RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        20 OCTOBER 2005
      DOCKET NUMBER:  AR20050007658


      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             |
|     |Ms. Deborah L. Brantley           |     |Senior Analyst       |


      The following members, a quorum, were present:

|     |Mr. John Meixell                  |     |Chairperson          |
|     |Mr. James Gunlicks                |     |Member               |
|     |Ms. Jeanette McCants              |     |Member               |

      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 reconsideration of his earlier request to
correct his November 2000 LODI (line of duty investigation) to show "in
line of duty" vice "not in line of duty."

2.  In addition to requesting reconsideration of his original request to
the Board, the applicant also notes in his recent correspondence that the
original Board failed to address the real issue in his case.  He notes that
a medical condition was discovered while he was on active duty, but was not
treated and resolved before he was released from active duty, and he would
like that situation rectified.  He implies he was entitled to be retained
on active duty until the condition was resolved or, at the very least,
reimbursed for associated medical expenses, and incapacitation pay.

3.  The applicant states that medical conditions discovered within 90 days
of separation are covered and are the responsibility of the applicable
service branch.  He states that he had several medical conditions treated
during his current tour of active duty and at no time did any one inquire
when the conditions occurred of if he had them prior to coming on active
duty.  He maintains that his 1999 cancer condition was mishandled and he
has found out over 4 years that you play hell getting the Army to admit to
errors.

4.  In earlier correspondence to the Board, dated 14 June 2004, he states
he had been on active duty for over 100 days when the biopsy was done,
stayed on active duty over 150 days after the biopsy, and the lesion had
not healed when he was removed from active duty.  He states that the biopsy
clearly states what the lesion could be, and that cancer was one of the
possible diagnoses, therefore, the Army medical personnel should have
treated the lesion until the condition was resolved.

5.  The applicant cites his being fitted for hearing aids when tests
indicated a moderate hearing loss, a surgically removed pre-cancer on his
skin which was discovered during an annual skin cancer review which was
prompted by the cancer that is the root of this appeal, two total hip
replacements based on bilateral degenerative arthritis of his hips, and
being fitted with glasses for vision loss, as evidence that medical
conditions which existed prior to his recent entry on active duty, when
discovered on active duty, were appropriately treated.  He maintains the
same thing should have happened in 1999 after the initial biopsy.


6.  The applicant states that the issue has always been improper medical
care, but after the fact and having been released from active duty his only
recourse was a favorable line of duty determination, because the Army was
not going to admit error in medical treatment.

7.  The applicant provides a May 2004 medical treatment document showing
detection of hearing loss, selection of hearing aids, and that order forms
were completed to order hearing aids; a February 2004 automated version of
a SF Form 513 (Medical Record-Consultation Sheet) noting he had some
precancerous skin lesions removed in July and August 2003; and a July 2004
letter from a physician noting the applicant's right hip was replaced in
June 2004 and was scheduled for left hip replacement in August 2004 at the
Atlanta Orthopedic and Arthroscopy Center.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were
summarized in the previous consideration of the applicant's case by the
Army Board for Correction of Military Records (ABCMR) in Docket Number
AR2003091357, on 18 May 2004.

2.  The applicant's medical treatment documents and the July 2004 medical
statement are considered new evidence not previously reviewed by the Board
and as such warrant consideration.  He also argues that because his cancer
was discovered within 90 days after his separation that the Army was bound
to treat the condition which would have resulted in his retention on active
duty, payment of medical expensive, and/or entitlement to incapacitation
pay.  Such argument is new and in effect, constitutes a new request which
warrants consideration.

3.  A September 1999 Surgical Pathology Report notes:

      Sections revewal a hypertrophic, verruciform squamous growth of mildly
      atypical keratinocytes with abundant hyperkeratosis and parakeratosis.
       Focally there appears to be a collaretter.  Dilated vessels are
      present in the cermal papillae.  No significant hypergranulosis is
      seen.  Due to the superficial nature of the biopsy, a definitive
      diagnosis cannot be rendered [emphasis added].  The differential
      diagnosis includes hypertrophic actinic keratosis, keratoacanthoma, or
      squamous cell carcinoma.  Correlation is recommended and follow up
      recommended.


4.  A performance evaluation report, for the rating period ending in
September 1999, indicated the applicant received the highest possible
ratings in every area, including physical fitness.  His performance
evaluation report rendered for the period ending in February 2000 was
similar.

5.  The applicant was released from active duty at Fort Dix, New Jersey on
16 February 2000 as a result of "self terminating orders" and completion of
his period of ADT (Active Duty for Training).  He was transferred to the
78th Division, a United States Army Reserve element in Richmond, Virginia.

