the DEERS program.” She states that at the time “Army medical facilities were not reasonably close enough to provide treatment” and that she could not obtain treatment from the Department of Veterans Affairs (VA) because she was “not service connected at that time.”

In a lengthy, self-authored statement, included with her application, the applicant also relates that her rights under Title 10 United States Code and Army Regulation 600-8-1 were withheld “following a protected communication.” She mentions protection under the Whistleblower Act. She states that while performing duties at Soto Cono, Air Force Base in Honduras, she became ill and was diagnosed with Pelvic Inflammatory Disease (PID) and subsequently sought treatment from her civilian health care provider upon her return home. She notes that in spite of informing her commander, in December 1992, that she had been diagnosed with cervical cancer, her unit failed to complete a line of duty investigation.

The applicant also relates problems she had with members of her chain of command after she informed her unit commander, in May 1993, that she needed to return home, from the unit’s deployment to Italy, as soon as possible to undergo surgery for her cancer. She details the difficulties she had with a change of command inventory, falsified weight control documents, unnecessary training, the fact that her commander ignored her, and that when she voiced a complaint of sexual harassment, her commander told her “they were just being friendly.”

In March 1994, following her displeasure with the inability of her unit to address her concerns, the applicant indicates that she had a “protected conversation” with a member of the North Carolina Inspector General’s office. She maintains that had she not had that “protected conversation” she would not have received a counseling statement in May 1994, or a referred OER (officer evaluation report) in July 1994.

The applicant states that attempts to formalize her complaints with various agencies, including the Army Board for Correction of Military Records, were denied “due to the statue of limitation law.”

The applicant notes that in January 1997 she received a letter from “Jesse Brown, Secretary of Veterans Affairs” regarding sexual assault and harassment. She states that following receipt of that letter she elected to “pursue this path as a means of resolution.” She notes that she has been successful in receiving service-connected disability from the VA for her PTSD (posttraumatic stress disorder) and her Irritable Bowel Syndrome. She states, however, that she has been “unsuccessful in receiving service connection for cervical cancer as well as medical reimbursement for [her] expenses that [she] incurred while [she] was on Active Duty.”

In support of the applicant’s petitions she submits four bound color volumes. The light blue volume provides copies of medical bills and medical treatment documents occurring between 1992 and 1998, the navy blue volume contains documents associated with her attempts to secure reimbursement for medical expenses while on active duty, the black volume contains documents associated with her 1994 referred OER, and the red volume contains documents submitted in February 1997 to The Honorable Senator Jesse Helms regarding errors in the applicant’s 1996 separation document from the Army National Guard and issues she had with the conduct of members of her National Guard organization.

Information contained in files maintained by the Army Review Boards Agency indicates that the Board received part of this same application, including the Department of Defense Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552) and her self-authored statement (both of which are dated 14 March 2002), on 21 March 2002. However, the application was closed administratively on 29 April 2002 when the applicant was informed that the Board could not award damages and that she was outside the required window for “whistle blower” status. Attempts to locate a copy of the letter administratively closing the applicant’s March 2002 submission were not successful.

However, in September 2002 the applicant resubmitted her March 2002 application and indicated that she was enclosing “another set of significant documents that relate to [her] case” along with copies of her private civilian medical records and billing statements, documents associated with her VA rating decision and “an additional copy of the DD Form 149 [she] submitted on June 27, 2002.” Those documents were all received by the Army Review Boards Agency on 6 September 2002. Although the documents provided to the Board in support of the applicant’s petition address a myriad of issues, the Board will limit its discussion in these proceedings to the two issues raised in her September 2002 letter to the Board.




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

She enlisted in the North Carolina Army National Guard on 21 April 1988 and on 24 August 1988 enrolled in the ROTC (Reserve Officer Training Corps) advanced course at Appalachian State University in Boone, North Carolina.

The applicant was commissioned as a United States Army Reserve second lieutenant on 20 May 1990 and on 21 May 1990 accepted an appointment in the Army National Guard.

