RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          18 May 2004
      DOCKET NUMBER:   AR2003091357


      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. Raymond J. Wagner             |     |Chairperson          |
|     |Mr. Roger W. Able                 |     |Member               |
|     |Mr. John Denning                  |     |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).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his Line Of Duty Investigation (LODI) be
corrected from not in line of duty, not due to own misconduct (NLD-NDOM) to
in line of duty (ILD).

2.  The applicant states that his LODI was conducted by the improper
command; the LODI was conducted by an ineligible officer; the LODI officer
that replaced the ineligible officer was not furnished all the pertinent
material and information, including two sworn statements certifying that he
did not have a lesion when he entered on active duty; he was not provided
follow-up medical care for his medical condition; he was not given
incapacitation pay or reimbursement for the expenses he incurred to obtain
his medical treatment; and his command took well over the maximum allowable
time to conduct a LODI.

3.  The applicant continues that he was told by the Army medical community
that his cancerous lesion was caused by overexposure to the sun some 15 to
20 years ago.  The applicant says while that may be true, he was not
afforded the disability benefits that are required to be afforded
reservists serving over 30 days of active duty.  In addition, he believes
that his condition is related to his Agent Orange exposure when he served
in Vietnam.  He adds that in his numerous attempts to get the Army to do
what is right, not one person has told him that he was wrong, because he
contends that he is not wrong.  He re-emphasizes this point repeatedly
throughout his application.  He concludes that he has sworn statements
attesting that he did not have a lesion on his leg when he entered active
duty, he was discovered to have cancer while he was on active duty, the
cancer was left untreated for 5 months, and he was not given follow-up
medical care.

4.  The applicant provides seven attachments to his DD Form 149, which he
has listed in his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Air Force on 1 August 1969,
served in Vietnam, was promoted to pay grade E-4, and was honorably
discharged on 20 July 1972.

2.  He had a break in service until his enlistment in the Army National
Guard (ARNG) on 7 August 1980.  He was promoted to pay grade E-5 and was
discharged on 6 August 1982.

3.  He enlisted in the US Army Reserve (USAR) on 16 September 1982 and was
promoted to pay grade E-8.

4.  On 10 May 1999, the applicant commenced a 102 day tour of active duty
for training (ADT).

5.  On 7 September 1999, the applicant went on sick call for a lesion he
discovered on his lower leg which did not heal after he scratched it.  On
13 September 1999, the lesion was “shaved” off and biopsied.

6.  On 23 September 1999, the results of the biopsy were reviewed.  The
biopsy only showed black scale.  However, the physician stated that due to
the superficial nature of the biopsy, a definitive diagnosis could not be
made.  The physician explained that a superficial biopsy was conducted
because of the medication the applicant was taking at the time.  The
physician stated that he informed the applicant of the results of the
biopsy and that it wasn’t a definitive diagnosis.

7.  The applicant’s period of active duty was extended, and he was
honorably released from active duty on 16 February 2000.

8.  On 10 May 2000, the applicant was examined by a civilian physician who
diagnosed him as having squamous cell carcinoma (squamous cell carcinoma is
one of the three most common types of skin cancer: basal cell, squamous
cell, and melanoma.  Squamous cell cancers can metastasize [spread] and
should be removed surgically as soon as they are diagnosed) of the left
leg.  The lesion was then surgically removed.

9.  The pathology of the removed lesion resulted in a finding of
hyperkeratotic actinic keratosis with in-situ squamous dysplasia (a pre-
cancerous skin growth usually caused by sun exposure.  By itself, actinic
keratosis is benign, but it may develop into skin cancer [MEDLINE PLUS]).

10.  On 22 May 2000, an informal LODI was initiated.  In the commander’s
portion of that form, it was stated that the applicant indicated that he
developed cancer at the site of a tick bite he received while on active
duty on 7 July 1999.  “Service member experienced a non-healing lesion on
lower left extremity with biopsy at Walson AF Clinic, Ft. Dix, on/about 16
Sept 99.  Service member claims development of cancer at spot of biopsy
while on ADT.”