6.  As noted in the Board's original Record of Proceedings, the applicant
was examined by a civilian physician who rendered a diagnosis of squamous
cell carcinoma on the left leg and surgically removed a lesion.  The
pathology report, dated 11 May 2000, noted the removed lesion showed
"Hyperkeratotic actinic keratosis, completely excised" which was further
defined in the Board's original Record of Proceedings with a notation that
the lesion was benign but could develop into skin cancer.  The lesion
removal was accomplished at the Fredericksburg Ambulatory Surgery Center
following an 18 April 2000 referral from the applicant's physician.  The
applicant's physician noted the applicant had come to him on 10 April 2000.

7.  According to a March 2003 order issued by the United States Army
Reserve Personnel Command in St. Louis, Missouri, the applicant, then a
member of the United States Army Reserve Control IMA (individual
mobilization augmentee), was ordered to active duty at Fort McPherson,
Georgia for 365 days in support of "Partial Mobilization – Operation
Enduring Freedom."  His reporting date was established as 14 April 2003.

8.  The January 2004 automated version of SF 513, provided by the applicant
in support of his request, requested a routine medical consult for the
applicant.  The military physician noted that the applicant had seen a
physician in Atlanta, Georgia in July 2003 and August 2003 where he had
some precancerous skin lesions removed and needed to return to that same
physician for a 6 month follow-up.  The consult requested that the
applicant be evaluated for any reoccurrence of lesions.  The consult
request noted the applicant was enrolled in TRICARE Prime.

9.  On 5 February 2004 orders were issued amending the applicant's March
2003 orders to show that he was ordered to active duty for a period not to
exceed 730 days, vice the original 365 days.

10.  On 26 May 2004 the applicant underwent an audiological evaluation at
Eisenhower Army Medical Center as a result of a referral from Fort
McPherson due to hearing loss noted on a recent physical.  The evaluation
noted there were no previous records from active duty and records from St.
Louis were not available.  It indicated the applicant had no previous
formal profile for hearing but did state the applicant reported an "H-2"
profile for many years.

11.  The audiological evaluation concluded the applicant had mild to
moderate hearing loss in his right ear and mild to severe hearing loss in
his left ear and that he met the profile guidelines for an H-3 profile.
Paperwork for ordering hearing aids was completed.

12.  The 14 July 2004 statement from a physician at the Atlanta Orthopedic
and Arthroscopy Center in Riverdale, Georgia, which was provided by the
applicant in support of his request, was addressed "To Whom It May
Concern."  The statement noted the applicant was being treated for a
diagnosis of bilateral degenerative arthrosis of the hips, had undergone a
total right hip replacement at Southern Regional Medical Center on 29 June
2004, and would be totally disabled until his second surgical procedure
(total left hip replacement) scheduled for 17 August 2004.  At that point
the physician stated the applicant would be able to return to light duty
work status approximately 6 weeks later.

13.  By December 2004 orders were issued by the United States Army Human
Resources Command in Alexandria retaining the applicant on active duty
under the provisions of Section 12301(d), of Title 10, United States Code
and assigned him to the Medical Retention element at Fort McPherson through
3 June 2005.  That date was extended through the latter part of November
2005 in May 2005.

14.  Section 12301(d) of Title 10, United States Code states that at any
time, an authority designated by the Secretary concerned may order a member
of a Reserve component under his jurisdiction to active duty, or retain him
on active duty, with the consent of that member.

15.  Army Regulation 135-381 states that Reserve component members who are
ordered to active duty for a period of more than 30 days are authorized
medical care for themselves and their authorized dependents on the same
basis as their Active Army counterparts.

16.  Army Regulation 135-381 also states that an injury, illness, or
disease manifesting itself after completion of duty or travel status does
not qualify a Soldier for Government provided or funded medical or dental
treatment.  An exception may be made if there is clear and convincing
evidence that the injury, illness, or disease was incurred or aggravated in
a duty or travel status, providing the Soldier is otherwise qualified.  The
regulation cites as an example a disease condition which manifests itself
after completion of training, but the service medical authority determines,
based on the known incubation period of the disease or nature of the
condition, that the Soldier could only have contracted the disease or
condition while in a duty status, the disease or condition may be
determined to have been incurred in the line of duty.