The applicant’s file indicates that she attending the Military Police Officer Basic Course at Fort McClellan, Alabama, in an active duty status, between 14 July 1990 and 31 October 1990. Upon completion of her training she returned to her Army National Guard organization in Raleigh, North Carolina.

Documents included with the applicant’s submission to this Board indicate that between January 1991 and December 1994 she performed a variety of duties in an active capacity as part annual training (AT), active duty for training (ADT), and active duty for special work (ADSW). She had extended periods of active duty between October and December 1991 while assisting the North Carolina Inspector General and as part of a joint task force planning group in Raleigh, in January 1992 while deployed to Honduras, and between September 1992 and January 1993 in Raleigh, North Carolina as part of a military support operation.

Her documents also note that she was deployed to Panama for 4 days in April 1991, attended the Public Affairs Officer Course at Fort Benjamin Harrison, Indiana for two weeks in July 1991, performed annual training for the month of August 1992 as part of a special project at Fort McPherson, Georgia, and at Fort Bragg, North Carolina for two weeks in March 1994. The applicant also had several single days of annual training during 1991, 1993, and 1994.

Medical documents and billing statements, submitted by the applicant, indicate that between 1991 and 1994 she was seen by civilian health care professionals on 39 different occasions. However, it appears, only 5 of those visits (18 and
23 November 1991; 2,14, and 30 December 1991) coincided with days she was also in an active duty status. All of the civilian health care providers appear to have been located in Raleigh, North Carolina.

A 3 June 2002 letter from the Office of the Assistant Secretary of Defense for Health Affairs, addressed to the applicant, indicates that she was being provided “ten different payments totaling $1,349.50” as reimbursement for medical attention she received between August 1990 and February 1993. The letter informed the applicant that reimbursement for medical expense “claims outside of the above date range” could not be paid because the applicant did “not show any TRICARE entitlements outside of this period.” The specific medical costs, which were reimbursed by military funds is not specified in the documents available to the Board.

The applicant was deployed to Honduras in January 1992. According to a medical treatment form, provided by the applicant, she was diagnosed and treated for “pelvic inflammatory disease” on 28 May 1992.

In July 1992 she had an abnormal pap smear which showed “atypical but no evidence of malignancy.” She was not on active duty when this abnormal pap smear occurred.

On 18 and 23 November 1992, and again on 2 December 1992 her civilian health care providers saw the applicant. She was on active duty each of those days. The 18 November medical visit was for blood tests as the applicant reported decreased energy. The 23 November 1992 visit was for a complaint of bronchitis and sinusitis. The 2 December 1992 visit was a follow-up visit for the July 1992 abnormal pap smear.

On 14 December 1992, while the applicant was still on active duty, she underwent additional tests associated with her abnormal pap smears. The lab results from her 14 December 1992 visit showed “slight to moderate nonkeratinizing dysphasia with condylomatous atypia.” Her 30 December 1992 medical visit, while she was on active duty, showed a normal pelvic ultra sound.

The applicant was deployed to Italy between 5 and 19 June 1993, in accordance with her deployment orders. She underwent a laser vaporization of her cervix procedure on 24 June 1993. She was not on active duty at the time of the procedure.

The applicant commenced a series of therapy appointments in June 1993. During the initial therapy visit on 30 June 1993 the applicant indicated that she “recently had a Class III pap smear [6 December 1992] and also learned that she had HPV [human papillomavirus].” She indicated that she “realized that she needed to talk with someone about her feelings about this, as well as many other issues.” The applicant was not on active duty when she commenced these therapy sessions.

One of her sessions, on 30 September 1993, may have occurred on a day when the applicant was in an active duty status. However, her orders indicate that she was in Asheville, NC on 30 September and 1 October 1993 for a change of command inventory, although her therapy sessions were being conducted Raleigh.

On 22 November 1993 the applicant reported in her therapy session that she “was relieved to get her test results which showed no evidence of cancer.” She was not on active duty on this day.

In April 1995 the applicant was transferred to the Inactive National Guard and on 1 April 1996 she was released from the Inactive National Guard and transferred to the United States Army Reserve Control Group (Reinforcement).