11.  On 15 November 2000, a formal LODI was completed.  The officer
conducting the LODI stated that the Division Surgeon stated in a sworn
statement that the applicant’s actinic keratosis was undoubtedly a chronic
and pre-existing condition [it existed prior to his entry on active duty].
Because of the pre-existing nature of the condition, the officer conducting
the LODI recommended that it be considered NLD-NDOM.

12.  On 23 April 2001, a legal review was made of the LODI.  In that review
it was stated that the LODI was found to be legally sufficient; that all
legal requirements had been complied with; that no material errors in the
processing existed; and that the finding of NLD-NDOM was supported by
substantial evidence.  As part of the legal review, the regulation which
governs LODIs was quoted as saying that the presumption of sound mental and
physical condition of a soldier can only be overcome by substantial
evidence that the injury or disease was sustained or contracted while
neither on active duty nor in authorized training.  The regulation then
cites two specific examples of conditions which meet that burden of proof.
The first is “Lesions or symptoms of chronic disease so near the date of
entry on active duty or authorized training that they could not have
started after entry.”  The second was “Disease within less than the minimum
incubation period after entry on active duty or authorized training.”  The
officer conducting the legal review continued that the statements submitted
by the applicant established that the applicant developed the lesion within
6 weeks of his entry on active duty.  Based on the medical opinion obtained
in the processing of the LODI which stated that actinic keratosis takes
from 10 to 20 years to develop, the applicant’s condition had to be
considered NLD-NDOM because it existed prior to service.

13.  That recommendation of NLD-NDOM was then approved.

14.  The applicant had submitted rebuttals throughout the process, and had
submitted letters to his brigade commander, the commanding general of his
division, the Assistant Secretary of Defense, his elected representative,
the officer conducting his LODI, and the inspector general.

15.  Army Regulation 600-8-1, the regulation which prescribes the policy
and procedures for conducting LODIs, paragraph 41-8 states, in pertinent
part, that if an existing prior to service (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 NLD-
NDOM, 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.

16.  In accordance with title 38, U.S. Code, section 1110, for disability
resulting from personal injury suffered or disease contracted in line of
duty, or for aggravation of a preexisting injury suffered or disease
contracted in line of duty, in the active military, naval, or air service,
during a period of war, the United States will pay to any veteran thus
disabled and who was discharged or released under conditions other than
dishonorable from the period of service in which said injury or disease was
incurred, or preexisting injury or disease was aggravated, compensation as
provided in this subchapter, but no compensation shall be paid if the
disability is a result of the veteran's own willful misconduct or abuse of
alcohol or drugs.
17.  The Court of Claims and the Comptroller General of the United States
have held that short periods of active duty do not give rise to the
presumption of the cause of an illness or disease.

18.  Army Regulation 135-381 provides the standards of eligibility for
medical care, continuation of pay (incapacitation pay) and physical
disability separation for reservists and guardsmen.  In order to be
eligible for any of the benefits provided by this regulation, the disabling
condition must have been incurred or aggravated while in a duty or travel
status.  It must also be approved as having been incurred ILD.

19.  In the processing of this case, an advisory opinion was obtained from
the Human Resources Command, Alexandria (HRC-A).  In that opinion, it was
acknowledged that the LODI was not conducted in the time required by Army
regulations.  This was because the officer conducting the LODI sought
expert medical opinion on the complicated medical facts in the case.
However, that delay did not appear to have any prejudicial effect on the
applicant’s procedural rights or the disposition of his case.  The
applicant’s other contentions are also addressed individually, and found to
be either without merit or errors which did not prejudice the applicant’s
procedural rights or the disposition of his case.  The HRC-A opines that
the applicant’s case is without merit and his contentions do not establish
a legal basis for relief.