17.  Section 204, of Title 37, United States Code provides authority for
continuation of pay and allowances under certain circumstances to Soldiers
who are disabled in the line of duty from injury, illness, or disease
incurred or aggravated while in a duty or travel status.  Prerequisites for
entitlement to incapacitation pay are inability to perform normal military
duties or satisfactory demonstration of loss of nonmilitary earned income.
A Soldier disabled on or after 30 September 1988 who is determined unable
to perform normal military duties may receive full military pay and
allowances.  However, if a Soldier in this category continues to receive
income from non-military sources, this income will be deducted from the
incapacitation pay entitlement.  If a Soldier can perform normal military
duties, but loses nonmilitary income for an injury, illness, or disease
incurred or aggravated on or after 30 September 1988, the Soldier is
entitled upon request, to a portion of pay and allowances.  It would be an
amount equal to lost civilian earned income or full pay and allowances,
whichever is less. Incapacitation pay may be paid for up to a maximum of 6
months.  Only the most meritorious requests will be approved for payment
beyond the 6 months limits and then only with the approval of the Secretary
of the Army.  The period of time in which a Soldier receives incapacitation
pay is not creditable service for “active” duty purposes.

DISCUSSION AND CONCLUSIONS:

1.  The applicant is no longer arguing that his LODI should have been
corrected from "not in line of duty" to "in line of duty" and the evidence
submitted with his current request does not support a conclusion that such
a correction is or was warranted.  As such, that portion of his request
pertaining to reconsideration of his original application warrants no
further discussion or consideration.

2.  The applicant is now arguing, and claims that it has always been his
argument, that he did not receive the proper medical care after a lesion on
his leg was shaved off and biopsied in September 1999 when he was on active
duty and that he should have been retained in an active status until the
possible resulting condition was resolved.  He also now argues that because
the September 1999 biopsy suggested that cancer was a possibility and
because within 90 days after his separation such a diagnosis was made he is
therefore also entitled to incapacitation pay and reimbursement of medical
treatment cost.  His argument is primarily based on two issues; one, that
his condition was discovered within 90 days of his separation and, two;
that medical treatment for various conditions during his current tour of
duty, even if those conditions were not incurred or aggravated while in an
active status, is evidence that treatment of the 1999 condition also
warranted continued treatment.

3.  The applicant's belief that a medical condition discovered within 90
days after separation from active duty is the responsibility of the
applicable service branch is not supported by any evidence available to the
Board or provided by the applicant.  Army Regulation 135-381 clearly states
that an injury, illness, or disease manifesting itself after completion of
duty or travel status does not qualify a Soldier for Government provided or
funded medical unless there is clear and convincing evidence that the
injury, illness, or disease was incurred or aggravated in a duty or travel
status.  The LODI has already determined that such was not the case.

4.  To argue that simply because a medical condition is discovered within
90 days after separation from active duty it was somehow the responsibility
of the applicable medical department would mean that everything from the
common cold to pregnancy discovered or occurring within 90 days after
separation from active duty should somehow be managed and cared for by the
associated military branch.  Such an argument is neither reasonable, nor
logical.

5.  The applicant's argument that he did not receive appropriate medical
care and that he should have been retained in an active status until his
medical condition was resolved is also not supported by the evidence of
record.  He went to a military medical treatment facility in September 1999
regarding his concern for a lesion on his leg.  He received the treatment
considered appropriate at the time.

6.  The fact that cancer may have been a possibility and even noted at the
time, and that the possibility subsequently manifested itself is not
evidence that the applicant should have been retained on active duty or
that he did not receive adequate medical care.  If such an argument were
valid, a Soldier on active duty who is advised to quit smoking, lose
weight, and exercise more because of the possibility that such conditions
could cause cancer, heart disease or high blood pressure, would also need
to be retained beyond their separation in the event that the possibility
became a reality.


7.  The applicant is correct in noting that medical conditions which may
not have been incurred while on active duty, such as his hearing loss,
follow-up treatment for precancerous skins lesions, and hip replacement
were federally funded.  However, the basis for treatment of those
conditions stems not from the fact that their source was or was not
militarily related but from the fact that the applicant was on active duty
for more than 30 days and under the provisions of Army Regulation 135-381
was authorized medical care on the same basis as his Active Army
counterpart.  It is not evidence that he received less than adequate
medical treatment in 1999 or that he should have been retained on active
duty following his 2000 release from active duty, reimbursed medical
treatment expenses, or entitled to incapacitation pay.

8.  The applicant's performance evaluation reports indicate that he
continued to perform his duties in an outstanding manner following that
medical treatment.  There was no indication that he was incapacitated in
any way and as such there would have been no basis for incapacitation pay.

9.  In order to justify correction of a military record the applicant must
show, 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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__JM ___  __JG____  __JM ___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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 to amend the decision of
the ABCMR set forth in Docket Number AR2003091357, dated 18 May 2004.




2.  The Board also determined that the overall merits of this case are
insufficient as a basis for correction of the records of the individual
concerned as it pertains to retention on active duty beyond his 2000
release from active duty, entitlement to reimbursement of medical expenses,
and entitlement to incapacitation pay.


                                  ______John Meixell_______
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050007658                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051020                                |
|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.                      |                                        |


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