In January 1997 the then Secretary of Veterans Affairs, the Honorable Jesse Brown, sent a letter to all women veterans urging them to contact their local Department of Veterans Affairs if they were victims of sexual assault or harassment while in the military. The letter stated, “we know that a number of women veterans experienced sexual trauma while serving on active military duty” and that the “VA can help you regain your confidence, self-esteem and quality of life.” It noted that the women veterans “may be entitled to VA disability compensation for disabilities or injuries resulting from sexual trauma” and that one may be “eligible even if you did not report the incident when it occurred or at any time during active duty.”

In June 1999, following a decision by the Board of Veterans Appeals after the applicant’s testimony, the applicant was granted a 30 percent disability rating by the Department of Veterans Affairs for posttraumatic stress disorder “due to sexual assault trauma.” The compensation was retroactive to 1 March 1997. In November 2000 the rating was increased to 50 percent and in September 2001 to 70 percent.

In December 2001 her request for service-connected disability for her sexually transmitted disease (HPV) was denied. In July 2002 her request for service-connected disability for cervical cancer was also denied.

According to information from the American Cancer Society, the most important risk factor for cervical cancer is infection with HPV.

In April 2000 the North Carolina National Guard Inspector General noted that a medical consultation, conducted as part of their investigation into linking the applicant’s PID to her cervical cancer, revealed that “although some infectious organisms in the female reproductive system can predispose the individual to later development of cervical cancer, those most likely to cause PID do not fall into this group.”

Army Regulation 635-40 states that in order for soldiers of the Reserve Component to be compensated for disabilities incurred while performing duty for 30 days or less, there must be a determination by the Physical Evaluation Board that the unfitting condition was the proximate result of performing duty. This is different from a Line of Duty determination, which establishes whether the soldier was in a duty status at the time the disability was incurred and whether misconduct or gross negligence was involved. Proximate result establishes a causal relationship between the disability and the required military duty.
Army Regulation 600-8-1 states that Line of Duty investigations are conducted essentially to arrive at a determination as to whether misconduct or negligence was involved in the disease, injury, or death and, if so, to what degree. When a Reserve Component soldier on an active duty tour of 30 days or less is disabled due to disease, a formal line of duty investigation is required. In determining whether a veteran is eligible for certain benefits administered by the Department of Veterans Affairs, that department makes it own determination with regard to line of duty.

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

1. The evidence appears to indicate that the applicant has been compensated for medical expenses, which she incurred while in an active duty status. Disputes over the amounts of payment, and the date of entitlement are better determined between the applicant and the Department of Defense Health Affairs office and not by the Army Board for Correction of Military Records. The applicant need only provide copies of orders and medically incurred expenses, which occurred simultaneously in order for the Department of Defense Health Affairs office to adjudicate entitlement to any additional reimbursement.

2. The applicant’s contention that her cervical cancer was incurred during, or as a result of her military service, is without foundation. The applicant’s first abnormal pap smear, based on documents available to the Board, occurred in July 1992, several months after her deployment to Honduras. The Board notes that the applicant has made no medical connection between her deployment in Honduras and her subsequent abnormal pap smears. While she maintains that her PID contributed to her cervical cancer, medical information available to the Board indicates that was unlikely. However, medical evidence does suggest that her HPV could well have contributed to cancer occurrence.

3. Additionally, the applicant’s contention that her unit was obligated to complete a line of duty investigation and failed do to so, is also without foundation. There is no evidence the applicant was ever “disabled” or unable to perform her military duties as a result of any of her medical conditions and as such, there would not have been any reason to conduct a line of duty determination. The Board also notes, that the Department of Veterans Affairs can make its own determination in deciding entitlement to benefits. The Board finds no evidence which would enable the Board to conclude that the applicant’s cervical cancer was incurred as a result of her military duties and therefore no basis to correct her service medical records to show that it was “service connected” in order for her to receive compensation or treatment from the Department of Veterans Affairs.

4. 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 that requirement.

5. 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:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__SAC__ __MDM__ __RLD __ DENY APPLICATION

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

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INDEX

CASE ID	AR2002075973
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20030508
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.