20.  The applicant was furnished a copy of this advisory opinion, and opted
to submit a rebuttal.  In that rebuttal he questions why a military
officer, especially the officer which had been instrumental in the NLD-NDOM
finding he has requested to be corrected, is giving the Army Board for
Corrections of Military Records (ABCMR) an advisory opinion.  He cites the
law which established the ABCMR as requiring it to be comprised of only
civilians.  He continues that many aspects of the opinion are only opinion,
and are not supported by fact.  He contests the opinion’s contention that
the proper command conducted the LODI, he contends that the response to the
delay in processing his LODI is unacceptable, he challenges the statement
that the replacement of the officer conducting the LODI effectively
eliminated any appearance of conflict of interest, and he contends that his
Agent Orange exposure while serving in Vietnam is what caused his cancer.
In general, the applicant charges that the delay in processing his LODI
would not have occurred if he were a general officer, and that the whole
LODI was conducted in a manner which would cover up the violations of
regulations which occurred in his case.  The applicant also points out the
grammatical errors contained in the advisory opinion.

DISCUSSION AND CONCLUSIONS:

1.  From the applicant’s statement that he does not dispute that his
actinic keratosis takes from 10 to 20 years to develop, it appears that he
doesn’t understand how a finding of EPTS influences a LODI.  In this
regard, a LODI determines whether the military will provide certain
benefits to a soldier.  In this regard, the Army is permitted by regulation
to compensate only those individuals who are injured or who contract a
disease while on a duty status.  The manifestation of symptoms of a disease
is not the same as contracting a disease.  As such, when a disease
manifests itself in a soldier who is performing short periods of active
duty, the regulation which governs LODIs requires that it be determined
whether the disease EPTS.

2.  In the applicant’s case, the overwhelming medical evidence supports the
fact that he had contracted actinic keratosis a decade or decades before he
ever entered the period of active duty wherein he exhibited symptoms of the
disease.  As such, the finding of NLD-NDOM was and is appropriate.

3.  The applicant raises many issues concerning whether the proper
regulations were followed in the processing of his LODI, and whether the
original officer conducting the LODI was impartial.  None of these issues
have any bearing on the bottom line of the case – that he did not contract
his actinic keratosis with in-situ squamous dysplasia while on active duty.
 It does not matter whether he had the lesion when he entered on active
duty or not.  It does not matter whether mistakes were made in the
processing of his LODI.  The bottom line remains the same.

4.  It would appear that the applicant believes that the errors he
perceives to have occurred in the processing of his LODI mandate that the
Army consider his disease as incurred in the line of duty.  Without
evidence to show that he actually contracted actinic keratosis while on
that period of active duty, his LODI was properly approved as NLD-NDOM.

5.  The applicant contends that his actinic keratosis should be considered
in line of duty by the Army since it was the result of his purported
exposure to Agent Orange in Vietnam.  This claim is not supported by the
evidence.

6.  Since the applicant’s actinic keratosis was properly determined to be
NLD-NDOM, there was no basis for providing him follow-up medical care,
incapacitation pay or reimbursement for the expenses he incurred to obtain
his medical treatment.

7.  While not germane to whether the applicant’s LODI was proper, his
statement that he was discovered to have cancer while he was on active duty
and the cancer was left untreated for 5 months, should be addressed for the
record.  Contrary to the applicant’s contention, he was not diagnosed as
having cancer while on active duty.  The “shaved” biopsy showed only black
scale.  The physician explained to the applicant that because of the
superficial nature of the
biopsy, a definitive diagnosis could not be made.  The physician also
explained that a superficial biopsy was conducted because of the medication
the applicant was taking at the time.

8.  Also not germane to the outcome of this case is the applicant’s
question of why a military officer provided the ABCMR an advisory opinion
in his case.  However, for the sake of clarification, this statement will
be addressed.  As the applicant states, the law requires the ABCMR to be
comprised of senior civilians.  This is, in fact, how the ABCMR is
comprised.  However, there is no statutory or regulatory prohibition for
the ABCMR to obtain advisory opinions, or to request other forms of
support, from the uniformed personnel of the Department of the Army.

BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

___rjw___  ___rwa__  ___jd ___  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.





            _________Robert J. Wagner____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20030-1357                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040518                                |
|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.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |