IN THE CASE OF:	  

		BOARD DATE:  6 December 2012

		DOCKET NUMBER:  AR20110020711 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests correction of the records of her deceased husband, a former service member (FSM), as follows:

* reinstating him to active duty (AD)
* paying him all pack pay and allowances and crediting him with retirement points from 9 November 2008 through 29 December 2010
* showing his family is entitled to receive all benefits afforded to a Soldier who dies on AD

2.  She states the FSM continually went to sick call throughout his mobilization during the period 23 October 2007 through 9 November 2008 and no medical diagnoses were made.  Upon his return home, he went to the emergency room in Stillwater, OK, on several occasions.

3.  She adds that in February 2009, he was diagnosed with colon cancer.  If he had been properly diagnosed while deployed, he would have remained on AD to receive medical treatment.  The FSM underwent surgery on 4 March 2009 to remove his colon and went back into the hospital on 16 November 2009 for reconstructive surgery.  However, he never made it out of the hospital as he passed away on 29 December 2009.

4.  The applicant states the FSM's military medical records were lost during his mobilization.



5.  The applicant provides copies of:

* mobilization orders
* temporary change of station orders
* release from AD (REFRAD) orders
* Notification of Eligibility for Retired Pay at Age 60 (20-year letter)
* Reserve Component Survivor Benefit Plan (RCSBP) Election Certificate
* Army National Guard (ARNG) Retirement Points History Statement
* four Standard Forms 600 (Chronological Record of Medical Care), dated 29 and 30 January 2008, 2 May 2008, and 12 November 2009
* line of duty (LOD) investigation records
* memorandum from The Adjutant General (TAG), Oklahoma Army National Guard (ARNG)
* numerous other memoranda 
* State ARNG and National Guard Bureau (NGB) medical opinions
* death certificate
* numerous civilian medical treatment and hospitalization records for the following periods from the organizations listed –

* Stillwater Medical Center – 3 January-25 May 2009
* Saint Francis Hospital – 25 February-29 December 2009
* Cancer Care Associates – 25 March-6 October 2009
* Tulsa Colon and Rectal Surgery, Incorporated – 12 January-27 October 2009

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 21 September 1967.  He enlisted in the Oklahoma ARNG on 30 September 1987.  His record shows he was previously married to L____ M. M____ and the two were divorced on 28 September 2007.  From this union, the FSM had one dependent daughter who was born on 8 April 2002.

2.  He married the applicant on 4 October 2007.  The FSM was issued his 
20-year letter on 2 October 2007 and completed an RCSBP Election Certificate on 11 October 2007.  This form shows:

* he listed the applicant, his daughter, and stepson in section III (Spouse/Dependent Child(ren) Information)
* in section IV (Coverage) he elected option C (Immediate Annuity) for spouse and children
* he elected full retired pay in section V (Level of Coverage)
* he also elected in section VI (Supplemental SBP Coverage (Optional)) at 15 percent

3.  The applicant provided copies of the following orders:

* Orders 292-456, dated 19 October 2007, show the FSM was ordered to AD for a period not to exceed 400 days with a reporting date of 26 October 2007 to the mobilization station
* Orders 024-746, dated 24 January 2008, show the FSM was scheduled to deploy to Iraq on 26 January 2008 for a period of 306 days

4.  The Standard Forms 600 she provided for the following dates show the FSM was screened and/or treated for the following conditions or illnesses.

	a.  On 29 January 2008, the FSM was seen by the theater clinic for a common cold.  The FSM stated he felt tired or poorly with fever and chills.  He was noted not to have any gastrointestinal symptoms such as nausea, vomiting, or abdominal pain.  He was diagnosed with a common cold, given cold medication, and returned to duty.

	b.  On 30 January 2008, the FSM returned to the theater clinic with abdominal pain.  The FSM was medically evacuated to Arifjan Medical Center for further evaluation of acute abdomen pain/appendicitis.

		(1)  The imaging studies show an acute abdominal series x-ray was performed which showed diffuse (loose) stool/air pattern, otherwise normal.  He was noted to have reduced bowel sounds.

		(2)  Upon examination, his abdomen, was flat, soft, with normal percussion, diffuse bilateral lower and periumbilical tenderness to palpitation, worse with rebound.

		(3)  No medical diagnosis was listed on the Standard Form 600.  However, his condition was noted not to be work or battle related.  He was given cefazolin and ibuprofen with 24-hour restriction to quarters.  He was directed to drink plenty of fluids and to eat normal meals.

	c.  On 2 May 2008, the FSM was given an Anthrax vaccination.

5.  The applicant provided Orders 285-0248, dated 11 October 2008.  These orders show the FSM was scheduled to be REFRAD, not by reason of physical disability, on 9 November 2008.  The additional instructions state, in part, "Soldier is eligible for Transitional Health Care under [Title 10, U.S. Code,] Section 1145 until 8 May 2008 [sic]."

6.  Accordingly, his DD Form 214 shows he was honorably REFRAD by reason of completion of required active service and transferred to State ARNG control on 9 November 2008.

7.  The civilian medical documents the applicant provided show, in part, the FSM's diagnoses, prognosis, procedures, and follow-on medical care as described below.

	a.  On 3 January 2009, the FSM arrived by ambulance to the Stillwater Medical Center.  He complained of nausea, vomiting, and diarrhea for 2 days.  He was unable to eat or drink and had a fever and body aches.  He was not diagnosed with any medical condition at this time.  He was given fluids and medication through intravenous means and discharged on 4 January 2009.  He was further instructed to see his primary care provider for follow-on care.

	b.  He reported to the emergency room again on 19 January 2009 with the same medical complaints and showed a weight loss of 20 pounds.  After a radiological examination with oral contrast, he was noted not to have any abnormalities of the solid organs of the abdomen; however, he had diffuse thickening and enhancement of the wall of the colon which was consistent with diffuse colitis.  He was diagnosed with viral gastroenteritis, pseudomembranous colitis, clostridium difficile pancolitis, volume depletion, and hyponatremia.  He was discharged on 24 January 2009 and referred to his primary care provider.

	c.  The FSM went to the emergency room several more times with the same complaints following his 24 January 2009 discharge from the Stillwater Medical Center.

	d.  On 23 February 2009, he arrived at the Stillwater Medical Center with the same symptoms and was diagnosed with acute exacerbation of chronic diffuse colitis.  He was transferred by a privately-owned vehicle to Saint Francis Hospital in Tulsa, OK, the same day.

	e.  He underwent a colonoscopy on 25 February 2009.  The procedure revealed multiple colon polyps throughout the colon and the larger polyps were biopsied.  The findings showed over 100 polyps diffusely throughout the colon, suggestive of familial polyposis.  There was a mass in the midsigmoid colon suggestive of carcinoma (cancer).

	f.  On 3 March 2009, he underwent restorative proctocolectomy with loop ileostomy surgery.  The post-procedure diagnosis showed familial polyposis.

	g.  A letter from the Cancer Care Associates, dated 25 March 2009, shows the FSM was diagnosed with familial polyposis and noted upon resection to have an adenocarcinoma involving his sigmoid colon.  The evaluating physician suggested consideration of adjuvant chemotherapy because of the FSM's young age; however, the benefit was small and in many studies did not improve overall survival.

	h.  The FSM continued to receive medical treatment and care from the Cancer Care Associates.  He was noted to have healed from the surgery, not to have revealed any acute distress, and to have gained weight.

8.  A memorandum, undated, subject:  Purpose of Attached Document (Statement of Medical Condition and Treatment Plan), shows the Medical Branch Chief, Oklahoma ARNG, requested that the attending physician complete the attached form for the purpose of placing the FSM on AD status for medical treatment.  The FSM's medical condition had been identified as a disqualification for performing his military duties and he was noted not to have the same recourse to pay and benefits that were normally associated with an AD Soldier without being formally placed on AD.

	a.  The Statement of Medical Condition and Treatment Plan was required by the U.S. Army Human Resources Command in order to issue appropriate orders.

	b.  The attached document, dated 6 April 2009, shows the FSM was diagnosed with colon cancer.  He had undergone surgery on 2 March 2009 and was receiving chemotherapy treatments.  The prognosis for recovery was stated to be excellent and full recovery was expected.  The final disposition of this request is not in the available record.

9.  A medical opinion from the Oklahoma ARNG State Surgeon shows that after his review, the FSM appeared to have presented to sick call in June 2008 with gastrointestinal and colon-related symptoms.  He reported to sick call three more times without resolution of the symptoms.  After REFRAD, the FSM continued to have similar symptoms and was diagnosed with polyps and carcinoma of the colon.  He added that the FSM was misdiagnosed in theater and it was unknown at the time if a more timely and correct diagnosis would have resulted in a lesser degree of severity with less treatment needed.  His condition was found to have been in the LOD.

10.  A memorandum, dated 9 September 2009, subject:  LOD – (FSM), shows the FSM reported to sick call with gastrointestinal issues four times while serving on AD.  He was diagnosed with colon cancer after his REFRAD based on the same symptoms.

11.  A Standard Form 600, dated 12 November 2009, which was also provided by the applicant shows the FSM attended an appointment with Family Practice Clinic of the 72nd Medical Group to obtain a referral for follow-on surgery for a reversal ileostomy.  At the time of his visit, he was not noted to have any medical complaints, vomiting, or nausea.

12.  A medical document from Saint Francis Hospital, dated 17 November 2009, shows the FSM underwent a loop ileostomy closure procedure on 16 November 2009.  He was sent to the recovery room in good condition.  The post-procedure diagnoses showed he had a history of familial polyposis and colon cancer.

13.  On 25 November 2009, the FSM underwent unscheduled general surgery.  The pre-procedure status showed he developed extensive upper gastrointestinal bleeding after his most recent surgery.  He also developed an extensive bowel obstruction which required nasogastric suction.  His small bowel was filled with 2,500 milliliters of melenic (black) stool.  The surgery included exploratory laparotomy, lysis of adhesions, small bowel resection, and two enterotomy (small bowel) repairs.

14.  The FSM's death summary as prepared by Saint Francis Hospital on 12 January 2010 contains the following information.

	a.  After the 25 November 2009 procedure, the FSM was noted to have had intraoperative (during surgery) soilage; tested positive for enterococcus (lactic acid bacteria) which was treated with antibiotics; and to have developed acute respiratory distress syndrome (ARDS), respiratory failure, extensive leukocytosis (elevated number of white cells in the blood), and bilateral pneumothoraces (abnormal presence of air in pleural cavity of the lung).

	b.  The FSM's condition continued to deteriorate due to his ARDS and his wife chose to withdraw care.  He expired on 29 December 2009.

	c.  An autopsy revealed pulmonary fibrosis involving all lung nodes, gastric polyps, splenomegaly (enlarged spleen), and hepatomegaly (enlarged liver).

15.  The FSM's death certificate shows colon cancer as the immediate cause of death.

16.  A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 30 December 2009, shows the FSM experienced symptoms of colon carcinoma and polyps while deployed, he sought medical treatment, and he was given an alternative diagnosis.  He continued to have discomfort and sought medical treatment after his demobilization wherein he was diagnosed with colon cancer.  His condition was found have occurred in the LOD.

17.  A DD Form 261 (Report of Investigation – LOD and Misconduct Status), dated 3 February 2010, also provided by the applicant indicates the circumstances surrounding the FSM's carcinoma of the colon developed over time.  The FSM showed signs and symptoms while serving in an AD status on 1 June 2008 at Camp Bucca, Iraq, and over the course of 4 months, returned to sick call three more times with the same symptoms.

18.  A memorandum, dated 26 February 2010, from the NGB Surgeon shows he agreed with the findings of the investigating officer (IO).

19.  The FSM's ARNG Retirement Points History Statement prepared on 26 September 2011 shows, in part, he was an active ARNG member from 10 November 2008 through 29 December 2009.  He had a total of 2,371 career points for retired pay and 22 years and 3 months of creditable service for retired pay.  Staff sergeant (SSG)/E-6 was the highest grade he held.

20.  A memorandum from Joint Force Headquarters, dated 7 October 2011, subject:  Correction of Military Records for (FSM's name, social security account number, SSG) shows Major General M____ L. D____, the State TAG, requested placement of the FSM on AD from 10 November 2008 until 29 December 2009 and that his wife and children be afforded all rights and benefits of a Soldier who dies in an AD status.

	a.  He stated the FSM was under his command in Iraq and had been to the doctor many times prior to his REFRAD because of sickness.  An LOD determination was made and the IO determined the FSM's medical condition was in the LOD.

	b.  Furthermore, the FSM's signs and symptoms occurred while serving on AD and he should not have been REFRAD at the time.

21.  During the processing of this case, an advisory opinion was obtained from the Chief, Personnel Policy Division, NGB, on 29 August 2012.

	a.  NGB recommended approval of the applicant's request to reinstate the FSM to AD with all due back pay and allowances associated with this action.

	b.  NGB further stated that based on documentation obtained from the Electronic Medical Management Processing System, a diagnosis of the FSM's disease should have been determined while he was on AD, thus found to be in the LOD on 4 March 2012.

	c.  The advisory opinion also notes that significant facts show the FSM reported to sick call with gastrointestinal issues four times while serving on AD and after his REFRAD he was diagnosed with colon cancer based on the same symptoms.

22.  The applicant was provided with a copy of the opinion for response or rebuttal.  On 5 September 2012, she concurred with the recommendation of NGB.

23.  The FSM's complete service medical records are not available for review with this case.

24.  According to the Department of the Army Warrior Transition Unit (WTU) Consolidated Guidance:

	a.  The Medical Retention Program (MRP) is designed to compassionately evaluate and treat the Reserve Component (RC) Warriors in Transition (WT) with an LOD-incurred illness, injury, disease, or an aggravated pre-existing medical condition which prevents them from performing the duties required by their MOS and/or position and to, as soon as possible, return Soldiers to duty within their respective RC.

	b.  Post-Deployment – Soldiers arriving at the demobilization station and determined by military medical authority to have an LOD-incurred illness, injury, or disease or aggravated pre-existing medical condition connected to the current deployment will be offered the MRP program.  If the Soldier agrees to enter MRP, he or she is assigned to the installation WTU on Title 10, U.S. Code, section 12301(h), orders.  If a return to duty is not possible, then the WT should be processed through the Army Physical Disability Evaluation System (PDES).  This program applies to outpatient and inpatient WT currently serving on AD mobilized under Title 10, U.S. Code, section 12302, partial mobilization orders for operations in support of the Global War on Terrorism (GWOT).

	c.  Another program, the MRP2, is designed to voluntarily return Soldiers to temporary AD to evaluate or treat RC WT with unresolved mobilization-connected medical conditions that either were not identified or did not reach optimal medical benefit prior to their REFRAD.  This program applies to WT previously REFRAD while mobilized under Title 10, U.S. Code, section 12302, partial mobilization orders for operations in support of the GWOT.  Soldiers previously serving on AD orders in support of GWOT under another authority will be handled on a case-by-case basis.  A Medical Review Board (MRB) must determine that the Soldier is eligible for MRP2.  A Soldier is eligible with an LOD "yes" documenting unresolved medical issues and a completed application submitted through the current chain of command.

	d.  The RC Soldier has 6 months from the date of REFRAD to submit his application.  The Soldier must still be a member of the Selected Reserve or the Individual Ready Reserve.  Department of the Army Office of the Deputy Chief of Staff, G-1, is authorized to grant exceptions to policy.

25.  Department of the Army Personnel Policy Guidance (PPG), dated 1 July 2009, provides, in part, the requirements and procedures for redeployment, post-deployment, REFRAD, and demobilization of RC Soldiers.

	a.  Paragraph 6-7 covers the LOD process.  Every effort should be made to ensure informal LOD determinations are completed while the Soldier is still at the demobilization station.  Any LOD determinations not completed while the Soldier is still serving on AD must be sent through the electronic module to NGB for approval.

	b.  The final approval authority or the military treatment facility (MTF) commander is authorized to issue presumptive LOD determinations for Soldiers when an LOD investigation (DA Form 2173 (informal) or DD Form 261 (formal)) was not completed at the time of the Soldier's injury, illness or disease, or aggravation thereof, and the Soldier would be REFRAD without an LOD determination.  To make a presumptive LOD determination, the following criteria must be satisfied:

		(1)  The injury, illness, or disease occurred or was aggravated while the Soldier was ordered to AD for more than 30 days.

		(2)  The Soldier was on AD on or after 11 September 2001.

		(3)  The injury, illness, or disease may result in a future claim for disability or incapacitation pay or is expected to require continuing medical care after REFRAD.

	c.  Chapter 7 provides medical and dental guidance for personnel mobilized and/or deployed in support of contingency operations.  Upon redeployment from overseas locations, all individuals will undergo medical processing and will complete a separation health assessment questionnaire.  Personnel undergoing REFRAD will have a complete review of their DD Form 2697 (Report of Medical Assessment) and medical records by a physician, physician assistant, or nurse practitioner.  If the medical review of the Soldier's documentation does not indicate a need for a physical exam, then a physical exam is not required.

	d.  Chapter 7 also states a hands-on physical examination will be performed if during the interview the physician, nurse practitioner, or physician assistant feels a more in-depth examination, to include any additional medical/behavioral consultations and testing, is clinically indicated.  Soldiers with unresolved service-connected medical conditions may be retained voluntarily on AD until the conditions can be appropriately diagnosed and a treatment plan established.

	e.  The separation health assessment may only be waived if the Soldier has undergone a physical examination or assessment within 12 months prior to separation from AD, and then only with the consent of the Soldier and concurrence of the unit commander.

DISCUSSION AND CONCLUSIONS:

1.  The FSM was deployed to Iraq on 26 January 2008 and the findings of the LOD investigation state he showed signs and symptoms of his later-diagnosed colon carcinoma on four occasions during his deployment.

2.  In accordance with the PPG, all Soldiers who are REFRAD are required to complete a separation health assessment and receive a complete medical review by a trained medical professional.  If during the interview, the medical professional determines a more in-depth examination is needed, he/she will do so at that time.  The applicant has not provided sufficient evidence and the FSM's record is void of documentation indicating there was a medical condition which required his retention on AD.

3.  Soldiers with unresolved service-connected medical conditions may only be voluntarily retained on AD until the conditions can be appropriately diagnosed and a treatment plan established.  There is no evidence the FSM requested to be retained on AD for an unresolved medical condition.

4.  The FSM was REFRAD on 9 November 2008.  On 3 January 2009, he went to a civilian hospital’s emergency room.  However, he was not diagnosed with colon cancer then and was merely referred to his primary care provider for follow-


on care.  He reported to the emergency room again on 19 January 2009, but still he was not diagnosed with colon cancer or, it appears, even referred for a colonoscopy.  It was not until 25 February 2009, after he was transferred to another hospital, that he underwent a colonoscopy and was diagnosed with colon cancer.

5.  On 3 March 2009, he underwent surgery and the post-procedure diagnosis showed familial polyposis.  The prognosis for recovery was stated to be excellent and full recovery was expected.

6.  The FSM underwent a loop ileostomy closure procedure on 16 November 2009.  He was sent to the recovery room in good condition.  The post-procedure diagnoses showed he had a history of familial polyposis and colon cancer, indicating he was in remission at the time.

7.  On 25 November 2009, the FSM underwent unscheduled general surgery due to medical complications which resulted from the 16 November 2009 surgery.  He died from those complications on 29 December 2009. 

8.  The FSM's ARNG Retirement Points History Statement shows he was an active drilling ARNG member, earning retirement points, from the date of his REFRAD through the date he went into the hospital for his second surgery.  

9.  Regrettably, in view of the foregoing evidence and notwithstanding the State Adjutant General's opinion, there is no basis upon which to show the FSM was reinstated on AD with the attendant back pay and allowances and survivor benefits.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ___X__ _  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.



      _______ _  X ______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont)                                         AR20110020711



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ABCMR Record of Proceedings (cont)                                         AR20110020711



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